                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia


PHYLLIS M. BAUMANN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1194-99-4                   JUDGE ROBERT P. FRANK
                                               AUGUST 29, 2000
VIRGINIA RETIREMENT SYSTEM


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Henry E. Hudson, Judge

          Julian Karpoff (Karpoff & Title, on briefs),
          for appellant.

          Brian J. Goodman, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Phyllis M. Baumann (appellant) appeals the circuit court's

ruling that she was not entitled to disability retirement from the

Virginia Retirement System (Agency).    On appeal, she contends the

circuit court erred in:   1) denying her leave to depose certain

witnesses, 2) denying admission of certain exhibits, 3)

"re-casting" the Agency's Medical Review Board findings, 4)

finding substantial evidence supporting the Agency's findings, and

5) failing to find the Agency's decision had been impermissibly

influenced by bias and arbitrariness.   We disagree and affirm the

judgment of the trial court.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           I.   BACKGROUND

      Appellant was employed as an art teacher by the public

schools of Fairfax County from 1989 to 1996 and taught

kindergarten through sixth grade.    She alleges that severe

reactions caused by art supplies and other materials present in

the school and her home environment incapacitated her from

performance of her job duties.    As a result, she applied to the

Agency for disability retirement upon the basis of Multiple

Chemical Sensitivities Syndrome (MCS) and related conditions.

Upon filing of the application, appellant's medical records were

reviewed by the Medical Review Board 1 and subsequently she was

examined by an independent medical examiner, Dr. George W. Ward,

Jr.

      In a letter dated October 23, 1996, Dr. Robert O. Williams,

coordinator for the Medical Review Board, opined that "multiple

chemical sensitivities" has been rejected as an established

organic disease by the American Academy of Allergy and


      1
          Code § 51.1-124.23(B) mandates that the Board shall:

                 1. Review all reports of medical
            examinations required by this chapter.
                 2. Investigate all essential health
            and medical statements and certificates
            filed in connection with disability
            retirement.
                 3. Submit to the Board a written
            report of its conclusions and
            recommendations on all matters referred to
            it.


                                 - 2 -
Immunology and other medical organizations.      He wrote, "However,

since the applicant is obviously deeply invested in this

concept, it may well constitute some active delusion."      Dr.

Williams then referred appellant for an independent psychiatric

consultation.   The consultation revealed no evidence of a

disabling psychiatric illness.    Based on the consultation and

the medical records before it, the Medical Review Board found no

evidence of a disabling condition.       The Agency, in its letter to

appellant, dated February 5, 1997, found no evidence of a

disabling condition.

     In July 1997, Dr. Ward, the independent medical examiner,

evaluated appellant.    He concluded appellant could not function

as an art teacher in the classroom.      He wrote, "It would appear

unlikely and dubious that this patient with longstanding chronic

medical problems, will be able to perform effectively and

reliably as a teacher."   Dr. Ward noted symptoms consistent with

bilateral conjunctivitis and bilateral rhinitis.      Additionally,

Dr. Ward noted obesity, chronic fatigue, and elevated blood

pressure.   Dr. Ward did not name the disabling disease and did

not mention MCS as a diagnosis.

     The Medical Review Board rejected Dr. Ward's finding of

disability, and, in its August 15, 1997 letter, found the

evidence was limited to obesity, rhinitis and conjunctivitis.

The Board found none of these problems constituted evidence of

permanent disability.

                                 - 3 -
     In accordance with the provisions of the Administrative

Process Act, the Agency designated a hearing officer to conduct

a hearing and submit a recommendation.      See Code § 9-6.14:12.

The evidence submitted by appellant included medical reports by

Drs. Grace Ziem, James N. Baraniuk, Rosemary K. Sokas, Sheldon

Kress, Laura S. Welch, Frank R. Crantz, and Kimball J. Beck, and

the testimony of Dr. Ziem. 2    Also, the record included a report

of the independent medical examiner, Dr. Ward.     The Agency

adduced no evidence other than the referenced independent

medical examination.

