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Dale v. Virginia Retirement System

Court of Appeals of Virginia

June 22, 1999

VIRGINIA RETIREMENT SYSTEM Record Nos. 2756-98-3, 2757-98-3


(John M. Lamie; Browning, Lamie & Sharp, P.C., on briefs), for appellants.

(Mark L. Earley, Attorney General; Michael K. Jackson, Senior Assistant Attorney General; James W. Osborne, Assistant Attorney General, on briefs), for appellee.

Present: Elder, Bumgardner and Lemons, Judges.



Barbara C. McClanahan (McClanahan), Ruth C. Dale (Dale), and Lacy Potter-Meadows (Potter-Meadows) appeal orders of the trial court affirming decisions by the Virginia Retirement System (VRS) denying their claims for permanent disability retirement. McClanahan, Dale, and Potter-Meadows contend that (1) the trial court erred in finding that there was substantial evidence to support VRS's denial of benefits on the ground that they failed to prove that their disability was " likely to be permanent"; and (2) Code § 51.1-156 is vague because it does not provide adequate standards to guide the determination of whether a person is " permanently" impaired, and, thereby, unconstitutionally delegates to the Medical Review Board and private physicians the ability to determine arbitrarily whether such person is permanently impaired. Upon reviewing the records and the briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the trial court's decisions. See Rule 5A:27.


Standard of Review

" The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court." Code § 9-6.14:17. VRS is required to use a Medical Review Board (" the Board") to certify that a claimant's disability " is likely to be permanent." Code § 51.1-156(E)(ii). Our review of this determination asks only whether there was substantial evidence in the agency record to support the holding of the administrative agency. See Code § 9-6.14:17. " The phrase 'substantial evidence' refers to 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (citation omitted).

In accordance with well established principles, we view the evidence in the light most favorable to the prevailing party below, VRS in this instance. See R.G Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990).


McClanahan worked as a mineral license bookkeeper for Buchanan County for eleven years, last working on November 27, 1993. McClanahan's job duties required that she maintain all mineral cards and updates, generate correspondence, wait on the public, answer telephones, and perform other general office tasks.

On April 6, 1994, McClanahan, then age 44, filed an application with VRS seeking permanent disability retirement benefits. In her application, McClanahan alleged that she could no longer perform her job due to a nervous condition, heart problems, high blood pressure, and herniated discs. McClanahan had undergone back surgery in March 1993, was hospitalized for a heart attack in November 1993, and had undergone heart by-pass surgery in December 1993.

The Board reviewed medical records of Drs. Christopher J. Kennedy, Thomas M. Bulle, Richard A. Feit, and J.P. Sutherland, Jr. Those records revealed that McClanahan suffered from heart disease with myocardial infarction. In December 1993, she underwent a revascularization. Both cardiologists, Drs. Bulle and Kennedy, suggested that McClanahan undergo pulmonary function tests and blood gases. The pulmonary function tests were not performed, and the blood gases were normal.

In May 1994, Dr. Bulle noted that McClanahan had " some perceived difficulty breathing, " but he found normal lung fields and heart size with no " cardiac basis for her dyspnea." Dr. Bulle also noted that " based on her chest x-ray and clinic exam, I did not see any primary pulmonary process either."

By letter dated October 27, 1994, the Board denied McClanahan's application for permanent disability benefits. McClanahan appealed that decision.

On appeal, McClanahan submitted additional medical evidence including a psychological evaluation from Dr. L. Andrew Steward, a licensed psychologist, dated September 29, 1994, and a physical capabilities evaluation form completed by Dr. Steward. The Board also reviewed Dr. Sutherland's office notes. Dr. Steward diagnosed McClanahan as suffering from major severe depression, recurrent, and a generalized anxiety disorder, consistent with chronic pain syndrome due to a combination of major physical problems, including a heart attack and back surgery. Dr. Steward opined that " the combination and severity of factors do make her functionally disabled to work, and she will most likely be so indefinitely."

On March 14, 1995, Dr. Eric Moffett, a psychiatrist, evaluated McClanahan at VRS's request. Dr. Moffett reviewed McClanahan's medical records and her job description. Dr. Moffett diagnosed McClanahan as suffering from mild major depression, single episode. Dr. Moffett opined that McClanahan's depression would readily respond to medication. Dr. Moffett recommended that McClanahan ...

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