                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


BARBARA W. JOHNSON
                                                  OPINION BY
v.   Record No. 1772-98-2                 JUDGE JAMES W. BENTON, JR.
                                                 JUNE 29, 1999
VIRGINIA RETIREMENT SYSTEM


            FROM THE CIRCUIT COURT OF LANCASTER COUNTY
                  Joseph E. Spruill, Jr., Judge

          Sean P. Kavanagh (Jenkins, Block &
          Associates, P.C., on briefs), for appellant.

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


     The Virginia Retirement System denied Barbara W. Johnson's

application for disability benefits.    On this appeal from the

circuit court's review, Johnson contends the trial judge erred in

ruling that the record contains substantial evidence to support

the Retirement System's decision.     See Code § 9-6.14:17.   For the

reasons that follow, we affirm the judgment.

                                 I.

     For nineteen years, Barbara W. Johnson was employed as an

elementary school teacher by the Lancaster County School Board.

She resigned from her position in July 1996 and applied to the

Retirement System for regular disability retirement benefits.     See

Code § 51.1-156.   Johnson's application indicated she suffered
from hypertension and related medical problems that became

aggravated when she was in the classroom.    Attached to her

application was a report from Dr. Norman R. Tingle, Jr., her

physician, which indicated the following:

          [Johnson] remains relatively anxious and
          hypertensive, but is doing pretty well on
          her medications. . . . She plans not to go
          back to work. I recommend that. I think it
          is too stressful. Her blood pressure is
          clearly made worse by the stress at work.
          In that regard, she is applying for early
          disability and I have completed a note today
          suggesting that she go ahead and early
          retire.

     Denying the application, the Retirement System informed

Johnson that the medical board had reviewed the application and

recommended denying it.   See Code § 51.1-124.23.    The medical

board noted, "[t]here is no evidence of end-organ impairment

from her hypertension . . . and generally in such cases, more

focused treatment of the blood pressure gives control."        Johnson

appealed the decision and submitted additional evidence,

including a chart of her blood pressure readings for eighteen

months and a letter from Dr. Tingle.    In his letter, Dr. Tingle

disclosed the medication Johnson was taking and stated, "her

blood pressure is stable now, but she is not working and I

recommended that she not do that."     The medical board requested

that Johnson submit to an independent medical examination by Dr.

Kenneth C. Griffith, a cardiovascular specialist, and sent Dr.




                               - 2 -
Griffith a copy of the records it had received from Johnson and

Dr. Tingle.

     After examining Johnson, Dr. Griffith reported to the

medical board that Johnson has "poorly controlled" blood

pressure and "has been treated with several different agents but

apparently has been treated one at a time and never in

combination."   While noting that the "documentation as to the

medical regimen which [Johnson] has been under is somewhat

limited," Dr. Griffith's report contained references to

Johnson's current medication, "Johnson's own account" of her

medicines, and Dr. Tingle's letter noting the types of

medication he had prescribed.   In concluding his lengthy report,

Dr. Griffith stated the following disposition:

          I am not quite certain why this lady takes
          Codeine twice a day and I am not quite
          certain if she has any reason for suspecting
          that her symptomatology is related to her
          hypertension. She seems to have a lot of
          symptoms that are much more likely to be
          anxiety symptoms than hypertensive. She has
          uncontrolled hypertension but I do not think
          it has been at all demonstrated that she has
          ever been on a regimen of medications which
          might reasonably be suspected to control
          difficult hypertension. It may well be that
          she has a disabling anxiety condition, it
          may be that she potentially has disabling
          hypertension if it were demonstrated that
          the patient's current level of pressure was
          the best that could be attained by
          multi-drug therapy, but as of the present
          moment I do not see that in my professional
          opinion that disabling hypertension has been
          demonstrated.



