                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


SHERRI A. ARTRIP
                                           MEMORANDUM OPINION *
v.   Record No. 2711-98-3                      PER CURIAM
                                              JUNE 22, 1999
VIRGINIA RETIREMENT SYSTEM


              FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                  Donald A. McGlothlin, Jr., Judge

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

           (Mark L. Earley, Attorney General; James W.
           Osborne, Assistant Attorney General, on
           brief), for appellee.


     Sherri A. Artrip (Artrip) appeals an order of the trial court

which affirmed a decision by the Virginia Retirement System (VRS)

denying her claim for permanent disability retirement.   Artrip

contends that (1) the trial court erred in finding that there was

substantial evidence to support VRS's denial of benefits on the

ground that she failed to prove that her 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 whether such person is


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
permanently impaired.    Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the trial court’s decision.         See

Rule 5A:27.

                                   I.

        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).

        Artrip, who was born on May 13, 1961, worked for the

Department of Motor Vehicles (DMV) from 1988 through September 21,

1995.    She has not worked since that date.     Artrip's job as an

administrative assistant to the District Manager required that she

handle miscellaneous administrative duties for the DMV.

        On September 26, 1995, Artrip applied for retirement benefits

from VRS.    She cited chronic fatigue syndrome ("CFS"),

Epstein-Barr virus infection, and fibromyalgia as her disabling

conditions.    Her treating physician, Dr. Dwight L. Bailey, and a

rheumatologist, Dr. Christopher R. Morris, opined that Artrip

suffered from CFS or fibromyalgia.       Dr. Bailey noted Artrip's

positive Epstein-Barr test.    In his October 3, 1995 physician's

report, Dr. Bailey stated that Artrip was totally disabled, but

that "disability is undeterminable at this time."      Dr. Morris did

not comment on the extent of Artrip's disability.


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     In response to Artrip's application, the Medical Review Board

("the Board") reviewed the medical evidence and held in its

February 14, 1996 letter opinion that "'[t]he information

submitted does not meet the criteria for a chronic or disabling

condition and [Artrip] is not felt to be permanently disabled.'"

     On March 2, 1996, Dr. Bailey opined in a letter to VRS that

Artrip suffered from CFS and fibrositis.   Dr. Bailey stated that

"it appears that [Artrip] is going to be permanently disabled from

this illness.   She has been on multiple medical regimens requiring

physical therapy and multiple steroid injections with little

improvement."   On March 20, 1996, Artrip appealed the Board's

February 14, 1996 denial of benefits.

     On May 13, 1996, pursuant to VRS's request, Dr. Eric Moffett,

a psychiatrist, examined Artrip.   Moffett also reviewed the

medical records of Drs. Bailey and Morris.   Dr. Moffett opined

that Artrip's "current level of psychiatric disturbance is not

significant enough to warrant her remaining off work."   Dr.

Moffett declined to comment on the fibromyalgia and/or CFS, as he

is not an expert in those areas.   Dr. Moffett recommended that

Artrip "be encouraged to return to some type of employment to aid

with issues of self-esteem and improve her overall psychiatric

functioning."

     On June 6, 1996, the Board again denied Artrip's claim for

benefits finding that she had failed to prove that her conditions


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resulted in permanent disability.   Again, Artrip appealed VRS's

decision.   On September 25, 1996, Artrip submitted additional

evidence from Dr. Bailey.   However, that medical evidence did not

shed any light on the precise issue of the extent of Artrip's

disability.

     On October 14, 1996, R. Louis Harrison, Jr., Esquire, hearing

officer for VRS, conducted a fact finding hearing.    At that

hearing, Artrip described her CFS and fibromyalgia symptoms.

     In a December 28, 1996 psychological evaluation performed by

Sharon J. Hughson, Ph.D., a licensed clinical psychologist for the

Social Security Administration, Hughson recommended a referral of

Artrip to an inpatient Chronic Pain Management Program, but she

did not specifically comment on the extent of Artrip's disability.

     On March 14, 1997, Dr. Daniel M. Camden examined Artrip at

the request of VRS.   Dr. Camden opined that Artrip was currently

disabled, but that her disorders were treatable and she was not

permanently disabled.   Dr. Camden opined that with appropriate

medical and psychiatric treatment, an exercise program, and a

reduction in the multiple medications consumed by Artrip, that she

had the capacity to return to a reasonably functional state.

     On April 2, 1997, the Social Security Administration awarded

benefits to Artrip for a period of disability beginning on August

17, 1995 through at least the date of the decision.




                               - 4 -
     Harrison issued his written decision on June 2, 1997.

Harrison reviewed the record in detail and determined "that

[Artrip] was not likely to be permanently disabled," a finding

that VRS adopted in its "final case decision" on June 20, 1997.

In affirming VRS's action on appeal, the trial court ruled that

"substantial evidence" supported the ruling.

     "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

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).

     Applying these standards to the record made before the VRS,

it is clear that although the physicians who treated or examined

Artrip agreed that she suffers from some type of condition, they

disagreed concerning the extent of her disability.     Significantly,

Dr. Moffett opined that Artrip was not permanently disabled from a

psychiatric standpoint, and Dr. Camden opined that Artrip's


                                  - 5 -
conditions were treatable and not permanently disabling.   VRS

chose to believe the opinions of Drs. Moffett and Camden and to

lend less weight to Dr. Bailey's opinions, as it was entitled to

do.   See Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407

S.E.2d 32, 35 (1991) ("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.").   The

remaining physicians did not directly comment upon the extent of

Artrip's disability.   Guided by the "substantial evidence"

standard of review, we find that the opinions of Drs. Moffett and

Camden, when considered with the entire record, are adequate to

support VRS’s decision.   Thus, the trial court did not err in

affirming VRS's denial of permanent disability retirement benefits

to Artrip.

                                II.

      Artrip raises this issue for the first time on appeal.

Contrary to her contention on appeal, nothing in the record

indicates that at any time before the Board, VRS, or the trial

court did she argue that Code § 51.1-156 is vague and

unconstitutionally delegates authority to the Board and private

physicians, as she does now before this Court.    Accordingly,

Rule 5A:18 bars our consideration of this issue.    See also

Overhead Door Co. of Norfolk v. Lewis, 29 Va. App. 52, 61-62,

509 S.E.2d 535, 539-40 (1999) (claimant who failed to raise due


                               - 6 -
process argument before workers' compensation commission barred

from raising it for first time on appeal); Parnell v.

Commonwealth, 15 Va. App. 342, 349, 423 S.E.2d 834, 838 (1992)

(defendant who failed to challenge constitutionality of statute

in trial court barred from raising that issue on appeal).

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

     Artrip's reliance upon the Supreme Court's holding in

Almond v. Day, 197 Va. 419, 89 S.E.2d 851 (1955), in support of

her argument that this Court should consider her constitutional

argument for the first time on appeal, is misplaced.    In Almond,

the Attorney General petitioned for a writ of mandamus pursuant

to Code § 8-714 against the State Comptroller "to determine the

validity of [a statute] which appropriat[ed] funds for the

'education of orphans of soldiers, sailors and marines' who were

citizens of Virginia and were 'killed in action or died, or who

were totally and permanently disabled as a result of service

during the World War.'"   Id. at 420, 89 S.E.2d at 852.    Code

§ 8-714 (now § 8.01-653) requires consideration of

constitutional questions on a writ of mandamus, thereby

distinguishing Almond from this case.

     For the reasons stated, we affirm the trial court's

decision.

                                                           Affirmed.


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