     The independent fact finder, David D. Elsberg, reviewed the

report of Dr. Grace Ziem.      Dr. Ziem diagnosed appellant as

suffering from MCS and chronic fatigue syndrome and a number of

other illnesses.   Dr. Ziem stated that appellant has improved

"somewhat" since leaving her job.     Dr. Ziem, as of her report,

had not completed all of the testing and therapy.     Dr. Ziem

opined that appellant suffers from at least three severe

diseases, MCS, chronic fatigue syndrome, and fibromyalgia, any

one of which could be disabling.     Elsberg was not persuaded by

Dr. Ziem's testimony that appellant was incapacitated, finding


     2
       These reports and Dr. Ziem's testimony are not included in
the record before this Court. While appellant recites
permanency findings of Drs. Beck, Welch and Baraniuk in her
brief, we will not consider those findings. Appellant must
provide an adequate record enabling this Court to determine
whether the trial court erred. See Smith v. Commonwealth, 16
Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).


                                  - 4 -
that Dr. Ziem saw appellant infrequently and was unsure of

appellant's medications.   Further, Elsberg referred to the

Medical Review Board's position that MCS is not a disabling

disease.    He recommended against disability benefits for

appellant.

     Upon receiving additional information, the Medical Review

Board, in its June 3, 1998 letter, concluded, "[T]he Board and

its examiners have failed to find evidence of disease that would

be definable under Virginia Code Section 51.1-156(E) as

constituting grounds for permanent disability."

     In its "final case decision," dated October 29, 1998, the

Agency denied disability retirement benefits, finding that

"[t]he medical evidence has not proven that your incapacity is

likely to be permanent."   The Agency further found "no basis to

disagree with the independent fact finder."   The Agency found

that appellant failed to meet her burden of proof.

     She appealed the Agency's decision to the circuit court,

and moved for leave, pursuant to Rule 2A:15, to depose certain

witnesses, which motion was denied by an order entered February

26, 1999.    On April 30, 1999, at the hearing on the petition,

appellant proffered certain exhibits, which were rejected, and

the court denied the petition by its order of the same date.

Appellant's proffered exhibits were:    1) the Agency's

interrogatory answer in a companion case involving MCS, 2) a

journal article that addressed MCS, 3) an Agency representation

                                - 5 -
report in a case where the Agency awarded disability retirement

for MCS.   The Circuit Court for Fairfax County affirmed the

denial of benefits, and this appeal followed.

                           II.   ANALYSIS

     Appellant's assignments of error 1, 2, 3 and 5 involve

identical issues.   In four different arguments, appellant

contends the Agency expressed a "policy" that MCS is not a

recognized disease and the Agency acted in a biased and

arbitrary manner.   A determination of whether there was such

bias and arbitrariness will resolve these four assignments.

     Appellant first contends the circuit court erred in not

granting her leave to depose the Agency's Medical Review Board

Chief, Robert O. Williams, M.D., and Susan Weiss, who was

granted retirement disability based on MCS.     Appellant claims

Dr. Williams and the Agency were biased and arbitrary and that

deposing them would confirm her position. 3

     Part Two A of the Rules of the Virginia Supreme Court

governs appeals from a case decision of an agency pursuant to

the Virginia Administrative Process Act.      Rule 2A:5 provides as

follows:

           Further proceedings shall be held as in a
           suit in equity and the rules contained in
           Part Two, where not in conflict with the

     3
       Appellant claims that since the two reports of Dr. Ward
were in conflict, he must have been prejudiced by "command
influence." However, the record includes only one of Dr. Ward's
reports so we cannot compare the two for conflict, and we,
therefore, will not consider this issue on appeal.

                                 - 6 -
           Code of Virginia or this part, shall apply,
           but no matter shall be referred to a
           commissioner in chancery. The provisions of
           Part Four shall not apply and, unless
           ordered by the court, depositions shall not
           be taken.

     Rule 2A:5 clearly excludes discovery for administrative

appeals.   Depositions may only be taken with leave of court.

Therefore, the standard of review is whether the trial court

abused its discretion in denying appellant's motion to take the

depositions of Dr. Williams and Ms. Weiss.

