COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PEGGY C. JONES MEMORANDUM OPINION * v. Record No. 1736-99-3 PER CURIAM SEPTEMBER 5, 2000 VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF GILES COUNTY Colin R. Gibb, Judge
(Roger W. Rutherford; Wolfe & Farmer, on brief), for appellant.
(Mark L. Earley, Attorney General; Michael K. Jackson, Senior Assistant Attorney General; Brian J. Goodman, Assistant Attorney General, on brief), for appellee.
Peggy Jones appeals an order of the trial court affirming a
decision by the Virginia Retirement System (VRS) denying her claim
for permanent disability retirement benefits. She contends that
the trial court erred in finding substantial evidence to support
VRS's finding that she failed to prove permanent physical or
psychological disability. Upon reviewing the records and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the trial court's
judgment. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. In accordance with well established principles, we view the
evidence in the light most favorable to VRS, the prevailing party
below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence
established that Jones worked as a food operations assistant in
the Virginia Polytechnic Institute and State University
cafeteria for twenty-four years. Her job duties entailed
lifting trays and serving food, requiring that she be able to
bend, stand, and sit. She last worked in that capacity on
October 2, 1996.
On November 10, 1995, Jones, then age forty-two, filed an
application with VRS seeking permanent disability retirement
benefits. She alleged that she had back surgery in 1979 and
could no longer perform her job due to arthritis in her back.
Dr. C.L. Boatwright, who has treated Jones since 1991 for
persistent low back pain, opined that based upon "the
longstanding difficulty and with belief in the patient's
accurate description of her discomfort and with her failure to
respond to conservative treatment, I believe that she is
permanently disabled."
At the Medical Review Board's request, Dr. Morris E.
McCrary, III, a neurosurgeon, performed an independent
neurological consultation with Jones. After reviewing Jones's
medical records and examining her, Dr. McCrary reported as
follows:
- 2 - Mrs. Jones has a fairly normal objective neurological examination. She complains of symptoms which sound like musculoskeletal spasm. I reviewed the CT scan and did not find evidence for compression of the neural elements, and I think this is consistent with her exam. The subjective components of the neurologic examination that are positive are the sensory findings, so these do not appear associated with a single radicular distribution. I think she probably thinks she may have some musculoskeletal complaints, but that these are probably still best treated with conservative measures of exercise and muscle anti-spasmodics. At present, I do not find evidence for dysfunction or disability that would place limitations on her activities nor permanently prevent her from performing the job duties as described for a food operations assistant at Virginia Tech.
The Board reviewed Dr. Boatwright's opinion and Dr.
McCrary's opinion and recommended that the application be
denied. By letter dated February 22, 1996, VRS denied Jones's
application for permanent disability benefits. Jones appealed
that decision to the VRS for review.
On appeal, Jones submitted additional medical records from
Dr. Boatwright, including his February 13, 1996 office notes,
which reported as follows: "[Jones] does have a chronic low
back condition with degenerative joint disease. Past history of
disc surgery and some bulging discs by x-rays. She thinks that
she cannot work any longer than 4 hours because of excruciating
back pain. There is no definite radiation of the pain into her
legs." On March 18, 1996, Dr. Boatwright noted that although
- 3 - Dr. Siegel advised Jones to have physical therapy, she "does not
want to do this, saying it will not do any good." Relying upon
the Board's recommendation and Dr. McCrary's opinion, VRS denied
Jones's application. VRS noted that the additional evidence
submitted by Jones did not reveal evidence of a permanently
disabling condition. Jones appealed that decision, requesting
an informal fact finding hearing.
At the hearing, Jones described her back symptoms and the
limitations they have placed upon her life. Jones also
submitted an April 23, 1996 report from Dr. James Vascik, a
neurosurgeon who examined Jones upon referral from Dr.
Boatwright. In an April 23, 1996 letter to Dr. Boatwright, Dr.
Vascik reported the following:
[Jones] is of the opinion that she just can't work and wanted to know what she could do about her back pain. Other than to stay active and exercise, I have nothing further to offer. I told her she should also follow the recommendation of Dr. Siegel and yourself to participate in a formal therapy program and to be taught a home program. However, to be certain there is nothing going on that the CT does not show, I am going to get an MRI and an EMG and nerve conduction velocity.
The MRI was normal except for some minor scar tissue from
Jones's previous surgery. Dr. Vascik did not see a ruptured
disc or any pressure on the nerve roots. The EMG study was
normal, showing no evidence of any permanent nerve damage.
