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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 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. 
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 Board1 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. 

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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. 

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 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). 

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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 

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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. 

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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 

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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 

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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. 

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 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: 

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 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). 

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 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. 

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 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.

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