COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, O’Brien and Malveaux 

Argued at Richmond, Virginia 

MICKEY L. RHOADES 

 MEMORANDUM OPINION* BY 

v. Record No. 2104-17-2 JUDGE MARY BENNETT MALVEAUX 

 DECEMBER 18, 2018 

VIRGINIA RETIREMENT SYSTEM 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Joi J. Taylor, Judge 

 Bruce K. Billman for appellant. 

 Brian J. Goodman, Legal Affairs & Compliance Coordinator, 

Virginia Retirement System (Mark R. Herring, Attorney General; 

Stephen A. Cobb, Deputy Attorney General; Heather Hays 

Lockerman, Senior Assistant Attorney General/Section Chief, on 

brief), for appellee. 

 Mickey L. Rhoades appeals a decision of the Circuit Court of the City of Richmond 

affirming the final case decision of the Virginia Retirement System (“VRS”) denying her claim for 

disability retirement benefits. She contends the circuit court erred in ruling that the denial by VRS 

was supported by substantial evidence. We affirm the decision.

I. BACKGROUND 

“We view the evidence in the light most favorable to VRS, the prevailing party below.” 

Hedleston v. Va. Ret. Sys., 62 Va. App. 592, 594 (2013). 

In January 2012, Rhoades developed extreme headaches. She woke up one day with 

intense pain in her right ear, which rapidly progressed to complete facial paralysis on the right 

side of her face. Rhoades’ hearing in her right ear was temporarily reduced, but it improved. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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She visited an emergency room and was treated with steroids and antiviral medication. Rhoades 

was diagnosed with Bell’s palsy. In February 2012, Rhoades continued to experience extreme 

headaches and eye strain. In April 2012, she had acupuncture treatments, which she stated “may 

have helped her some.” In June 2012, Rhoades made “some recovery” from the January 2012 

episode, and was able to start to close her right eye and draw her face up on the right side. Later 

that month, Dr. Bruce Redmon, an ear, nose, and throat specialist (“ENT”), reported that 

Rhoades was “making slow progress.” She had voluntary movement of the mid-face and could 

close her right eye, but she had no significant movement of her forehead or the corner of her 

mouth. 

In August 2012, Rhoades was evaluated by Dr. Christopher Moore at the University of 

Virginia Health System. She reported less pain and mild improvement in the movement of her 

face, but still noted some facial weakness and eye watering. 

In January 2013, Rhoades saw Dr. Redmon for a follow-up appointment. He reported 

that she still had some residual weakness of the right side of the face, but her facial tone at rest 

had improved significantly, and she also had significant improvement in the movement of her 

right face. 

Rhoades saw Dr. Kofi Boahene, an ENT at Johns Hopkins Medicine, in December 2013. 

He opined that her January 2012 episode was more likely Ramsay Hunt syndrome1

 than Bell’s 

palsy. He reported that Rhoades had chronic right-sided facial paralysis and wanted to approach 

the condition in a “conservative manner.” Boahene recommended facial retraining exercises 

followed by Botox treatments of muscles in the neck and around the eye. 

 1

 Ramsay Hunt syndrome is characterized in part by severe facial palsy and may result in 

deafness, tinnitus, and vertigo. Taber’s Cyclopedic Medical Dictionary 1992 (23d ed. 2017) 

(defining “Ramsay Hunt syndrome”). 
- 3 - 

Rhoades received physical therapy at Johns Hopkins Hospital, The National 

Rehabilitation Hospital, and The Jackson Clinics. A therapist’s record from Rhoades’ visit to 

The Jackson Clinics on January 1, 2014, noted that her “rehab potential is fair to make 

significant functional gains in a reasonable length of time with the skilled intervention of the 

physical therapist.” 

However, in a letter to VRS dated June 20, 2014, Rhoades stated that no treatment she 

had received since developing right side facial paralysis had been successful and that the 

condition caused her severe and constant pain and headaches, along with reduced right side 

peripheral vision. 

