                     COURT OF APPEALS OF VIRGINIA

Present:    Judges Bray, Annunziata and Overton


RUTH A. FIFER
                                                  MEMORANDUM OPINION *
v.   Record No. 2924-97-3                              PER CURIAM
                                                    AUGUST 25, 1998
VIRGINIA RETIREMENT SYSTEMS


              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                      John J. McGrath, Jr., Judge

             (Grant A. Richardson, on brief), for
             appellant.
             (Mark L. Earley, Attorney General; Michael K.
             Jackson, Senior Assistant Attorney General &
             Chief; Brian J. Goodman, Assistant Attorney
             General, on brief), for appellee.



         Ruth A. Fifer, appellant, was denied disability retirement

from the Virginia Retirement System (VRS) pursuant to Code

§ 51.1-156(E).    On appeal, appellant contends that there was

insufficient evidence in the record to support the VRS's decision

that her disability was not likely to be permanent.       Because we

find that there is substantial evidence to support the VRS's

finding, we summarily affirm.     See Rule 5A:27.

                              Background

     Appellant was employed as a school teacher for about thirty

years when she obtained an unpaid leave of absence to care for

her elderly parents.    During the leave of absence, appellant had

one or more operations for various sinus conditions.       On April

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
20, 1996, in her first application for disability, appellant

asserted that she suffered from fibromyalgia and leukoaraiosis.

She stated that she was unable to perform her teaching duties

because she was in bed eighteen hours per day, she suffered

dizziness, nausea, constant body aches, chronic fatigue,

unpredictable vision, uncontrollable seizure-like chills,

fluctuating fever, thumping headaches, watery diarrhea, and

dry-mouth.    She also said that she was unable to concentrate.

Reports from her treating neurologist, Glen E. Deputy, M.D.,

confirmed most of these complaints.
        On June 6, 1996, the VRS denied appellant disability based

on the Medical Board's finding that "[n]o evidence of disabling

disease is presented."    The Medical Board also found that

appellant was not "felt to be permanently disabled."    Appellant

appealed this decision, and the Medical Board requested that

Morris E. McCrary, III, a neurologist, examine appellant.

        Dr. McCrary examined appellant on or about September 17,

1996.    He noted that she reported a large number of complaints,

but that she had "a relatively normal objective neurologic

examination." He further stated:
          I am hard pressed to say that I have physical
          findings, consistent history or studies that
          would denote a degree of function or specific
          limitation that would permanently prevent her
          from performing her duties as a teacher as
          described in her disability information
          questionnaire. As to the question of chronic
          fatigue syndrome and fibromyalgia, I find
          little to support this, but I would defer to
          evaluation by a qualified rheumatologist if
          indicated.



                                  -2-
     The VRS again denied appellant's request for disability

benefits based on the Medical Board's recommendation, and

appellant appealed.    On April 2, 1997, an informal fact-finding

hearing was held.   The hearing examiner examined medical records

and heard oral testimony from appellant and another witness who

had observed appellant's behavior over the past eight years.

     Appellant presented evidence of treatment notes and

diagnoses performed by Dr. Deputy.     Dr. Deputy opined that

appellant suffered from fibromyalgia, carpal tunnel syndrome,

chronic fatigue syndrome, and neuropathy.    However, Dr. Deputy

did not state whether, in his opinion, her illnesses were

permanent in nature.   Over the course of his treatment of

appellant, Dr. Deputy prescribed numerous medications for

appellant, many of which appellant claimed caused side effects.

He noted after her April 18, 1996 visit, that he was "hopeful we

can get her feeling better over the next few months."    His notes

from February 20, 1997 indicated that her "[r]ight peroneal

neuropathy, [had] improved from a previous study obtained last

April."   He also stated in this report that "[h]er conditions are

improving" and that she was "improving symptomatically" with the

use of a certain prescription, with which he continued to treat

appellant.
     On December 6, 1996, Carolyn M. Brunner, M.D., a

rheumatology specialist, examined appellant.    Dr. Brunner did not

comment on the permanency of appellant's condition, but noted



                                 -3-
that she found "no gross motor or sensory deficits."    She also

recommended a continuation of appellant's "supportive care" and

suggested that appellant begin an exercise program.

     Appellant also presented evidence of her treatment by John

T. Glick, M.D., who administered acupuncture treatments on

appellant.     In a letter to appellant's counsel, Dr. Glick wrote:
             As my approach to [appellant's] complaints
             was based on the acupuncture model of health
             and illness, the information you request is
             not likely to be of use to you. Be that as
             it may, I certainly can speak to the high
             degree of disability that she experiences and
             the weakness along with diminished vitality
             she evidences. She is, by my experience with
             her, unable to do more than sedentary
             activity and ambulates very slowly with a
             cane. Unless breakthroughs in the treatment
             of fibromyalgia and chronic fatigue occur, I
             feel she is permanently disabled.