                                - 3 -
     On December 2, 1996, the Retirement System again denied

Johnson's application.   It informed Johnson that, after

reviewing Dr. Griffith's report, the medical board recommended

denying the application because Johnson had not proved a

"permanently disabling illness."   Johnson then submitted

further, more current medical reports from Dr. Tingle, who noted

Johnson's continuing elevated blood pressure, described the

medication she was receiving, and reported that she had been

examined by Dr. Anthony Giordano because of hearing problems she

was experiencing.   On December 18, 1996, the Retirement System

denied Johnson's further application.   Although Johnson's

"single antihypertensive medication has been increased," the

medical board found, "[t]here is still no evidence with the use

of approved methods of treating blood pressure, including

multiple drugs, that her blood pressure cannot be quite

satisfactorily controlled" and "[t]here is still no evidence of

permanent disability from hypertension."

     Johnson requested a fact finding hearing, see Code

§ 9-6:14.12, and informed the Retirement System that she had "a

new doctor."   Johnson also supplied additional records from Dr.

Tingle, Dr. Giordano, Dr. John Deschamps, an internist, and Dr.

William G. Ryan, an optometrist.   At the hearing, Johnson

testified extensively concerning her difficulties at school and

at home.   The notes from Dr. Tingle reported that on January 21,

1997, he increased Johnson's medication for hypertension and

                               - 4 -
that her blood pressure had decreased when she returned two

weeks later.   Dr. Deschamps reported that on his examination of

March 24, 1997, Johnson said she had experienced blood pressure

problems "for at least seven years," and he noted the various

medicines she had taken.   He diagnosed hypertension and "anxiety

with some stress component," and he "streamline[d]" Johnson's

medications.   When Johnson returned to Dr. Deschamps two weeks

later, he noted that her blood pressure "is much better

controlled."   However, Dr. Deschamps' medical report stated that

Johnson's "feeling is that she can no longer effectively teach

her classes" and that he "do[es] not foresee her being able to

continue her work as a teacher because of the responsibility

that that requires."

     In its review of the doctors' reports, the medical board

noted that "Dr. Deschamps indicate[s] that [Johnson's] pressure

was eventually satisfactorily controlled with the recording

130/80," that Dr. Ryan reports Johnson's "vision is corrected at

20/20 in each eye with lenses," and that Dr. Giordano reports

Johnson needs no further treatment for her hearing problem.    The

medical board concluded that Johnson's "hypertension is now

satisfactorily controlled" and that "[t]here is no evidence of a

permanently disabling condition."

     Based on his review of Johnson's testimony and the medical

evidence, the hearing officer found that Johnson did not fully

satisfy the statutory requirements of Code § 51.1-156.    Noting

                               - 5 -
the report from Dr. Deschamps, which established that under his

medication regimen Johnson's blood pressure is now "better

controlled," the hearing officer found that Johnson had not

established a permanent disabling condition.   The hearing

officer further stated the following:

          While Ms. Johnson may not be ready to resume
          the responsibility of a teacher at this time
          and has shown as much, she has not satisfied
          the requirement of the code that her
          condition is likely to be permanent.
          Hypertension is permanent, but it may be
          controlled.

Upon review of the hearing officer's decision, the Retirement

System informed Johnson that "[t]he medical evidence has not

proved that your incapacity is 'likely to be permanent'" and

denied her application for disability benefits.

     On appeal to the circuit court, Johnson contended that the

"findings of fact . . . are not based upon substantial evidence"

and that she had sufficiently demonstrated permanent physical

incapacity from work.   Finding that the "record contains

conflicting medical testimony from reputable physicians," the

trial judge ruled he "cannot conclude . . . it would be

necessarily unreasonable to accept the opinion of one to the

exclusion of the others."   Basing his decision upon the

"substantial evidence" standard, the trial judge affirmed the

agency's decision.   This appeal followed.




                               - 6 -
                                II.