At the time of her initial episode in January 2012, Rhoades was employed as a housing 

advocate for the City of Manassas. She left that position in June 2013 not because of her health, 

but “because the grant ran out.” On August 12, 2013, she became employed as a zoning 

administrator/planner for the Town of Round Hill. A job description for the position noted that 

its primary job duties included the following: analyzing and reviewing development plans; 

interpreting and enforcing the town’s zoning ordinance; reviewing, updating, and revising the 

town’s planning, zoning, and land use documents; preparing background information for public 

hearings; preparing staff reports; researching and writing grant applications; and performing 

special projects and studies as requested. 

In November 2013, Rhoades’ supervisor told her that the town council was dissatisfied 

with her performance and that she was disorganized and did not pay attention at meetings. 

During a January 2014 disciplinary meeting, she was given an improvement plan. In the plan, 

Rhoades was informed that her “performance in the areas of organization, preparation, and 

assuming responsibility ha[d] not met the [c]ouncil’s expectations” and that her performance in 

these areas needed to improve within a three-month period. 
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On April 29, 2014, Rhoades was terminated from her position with the Town of Round 

Hill. In a June 2014 letter to VRS, Rhoades stated that the Town of Round Hill had terminated 

her employment because she was not “meeting the requirements of the job.” However, on June 

16, 2014, a human resources representative for the Town of Round Hill completed a form stating 

that Rhoades was performing all of the duties listed on the job description for her position. 

On May 12, 2014, Rhoades filed an application with VRS for disability retirement 

benefits pursuant to the provisions of Code § 51.1-156(E). She cited facial paralysis and 

headaches due to the paralysis as her disabling conditions and indicated that these conditions 

prevented effective oral presentation and hindered her ability to concentrate and make clear 

decisions. 

In the physician’s report section of the application, Dr. George Stergis, a neurologist, 

stated that Rhoades had a diagnosis of Ramsay Hunt syndrome with a date of onset of January 

2012. Dr. Stergis also opined that Rhoades’ “uncontrolled facial pain” prevented her from 

performing her work duties and that she became unable to work beginning May 7, 2014. When 

asked to indicate what improvement Rhoades could expect within one year of treatment, 

Dr. Stergis stated, “None.” He checked a box indicating “yes” when asked if he considered 

Rhoades to be permanently disabled from performing her work duties. 

On July 10, 2014, the Medical Board conducted an initial review of Rhoades’ case.2

 The 

Medical Board recommended denying Rhoades’ application for disability, noting that Rhoades’ 

disabling condition was “self-limiting” and that she did not have a permanent neurological 

 2

 The Medical Board is “composed of physicians or other health care professionals who 

are not eligible to participate in” VRS. Code § 51.1-124.23(A). Among other duties, the 

Medical Board is charged, by statute, with “[i]nvestigating all essential health and medical 

statements and certificates filed in connection with disability retirement” and “[s]ubmitting to 

[VRS] a written report of its conclusions and recommendations on all matters referred to it.” 

Code § 51.1-124.23(B)(2) and (B)(3). 
- 5 - 

disability which would prevent her from performance of her work duties. VRS denied Rhoades’ 

application on July 14, 2014. Rhoades sought review within VRS, submitting new letters and 

medical records from Dr. Stergis and Dr. Stefan Dupont. 

The letter submitted from Dr. Stergis was dated July 14, 2014, and in it he wrote that 

Rhoades “remained symptomatic as [her] recovery has been incomplete” and “requires 

medications that have unfortunately caused her to become forgetful and inattentive.” Dr. Stergis 

wrote that alternative pain management strategies had proven “useless,” and as a result Rhoades 

was unemployable “as she cannot learn new information.”3

 

Rhoades submitted new medical records from an August 15, 2014 visit to Dr. Stefan 

Dupont, a vascular neurologist in Akron, Ohio. The notes from this visit indicate that Rhoades’ 

facial pain had worsened and that the frequency of this pain was persistent. The notes further 

indicate that Botox treatments had not been helpful. The recommended treatment was for 

Rhoades to enroll in a chronic pain rehabilitation program at Cleveland Clinic Hospital. In a 

letter dated September 2, 2014, Dr. Dupont opined that Rhoades’ facial paralysis would not 

improve and that she had a permanent neurological disability which would prevent her from 

adequately performing her previous duties. 