- 4 - In a January 14, 1997 evaluation, Dr. Boatwright noted that
"[t]his patient has been seen by multiple specialists and has
had some physiotherapy. All of this is without relief. I have
difficulty correlating the degree of her pain and disability
with the physical findings . . . . I would suggest that an
unbiased orthopedic specialist fully evaluate this patient."
In addition to these medical records, Dr. Philip B.
Robertson reported his findings based upon a January 10, 1997
independent psychiatric evaluation. Dr. Robertson diagnosed
Jones as suffering from adjustment disorder with mixed anxiety
and depressed mood and pain disorder associated with both
psychological factors and a general medical condition. Dr.
Robertson opined that Jones's "present psychiatric impairments
are a contributing factor to her disability but by themselves
would not preclude her functioning in some occupational
capacity."
Dr. Kenneth W. Gray, an orthopedist, reviewed Jones's
medical records, examined her upon VRS's request, and reported
as follows:
It is my impression that this patient is probably permanently disabled from doing any type of productive work activity based on her history and her inability to work for well over a year. This on clinical examination, however, we see no objective findings which would indicate a reason why this patient was not able to perform normal work activities and/or activities of daily living. . . . This appears to be primarily myofascial. . . . [T]his far down the line,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PEGGY C. JONES MEMORANDUM OPINION * v. Record No. 1736-99-3 PER CURIAM SEPTEMBER 5, 2000 VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF GILES COUNTY Colin R. Gibb, Judge
(Roger W. Rutherford; Wolfe & Farmer, on brief), for appellant.
(Mark L. Earley, Attorney General; Michael K. Jackson, Senior Assistant Attorney General; Brian J. Goodman, Assistant Attorney General, on brief), for appellee.
Peggy Jones appeals an order of the trial court affirming a
decision by the Virginia Retirement System (VRS) denying her claim
for permanent disability retirement benefits. She contends that
the trial court erred in finding substantial evidence to support
VRS's finding that she failed to prove permanent physical or
psychological disability. Upon reviewing the records and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the trial court's
judgment. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. In accordance with well established principles, we view the
evidence in the light most favorable to VRS, the prevailing party
below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence
established that Jones worked as a food operations assistant in
the Virginia Polytechnic Institute and State University
cafeteria for twenty-four years. Her job duties entailed
lifting trays and serving food, requiring that she be able to
bend, stand, and sit. She last worked in that capacity on
October 2, 1996.
On November 10, 1995, Jones, then age forty-two, filed an
application with VRS seeking permanent disability retirement
benefits. She alleged that she had back surgery in 1979 and
could no longer perform her job due to arthritis in her back.
Dr. C.L. Boatwright, who has treated Jones since 1991 for
persistent low back pain, opined that based upon "the
longstanding difficulty and with belief in the patient's
accurate description of her discomfort and with her failure to
respond to conservative treatment, I believe that she is
permanently disabled."
At the Medical Review Board's request, Dr. Morris E.
McCrary, III, a neurosurgeon, performed an independent
neurological consultation with Jones. After reviewing Jones's
medical records and examining her, Dr. McCrary reported as
follows:
- 2 - Mrs. Jones has a fairly normal objective neurological examination. She complains of symptoms which sound like musculoskeletal spasm. I reviewed the CT scan and did not find evidence for compression of the neural elements, and I think this is consistent with her exam. The subjective components of the neurologic examination that are positive are the sensory findings, so these do not appear associated with a single radicular distribution. I think she probably thinks she may have some musculoskeletal complaints, but that these are probably still best treated with conservative measures of exercise and muscle anti-spasmodics. At present, I do not find evidence for dysfunction or disability that would place limitations on her activities nor permanently prevent her from performing the job duties as described for a food operations assistant at Virginia Tech.
The Board reviewed Dr. Boatwright's opinion and Dr.
McCrary's opinion and recommended that the application be
denied. By letter dated February 22, 1996, VRS denied Jones's
application for permanent disability benefits. Jones appealed
that decision to the VRS for review.
On appeal, Jones submitted additional medical records from
Dr. Boatwright, including his February 13, 1996 office notes,
which reported as follows: "[Jones] does have a chronic low
back condition with degenerative joint disease. Past history of
disc surgery and some bulging discs by x-rays. She thinks that
she cannot work any longer than 4 hours because of excruciating
back pain. There is no definite radiation of the pain into her
legs." On March 18, 1996, Dr. Boatwright noted that although
- 3 - Dr. Siegel advised Jones to have physical therapy, she "does not
want to do this, saying it will not do any good." Relying upon
the Board's recommendation and Dr. McCrary's opinion, VRS denied
Jones's application. VRS noted that the additional evidence
submitted by Jones did not reveal evidence of a permanently
disabling condition. Jones appealed that decision, requesting
an informal fact finding hearing.