     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:

          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. Dept. of Mines, Minerals & Energy, 28 Va. App. 677,

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

also Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308

S.E.2d 123, 125 (1983).   Although "[s]ubstantial evidence is

more than a mere scintilla," Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938) (cited in Bias, 226 Va. at 269, 308

S.E.2d at 125), we have held, nonetheless, 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,

                               - 7 -
           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).

     Based on the medical evidence in this record, a "reasonable

mind" certainly could find that the evidence did not prove

Johnson's condition was likely to be permanent.   The record

contains a report from Dr. Griffith noting that Johnson had been

given an insufficient medical regimen for controlling

hypertension.   Indeed, when Johnson began treatments with Dr.

Deschamps, he adjusted her medication and reported "her [blood

pressure] is much better controlled at 130/80."

     By statute, the medical board is empowered to review

reports of medical examinations, to investigate health and

medical statements submitted in connection with disability

applications, and to report its conclusions and recommendations

to VRS.   See Code § 51.1-124.23(B).   The medical board examined

all of the medical reports, see Code § 51.1-156(E), including

the reports of Drs. Tingle, Deschamps, and Griffith, and found

persuasive the opinion of Dr. Griffith.   The hearing officer

received the medical board's recommendations and likewise found

                               - 8 -
unpersuasive medical reports of Johnson's permanent incapacity.

The Retirement System upheld that finding.

     The trial judge noted that "[t]his record contains

conflicting medical testimony from reputable physicians" and

ruled that he "cannot conclude that it would be necessarily

unreasonable to accept the opinion of one to the exclusion of

the others."   In other agency cases, we have ruled that "'[a]

question raised by conflicting medical opinion is a question of

fact.'"   WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d

147, 152 (1997) (citation omitted).     We have also observed 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.'"    Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421

S.E.2d 872, 874 (1992) (citation omitted).    Those principles are

applicable in the context of this case.    Accordingly, we affirm

the trial judge's ruling.

                                III.

     Relying on the "treating physician rule" in federal

disability cases, see e.g., Coffman v. Bowen, 829 F.2d 514, 517

(4th Cir. 1987) and 20 C.F.R. § 404.1527(d)(2), Johnson

additionally argues that the Retirement System should be

required to give greater weight to Dr. Tingle's report.



                                - 9 -
     We find no basis in Code § 9-6.14.17 to require the

Retirement System to adopt such a rule.   By statute, the

Retirement System is required to "employ a Medical Board of four

physicians[,] who [serve four-year terms and] are not eligible

to participate in the Retirement System," to review the medical

reports and make recommendations to the Retirement System.     Code

§ 51.1-124.23.   Thus, the legislature has designated in the

basic law a neutral evaluatory mechanism for the Retirement

System to gather and analyze medical opinions and reports.

     Furthermore, we note that even if such a rule were in

place, the result in this case would be no different.   The

Supreme Court applies the following rule in Workers'

Compensation cases where there is conflicting medical evidence:

          The general rule is that when an attending
          physician is positive in his diagnosis of a
          disease, great weight will be given by the
          courts to his opinion. However, when it
          appears . . . that the diagnosis is shaded
          by doubt, and there is medical expert
          opinion contrary to the opinion of the
          attending physician, then the trier of the
          fact is left free to adopt that view which
          is most consistent with reason and justice.

Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 471,

162 S.E. 8, 9 (1932).

     The record in this case contains conflicting medical

opinions on the issue of whether Johnson "has ever been on a

regimen of medications which might reasonably . . . control

difficult hypertension."   The hearing officer found Dr.


                              - 10 -
Griffith's opinion to be more credible.   Furthermore, the most

recent reports from Johnson's physicians demonstrate that her

blood pressure was being controlled.   Relying upon the

recommendations of the medical board and the hearing officer,

the Retirement System found that Johnson had failed to establish

that her incapacity is "likely to be permanent," Code

§ 51.1-156(E), and denied Johnson's claim.   Substantial evidence

in the record supports that finding.   Accordingly, we affirm the

judgment.

                                                          Affirmed.




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