On October 29, 2014, the Medical Board reviewed Rhoades’ submitted documentation in 

its second review of her claim. The Medical Board continued to recommend the denial of 

Rhoades’ application. It stated that Rhoades’ recommended treatment was facial exercises and 

Botox and that she had not provided additional objective treatment documentation regarding her 

response to this treatment. It also noted that Rhoades had reported memory impairment, but her 

reported pain medication did not have a typical adverse reaction of memory impairment. 

 3

 Dr. Stergis had previously opined in notes from a visit by Rhoades on May 20, 2014, 

that Rhoades was “unable to commute to a job” and “unemployable.” 
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Further, she had not had any objective testing of her cognitive functions such as a neurocognitive 

evaluation. Additionally, the Medical Board stated that Rhoades might benefit from 

interventional pain management for her facial pain and that there were different surgical options 

to correct for facial asymmetry. It concluded that Rhoades had not had “all therapeutic options 

which may provide significant improvement in her condition.” On October 30, 2014, VRS again 

denied Rhoades’ application. 

Rhoades again sought review of this decision within VRS. She submitted additional 

evidence, including medical records from Cleveland Clinic Hospital and a questionnaire 

completed by Dr. Stergis. 

The medical records from Cleveland Clinic Hospital’s Pain Management Center indicate 

that on October 6, 2014, Rhoades was evaluated by Dr. Robert Bolash. Rhoades reported 

right-sided facial pain and numbness in her upper arm and hand. She also stated that she was 

unable to fully close her mouth, had difficulty concentrating, and had tremors in her neck, right 

eye, and anterior facial muscle when she was exhausted. The records from this visit indicate that 

Rhoades reported that she had Botox treatments in November 2013 at Johns Hopkins and that the 

Botox relieved 90% of her pain symptoms but wore off after six months. 

The records from Cleveland Clinic Hospital also indicated that on November 7, 2014, 

Rhoades had a spinal MRI which revealed mild degenerative changes in the cervical spine. 

On December 29, 2014, Rhoades again visited Cleveland Clinic Hospital’s Pain 

Management Center. She reported cervical spasms and pain in her neck and right face. She also 

reported that her facial pain had worsened two months earlier, at which point she visited the 

emergency room. The notes reflect that Rhoades did not respond well to Lyrica medication, but 

that she had responded to Botox injections to cervical muscles in the past “with > 75% pain 

reduction for 9 months.” Rhoades was given Botox injections during the visit. Dr. Bolash 
- 7 - 

reported that Rhoades’ right-sided facial droop had improved since her last visit. He also 

changed her medication from Lyrica to another medication. 

In a questionnaire completed on March 17, 2015, Dr. Stergis indicated that he last saw 

Rhoades on May 20, 2014, after which she moved to Ohio. When asked whether, to a 

reasonable degree of medical probability, Rhoades’ condition was expected to improve in the 

future, Dr. Stergis checked “yes.” However, he checked “no” when asked if Rhoades’ ability to 

function on an eight-hour day, five-day per week basis was expected to improve in the future. 

He noted that his answers were “based on [Rhoades’] last exam.” 

On April 16, 2015, the matter was heard before a hearing officer. During the hearing, 

Rhoades stated that physical therapy did not really help her condition and “[s]ometimes it made 

it worse.” Rhoades testified that when she appeared confused at her job, it was because she was 

“concentrating on the pain” rather than the job. She stated that she was terminated because “at 

that point [she] couldn’t do [her] job.” 

On May 18, 2015, the Medical Board completed a third review of Rhoades’ claim. The 

Medical Board noted that Rhoades had an MRI which showed only mild degenerative changes. 

It also noted that Rhoades had received Botox injections and reported having 75% improvement 

in her symptoms. The Medical Board continued to find no objective evidence of a permanent 

neurological impairment, and again recommended denial of Rhoades’ application. 