At the hearing, Jones described her back symptoms and the
limitations they have placed upon her life. Jones also
submitted an April 23, 1996 report from Dr. James Vascik, a
neurosurgeon who examined Jones upon referral from Dr.
Boatwright. In an April 23, 1996 letter to Dr. Boatwright, Dr.
Vascik reported the following:
[Jones] is of the opinion that she just can't work and wanted to know what she could do about her back pain. Other than to stay active and exercise, I have nothing further to offer. I told her she should also follow the recommendation of Dr. Siegel and yourself to participate in a formal therapy program and to be taught a home program. However, to be certain there is nothing going on that the CT does not show, I am going to get an MRI and an EMG and nerve conduction velocity.
The MRI was normal except for some minor scar tissue from
Jones's previous surgery. Dr. Vascik did not see a ruptured
disc or any pressure on the nerve roots. The EMG study was
normal, showing no evidence of any permanent nerve damage.
- 4 - In a January 14, 1997 evaluation, Dr. Boatwright noted that
"[t]his patient has been seen by multiple specialists and has
had some physiotherapy. All of this is without relief. I have
difficulty correlating the degree of her pain and disability
with the physical findings . . . . I would suggest that an
unbiased orthopedic specialist fully evaluate this patient."
In addition to these medical records, Dr. Philip B.
Robertson reported his findings based upon a January 10, 1997
independent psychiatric evaluation. Dr. Robertson diagnosed
Jones as suffering from adjustment disorder with mixed anxiety
and depressed mood and pain disorder associated with both
psychological factors and a general medical condition. Dr.
Robertson opined that Jones's "present psychiatric impairments
are a contributing factor to her disability but by themselves
would not preclude her functioning in some occupational
capacity."
Dr. Kenneth W. Gray, an orthopedist, reviewed Jones's
medical records, examined her upon VRS's request, and reported
as follows:
It is my impression that this patient is probably permanently disabled from doing any type of productive work activity based on her history and her inability to work for well over a year. This on clinical examination, however, we see no objective findings which would indicate a reason why this patient was not able to perform normal work activities and/or activities of daily living. . . . This appears to be primarily myofascial. . . . [T]his far down the line,
- 5 - the patient probably would need more extensive pain clinic type setting and more extensive rehabilitation to get her back to work activities. . . .
. . . [W]e see no objective findings which would prevent her from strengthening her back and return back to a normal activities of daily living and normal work activities . . . . Specifically, this appears to be a fairly minimal injury. The type of work activity that she has described appears to be reasonably light.
After the informal fact finding conference, the hearing
officer issued a written opinion rejecting Dr. Boatwright's
opinion and relying upon the medical records and findings of
Drs. McCrary, Vascik, Robertson, and Gray. Finding that Jones
was not permanently disabled, the hearing officer noted that
"[o]bjective studies and diagnosis by [the] other doctors do not
support Dr. Boatwright's finding of permanent disability."
On June 9, 1997, VRS issued its final case decision denying
Jones's application. Jones appealed that decision to the trial
court. On September 30, 1999, the trial court held that
substantial evidence in the record supported VRS's denial of
benefits and affirmed VRS's decision. Jones appealed that
judgment to this Court.
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 to certify that a claimant's disability "is
- 6 - likely to be permanent." Code § 51.1-156(E)(ii). Our review of
this determination concerns whether substantial evidence in the
agency record supports 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).
Applying the applicable standards of review to the record
made before the VRS, we hold that VRS, as fact finder, was
entitled to reject Dr. Boatwright's opinion and to give more
probative weight to the medical records and opinions of Drs.
McCrary, Gray, Vascik and Robertson. "The appellate court does
not retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). The VRS's resolution of conflicting medical
opinions is a factual determination. See Johnson v. Virginia
Retirement System, 30 Va. App. 104, 111, 515 S.E.2d 784, 788
(1999) ("observ[ing] that '[t]he deference that we give to the
[agency's] fact finding on medical questions is based upon the
"unwisdom of an attempt by . . . [courts] uninitiated into the
mysteries [of the medical science debate] to choose between
conflicting expert medical opinions."'"). None of Jones's doctors
found any objective basis or explanation for the severity of her
- 7 - subjective symptoms. Guided by the "substantial evidence"
standard of review, we hold that the medical reports and opinions
of Drs. McCrary, Gray, Vascik, and Robertson, when considered with
the entire record, are sufficient to support VRS's decision.
Thus, the trial court did not err in affirming VRS's denial of
permanent disability retirement benefits to Jones.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
- 8 -