     Appellant also presented evidence from her family doctor,

D.L. Perry, M.D.    On March 28, 1997, Dr. Perry wrote, "It is my

opinion that [appellant] is fully disabled at this time and most

likely will continue well into the future unless technology

advances to the point where these conditions can be treated

successfully."

     Pamela Collins, a home health care nurse, testified at the

hearing.   Collins had never treated appellant, but had been to

her home approximately every other week for eight years, treating

appellant's bedridden father.    Collins opined that appellant was

totally disabled, but did not comment on the permanency of her

condition.




                                  -4-
     The hearing officer found that, while the medical evidence

was "not overwhelming," it evidenced problems that appellant was

experiencing.   He found that "[t]he problem is that her

physicians can't find the correct combination of treatment in

which to help her."   The hearing officer also found that, while

the evidence showed that appellant was unable at that time to

return to her position, "it is not clear that her condition is

one of permanency."   Thus, the hearing officer found that

appellant failed to carry her burden of proof to show that her

incapacity is "likely to be permanent."   See Code

§ 51.1-156(E)(ii).

     On June 11, 1997, the VRS again denied appellant disability

benefits.   Appellant appealed this decision to the circuit court.

The trial court stated:
              In reviewing the agency record in this
         case, it is clear that there are two somewhat
         opposed views on the question of the
         permanency of [appellant]'s disability. Her
         treating neurologist, Dr. Deputy, and the
         specialist[s] to whom she's been referred,
         Dr. McCrary and Dr. Brunner, have never
         opined that her disability is permanent in
         nature. In fact, the totality of their
         medical records appears to basically analyze
         the multitudinous complaints of [appellant]
         and conclude that they do not appear to be
         based on any objective findings and have
         proven to be resistant to any drug regimens
         that have been prescribed to her. . . . The
         conclusion of these doctors appears to be as
         stated in the record, that since they cannot
         really determine the exact identity of the
         medical illnesses of which [appellant] is
         suffering, they do not have the requisite
         knowledge upon which to base a conclusion
         that the disability is permanent.
              The evidence on the opposite side


                                -5-
          consists of Dr. Glick, the family
          practitioner and acupuncturist, who
          administered a regimen of acupuncture
          treatment to [appellant] and based on his
          observations of [appellant] during that
          period of time concluded that she was in all
          likelihood permanently disabled. Dr. Perry,
          the general practitioner, who was her
          personal physician, also rendered a short
          opinion to the effect that he thought her
          disability was permanent.
               Therefore, the record is clearly one
          where there i[s] considerable evidence on
          both sides of the issue of whether or not the
          disabilities currently being suffered by
          [appellant] are permanent in nature. The
          Medical Review Board of the VRS has reviewed
          the record on three separate occasions and
          each time has concluded that there is no
          medically sufficient evidence to prove
          disability. The VRS has, in turn, adopted
          the position of the Medical Review Board and
          denied the disability benefits.

     The trial court concluded that there was substantial

evidence in the record upon which the VRS could base a denial of

appellant's claim.   Therefore, the trial court denied appellant's

appeal.

                               Analysis
     "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.   The VRS is required to

use a Medical 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




                                  -6-
'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).

      Dr. Glick was the only physician who opined that appellant

was permanently disabled.    However, he qualified his opinion,

stating that it was based on "the acupuncture model of health and

illness."   Dr. Perry opined that appellant was "fully disabled at

this time and most likely will continue well into the future."

However, this opinion falls short of a conclusion that

appellant's incapacity is "likely to be permanent."    Dr. McCrary

was "hard pressed to say that [he] had physical findings,

consistent history or studies that would denote a degree of

function or specific limitation that would permanently prevent

[appellant] from performing her duties as a teacher . . . ."

Also, Drs. Deputy and Brunner did not opine that appellant's

disability was permanent in nature.     In fact, Dr. Deputy's notes

of February 20, 1997 indicated that appellant showed improvement

in certain conditions.
     The VRS chose to believe the opinions of Drs. McCrary and

Deputy and to lend less weight to Dr. Glick's opinion, as it was

entitled to do.     See Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991) ("[T]he appellate court does

not retry the facts, reweigh the preponderance of the evidence,

or make its own determination of the credibility of the




                                  -7-
witnesses.").   The opinions of Drs. McCrary and Deputy are

adequate to support the VRS's decision.

     For the foregoing reasons, the denial of claimant's

application for disability retirement is affirmed.

                                                           Affirmed.




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