On June 15, 2015, the hearing officer issued his decision. He concluded that the medical 

reports and the evidence adduced at the informal fact-finding hearing demonstrated that Rhoades 

did not satisfy the disability retirement requirements of Code § 51.1-156. The hearing officer 

noted that “[s]everal doctors have concluded that [Rhoades] is disabled due to RHS [Ramsay 

Hunt syndrome]; however, their reports do not explain why several treatment options noted 

elsewhere in the record will not work and alleviate her pain and blurred vision.” Further, the 
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hearing officer found that Rhoades was terminated “for disorganization, lack of professional 

image in public meetings, poor preparation, failure to forward emails and lack of responsibility,” 

and thus “the case record documents inadequate job performance, not incapacity from a medical 

condition.” The hearing officer also noted that after her January 2012 episode of Ramsay Hunt 

syndrome, Rhoades returned to work at the City of Manassas and was later hired by the Town of 

Round Hill; “[i]n view of these facts, her facial pain and blurred vision cannot be said to have 

incapacitated her.” 

On August 25, 2015, VRS issued a final case decision denying Rhoades’ application. In 

its final case decision, VRS found that Rhoades was not incapacitated for the further 

performance of duty and that even if it were to find that she was incapacitated, the medical 

evidence does not demonstrate that such incapacity was likely to be permanent. 

On October 22, 2015, Rhoades filed a petition for appeal of the final case decision to the 

circuit court. The circuit court affirmed VRS’s final case decision denying Rhoades’ application 

for disability retirement benefits. The court found substantial evidence in the administrative 

record to support VRS’s findings that Rhoades was not disabled under Code § 51.1-156 and that 

her condition lacked permanency. 

Rhoades now appeals the decision of the circuit court. 

II. ANALYSIS 

 On appeal, Rhoades argues that the circuit court erred in finding that substantial evidence 

supported VRS’s findings that (1) she was not incapacitated for the further performance of her 

duties as a zoning administrator/planner, and (2) if she was incapacitated, her incapacity was not 

likely to be permanent.4

 

 4

 On appeal to this Court, Rhoades also assigned error to VRS’s determination that she 

was not entitled to disability retirement because her condition existed at the time she became a 

VRS member and the medical evidence did not indicate that her condition substantially 
- 9 - 

 In an appeal of an agency decision, “the party complaining of the agency action must 

demonstrate an error of law, which error may include ‘the substantiality of the evidentiary 

support for findings of fact.’” Va. Ret. Sys. v. Blair, 64 Va. App. 756, 763 (2015) (quoting Code 

§ 2.2-4027). 

The meaning and application of the substantial evidence standard 

in the context of appellate review have been long established. As 

we have stated on numerous occasions, an appellate court applying 

the substantial evidence standard may “reject an agency’s factual 

findings only if, considering the record as a whole, a reasonable 

mind would necessarily come to a different conclusion. 

“Substantial evidence” refers to such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” 

Id. at 765 (quoting Doctors’ Hosp. of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 607 

(2008)). In making the substantial evidence determination, “the reviewing court shall 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, 242 (1988). 

A. Incapacitated for Further Duty 

 Code § 51.1-156(E) sets the standard for disability retirement for VRS. The statute 

provides, in pertinent part, that a member may be retired for disability after the Medical Board 

certifies that “the member is and has been continuously since the effective date of retirement if 

prior to filing of the notification, mentally or physically incapacitated for the further performance 

of duty.” Code § 51.1-156(E)(i). 

 

worsened during her employment. However, as both parties acknowledged at oral argument, the 

circuit court found that VRS had abused its discretion in finding that her condition pre-existed 

her membership in VRS. Therefore, as the circuit court has already ruled in Rhoades’ favor on 

this issue, we do not consider Rhoades’ argument regarding the existence of her condition at the 

time she became a VRS member. 
- 10 - 

 Rhoades argues that substantial evidence did not support VRS’s decision that she is not 

incapacitated for the further performance of her duties as a zoning administrator/planner. In 

support of her argument, Rhoades points to the job description she provided and the 

improvement plan she was given by the Town of Round Hill which stated that she was not 

“meeting the [c]ouncil’s expectations.” Rhoades argues that the evidence established that her 

termination was for a medical reason rather than for performance reasons. She notes that several 

doctors concluded that she was disabled by Ramsay Hunt syndrome and several medical reports 

acknowledged that her condition is capable of producing pain, which she stated caused her poor 

work performance because she was “concentrating on the pain rather than [her] job.” 

