                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


WILLIAM H. LEIGHTY, DIRECTOR AND
 VIRGINIA RETIREMENT SYSTEM
                                          MEMORANDUM OPINION * BY
v.   Record No. 2072-97-3             JUDGE RUDOLPH BUMGARDNER, III
                                              APRIL 28, 1998
JANE S. MUNSEY


                 FROM THE CIRCUIT COURT OF WISE COUNTY
                         J. Robert Stump, Judge
           (Richard Cullen, Attorney General; John Paul
           Woodley, Jr., Deputy Attorney General;
           Michael K. Jackson, Senior Assistant Attorney
           General; Cameron P. Quinn, Assistant Attorney
           General; James W. Osborne, Assistant Attorney
           General, on briefs), for appellants.
           Appellants submitting on briefs.

           Robert B. Hines, II (Montgomery Law Offices,
           on brief), for appellee.



     Jane S. Munsey applied for Virginia Retirement System

disability benefits.    The Director denied these benefits, and she

appealed that decree to the Circuit Court of Wise County.    The

circuit court found that no substantial evidence existed to

support the finding of nondisability.    Specifically it found that

the opinion of no-disability of Dr. Eric Moffett was not

substantial evidence when compared to the opinions of Drs. E.R.

Kidwell and Donald Bales who had treated Ms. Munsey for long

periods.   The circuit court reversed the agency determination.

Finding that the trial court applied the wrong standard of review
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
when it weighed the conflicting evidence, we reverse the trial

court's decision.

     Jane S. Munsey is 61 years old and has taught fifth grade in

the Wise County school system for approximately fourteen years.

She applied for retirement disability benefits stating that she

suffered from panic anxiety disorder.   Her family physician, Dr.

Bales, treated her for anxiety and opined that she was probably

permanently disabled.   Upon referral, Dr. Kidwell, a

psychiatrist, treated her for anxiety and depression through

April 1995.   Dr. Kidwell reported that she had received no long

term benefits from her medications taken over the years and that

her prognosis for significant improvement was guarded.
     The Medical Review Board for the Virginia Retirement System

appointed Dr. Moffett to conduct an independent examination.     He

concluded that Ms. Munsey was not disabled.   Ms. Munsey later

made an appointment to see Dr. Russell D. McKnight, a

psychiatrist.   He reported that she was moderately depressed and

disabled and was not likely to return to competitive employment.

The Medical Review Board recommended denial of benefits.   Munsey

appealed that decision.

     The administrative hearing examiner conducted an evidentiary

hearing July 9, 1996.   He concluded that Ms. Munsey had not

proved she was disabled from further performance of her duties.

The Virginia Retirement System accepted this recommendation and

issued a final decision denying an award of disability retirement

benefits.

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     The review of an agency decision on appeal to a circuit

court is limited to determining whether there is substantial

evidence in the agency record to support its decision.

Substantial evidence is a term of art defined as evidence that

might lead a reasonable person to come to the conclusion the

agency reached.    See Virginia Real Estate Comm'n v. Bias, 226 Va.

264, 269, 308 S.E.2d 123, 125 (1983).

     The trial court weighed and evaluated the evidence, compared

the opinions of the different experts, and then concluded that

the evidence of the appellee was stronger.    In doing so, it

slipped into the role of fact finder rather than a review

tribunal.   It thereby substituted its judgment on the factual

issues for those of the agency and exceeded its defined role.

The court may reject the agency's findings of fact only if,

considering the record as a whole, a reasonable mind would

necessarily come to a different conclusion.     See id.   The record

does not reveal a sound or valid reason why the agency was not

entitled to accept Dr. Moffett's opinion.

     In this case credible evidence existed that might lead a

reasonable person to come to the same conclusion that the agency

reached.    Accordingly, we reverse the trial court's decision and

remand with the direction that the agency decision denying

disability retirement benefits be reinstated.

                                          Reversed and remanded.




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