     The Administrative Process Act confers jurisdiction upon

the circuit court to review agency case decisions.   See Code

§ 9-6.14:16.

     Upon judicial review of agency action in accordance with

the Administrative Process Act, the court must examine the

entire record to "[ascertain] whether there was substantial

evidence . . . upon which the agency as the trier of the facts

could reasonably find them to be as it did."   Code § 9-6.14:17.

"Cases subject to the standard of review outlined in Code

§ 9-6.14:17 cannot be considered a trial de novo since the

factual issues on appeal are controlled solely by the agency

record."   School Bd. of County of York v. Nicely, 12 Va. App.

1051, 1062, 408 S.E.2d 545, 551 (1991).

     The Supreme Court of Virginia in State Bd. of Health v.

Godfrey, 223 Va. 423, 290 S.E.2d 875 (1982), recognized that it

is within the trial court's discretion to take evidence to


                               - 7 -
resolve claims of arbitrary action or bad faith, "but such

evidence should be limited to that purporting to show that the

agency denied the applicant a fair and impartial review of his

application in accordance with proper procedures."    Id. at

433-34, 290 S.E.2d at 880 (citations omitted).   "Where the

proffered evidence tends to show that the fact-finding procedure

was tainted by unfair prejudice or animosity, the agency may be

said to have decided the case on factors irrelevant to the

issues of fact before it."    Id. at 434, 290 S.E.2d at 881

(citation omitted).

     In this case, there was no proffer of what Dr. Williams or

Ms. Weiss would have testified to in the requested depositions.

Where a party alleges error based on the exclusion of evidence,

he or she must make a proffer of proof for the court to

determine if he or she has been prejudiced.    See City of

Richmond Police Dep't v. Bass, 26 Va. App. 121, 130, 493 S.E.2d

661, 665 (1997).   Because there was not a proper proffer, we are

unable to consider this issue.

     Appellant bases her argument of arbitrariness and bad faith

on several grounds.    Primarily, she contends the Agency found

that MCS is not a disabling disease for her but found that it

was for Susan Weiss.   Appellant misstates the Agency's position.

     Although the Medical Review Board did find that MCS has

been rejected as an established organic disease, the Board and

the Agency ultimately found that appellant's diagnosis was not

                                 - 8 -
consistent with permanent disability.    In its final case

decision, the Agency found that the medical evidence did not

prove that appellant's incapacity is likely to be permanent, as

required by Code § 51.1-156(E).   At no time did the agency

express a "policy" that MCS was not a recognized disease.

Appellant's application for disability was denied, not because

of MCS, but because there was no evidence of permanency.

     Ms. Weiss' claim was granted because the Agency found

permanency in her disability.   In the Weiss case, Dr. Grace Ziem

made a finding of permanency.   In appellant's case, Dr. Ziem did

not make such a finding.   The findings in each case explain the

different results.

     This Court agrees with appellant that agency bias and

arbitrariness are serious allegations.   Yet, appellant proffered

no evidence to substantiate her bare allegations.   Indeed,

nothing before this Court indicates arbitrariness or bad faith.

We, therefore, find the trial court did not abuse its discretion

in refusing to allow Dr. Williams and Ms. Weiss to be deposed.

     Appellant also contends that her proffered exhibits are

necessary to prove that the Agency acted arbitrarily and in bad

faith.   Appellant makes the same argument as she did for the

depositions.   For the reasons stated above, we find that the

trial court did not abuse its discretion in not admitting the

proffered exhibits.



                                - 9 -
     Likewise, appellant maintains the trial court erred in

failing to find that the Agency's decision had been

impermissibly "infected" by bias and arbitrariness.     We have

addressed this issue above and find that there was no bias or

arbitrariness in the Agency decision.

     Appellant further asserts the circuit court erred in

"re-casting" the Medical Review Board's report.     Appellant

argues that while the Medical Review Board's recommendation to

deny the application because MCS is not a recognized disabling

disease, the trial court ignored the "policy" finding and

reviewed the decision simply to determine whether there was

substantial evidence to support the Agency's ruling.     As we

stated above, there was no statement of "policy" by either the

Board or the Agency.    Indeed, the Agency denied appellant's

application benefits because it found no permanency.