 However, we find that the administrative record supports VRS’s finding that Rhoades 

was not incapacitated for the further performance of duty under Code § 51.1-156(E). At the time 

of her initial episode in January 2012, Rhoades was employed as a housing advocate for the City 

of Manassas. She left that position in June 2013 not because of her health, but “because the 

grant ran out.” On August 12, 2013, she began work as a zoning administrator/planner for the 

Town of Round Hill. While Rhoades continued to seek treatment for her condition during this 

time period, the hearing officer noted that after Rhoades’ January 2012 episode of Ramsay Hunt 

syndrome, she returned to work at the City of Manassas and was later hired by the Town of 

Round Hill. She still was able to return to work and obtain a new job while experiencing 

symptoms of her medical condition. In addition, following her termination, a human resources 

representative of the Town of Round Hill filled out a form stating that Rhoades was performing 

all of the duties listed on the job description for her position when she was terminated. 

 Further, Dr. Stergis opined Rhoades was “unemployable” and “permanently disabled” in 

May and July 2014, after Rhoades’ termination from employment in April 2014. None of 

Rhoades’ treating physicians opined that she was unable to work due to her disabling condition 
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prior to her termination in April 2014. Dr. Stergis specifically opined that the date Rhoades 

“became unable to work” was May 7, 2014. 

 While there may be contrary evidence in the record in the form of Rhoades’ testimony 

that her poor job performance was due to her pain, this does not compel the conclusion that there 

was not substantial evidence to support VRS’s alternate conclusion. Rather, we examine 

whether substantial evidence supported VRS’s determination. See Blair, 64 Va. App. at 769 

(“The existence of evidence in the record supporting a contrary conclusion does not establish that 

there is not substantial evidence in the record to support an agency’s determination.”). Under the 

substantial evidence standard, this Court “reject[s] an agency’s factual findings only if, 

considering the record as a whole, a reasonable mind would necessarily come to a different 

conclusion.” Id. at 765 (quoting Stroube, 52 Va. App. at 607). Considering the record as a 

whole, we cannot say that a reasonable mind necessarily would come to a different conclusion 

from the one reached by VRS. Further, 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 [of the medical science debate] to choose between 

conflicting expert medical opinions.”’” Johnson v. Virginia Ret. Sys., 30 Va. App. 104, 111 

(1999) (alterations in original) (quoting Stancill v. Ford Motor Co., 15 Va. App. 54, 58 (1992)). 

Therefore, we find that substantial evidence supports VRS’s finding that Rhoades was not 

incapacitated for the further performance of her duties as a zoning administrator/planner. 

B. Likelihood of Permanency 

 Rhoades further argues substantial evidence did not support VRS’s decision that she 

failed to show that her condition is likely to be permanent. Code § 51.1-156(E) provides that, for 

a member to qualify for disability retirement benefits, the Medical Board “shall certify that 

(i) the member is and has been continuously since the effective date of retirement if prior to 
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filing of the notification, mentally or physically incapacitated for the further performance of 

duty, (ii) the incapacity is likely to be permanent, and (iii) the member should be retired.” We 

have already held under Rhoades’ first assignment of error that VRS did not err in determining 

that she was not incapacitated. Because this holding is dispositive as to whether VRS erred in 

denying Rhoades’ application for disability retirement benefits, we need not address her 

argument regarding permanency. 

III. CONCLUSION 

 For the reasons set forth above, we conclude that the circuit court did not err in affirming 

VRS’s decision denying Rhoades’ application for disability retirement benefits. 

Affirmed.