     We find that the circuit court did not "re-cast" the

Board's report and applied the correct standard of review, as we

discuss below.

     Appellant finally contends the trial court erred in finding

substantial evidence to support the Agency decision.     Appellant

does not claim any errors of law.    The standard of review

applicable to this appeal is governed by the Administrative

Process Act.     See Code § 9-6.14:17.   Applying the Act, we have

ruled as follows:



                                - 10 -
               In reviewing an agency decision, "[t]he
          scope of court review of a litigated issue
          under the APA is limited to determination
          [of] whether there was substantial evidence
          in the agency record to support the
          decision." The substantial evidence
          standard is "designed to give great
          stability and finality to the fact-findings
          of an administrative agency." A trial court
          may reject the findings of fact "only if,
          considering the record as a whole, a
          reasonable mind would necessarily come to a
          different conclusion." The burden of proof
          rests upon the party challenging the agency
          determination to show that there was not
          substantial evidence in the record to
          support it.

Smith v. Deparment of Mines, Minerals & Energy, 28 Va. App. 677,

684-85, 508 S.E.2d 342, 346 (1998) (citations omitted).   We have

held that this standard of review requires courts to give great

deference to the agency's factual findings.

               The determination of an issue of fact
          is to be made solely on the basis of the
          whole evidentiary record provided by the
          agency and the reviewing court is limited to
          that agency record. "A reviewing court may
          not, however, use its review of an agency's
          procedures as a pretext for substituting its
          judgment for the agency on factual issues
          decided by the agency." A reviewing court
          "must review the facts in the light most
          favorable to sustaining the [agency's]
          action," and "take due account of the
          presumption of official regularity, the
          experience and specialized competence of the
          agency, and the purposes of the basic law
          under which the agency has acted."

Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 263, 369 S.E.2d

1, 18-19 (1988) (citations omitted).




                             - 11 -
     We have also ruled that a "'question raised by conflicting

medical opinion is a question of fact.'"     WLR Foods, Inc. v.

Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)

(citation omitted).   We have also observed that "the 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 to choose between conflicting

expert medical opinions.'"   Stancill v. Ford Motor Co., 15 Va.

App. 54, 58, 421 S.E.2d 872, 874 (1992) (citation omitted).

     The Medical Review Board is "a neutral evaluatory mechanism

for the Retirement System to gather and analyze medical opinions

and reports."   Johnson v. Virginia Retirement Sys., 30 Va. App.

104, 112, 515 S.E.2d 784, 788 (1999).

     In this case, the Board reviewed all of the medical reports

and concluded there was no evidence of permanent disability.

Dr. Ziem, the greatest proponent of MCS, failed to diagnose

appellant as having a permanent disability.    Dr. Ziem has not

completed all of the testing and therapy.    She is still

fine-tuning appellant's treatment.     Dr. Ziem opined appellant

was improving "somewhat" since leaving her job.    Dr. Ziem only

treats appellant on an "as needed" basis.    The hearing officer

found that Dr. Ziem's treatment on an "as needed" basis, was

inconsistent with a chronic disabling disease.    Therefore, the

fact finder could conclude that it was premature to find

permanency.

                              - 12 -
     The hearing officer also was not persuaded by the

independent medical examiner, Dr. Ward.   Dr. Ward never named a

disabling disease and did not give an adequate medical reason

for his conclusion that appellant cannot "reliably function as

an art teacher."   The hearing officer accepted the Medical

Review Board's position that MCS is not a disabling disease.

     According to Dr. Ward's report, none of appellant's

experts, Dr. Ziem, Dr. Welch, Dr. Beck, or Dr. Baraniuk, opined

that appellant's disease is likely to be permanent as required

by Code § 51.1-156(E).

     We, therefore, find that there was substantial evidence in

the record to support the Agency's decision and affirm the

denial of disability retirement benefits.

                                                           Affirmed.




                              - 13 -
