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 MAR Y 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 Affair s & Compliance Coordinator, Virginia Retirement Sy stem (Mark R. Herring, Attorney General; Stephen A. Cobb, Deputy Atto rney General; Heather Hays Lockerman, Senior Assistant Attorney General/Section Chief, on brief), for appellee.
Mickey L. Rhoades appeals a deci sion of the Circuit Court of t he City of Richmond affirming the final case decision of the Virginia Retirement Sy stem (“VRS”) denyi ng 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 l ight most favorable to VRS, the p revailing party below.” Hedleston v. Va. Ret. Sys., 62 Va. App. 592, 594 (2013). In January 2012, Rhoades develope d extreme headaches. She woke up one day with intense pain in her right ear, whi ch rapidly progressed to comp lete facial paralysis on the right side of her face. Rhoades’ heari ng in her right ear was tempor arily reduced, but it improved.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - She visited an emergency room and was treated with steroids and antiviral medication. Rhoades was diagnosed with Bell’s pals y. In February 2012, Rhoades con tinued to experience extreme headaches and eye strain. In A pril 2012, she had acupuncture treatments, which she stated “may have helped her some.” In June 2012, Rhoades made “some recove ry” from the January 2012 episode, and was able to start t o close her right eye and draw her face up on the right side. Later that month, Dr. Bruce Redmon, an ear, nose, and throat speciali st (“ENT”), reported that Rhoades was “making slow progress.” She had voluntary movement of the mid-face and could close her right eye, but she ha d no significant movement of her forehead or the corner of her mouth. In August 2012, Rhoades was eval uated by Dr. Christopher Moore at the University of Virginia Health System. She re ported less pain and mild improv ement in the movement of her face, but still noted some facial weakness and eye watering. In January 2013, Rhoades saw Dr. R edmon for a follow-up appoint ment. 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 s he also had significant improv ement 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 epis ode was more likely Ramsay Hunt syndrome 1 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 charact erized in part by severe facial palsy and may result in deafness, tinnitus, and vertigo. T aber’s Cyclopedic Medical Di ctionary 1992 (23d ed. 2017) (defining “Ramsay Hunt syndrome”).- 3 - Rhoades received physical thera py at Johns Hopkins Hospital, Th e National Rehabilitation Hospital, and The Jackson Clinics. A therapist’ s record from Rhoades’ visit to The Jackson Clinics on Janua ry 1, 2014, noted that her “rehab p otential is fair to make significant functional gains i n a reasonable length of time with the skilled int ervention of the physical therapist.” However, in a letter to V RS dated June 20, 2014, Rhoades stated that no treatment she had received since developing rig ht side facial paralysis had b een successful and that the condition caused her severe and con stant pain and headaches, al ong with reduced right side peripheral vision. At the time of her initial ep isode in January 2012, Rhoades was employed as a housing advocate for the City of Manassas. She left that position in J une 2013 not because of her health, but “because the grant ran out.” On August 12, 2013, she becam e employed as a zoning administrator/planner for the Town of Round Hill. A job descri ption for the position noted that its primary job duties included the following: analyzing and r eviewing development plans; interpreting and enfor cing the town’s zoni ng ordinance; reviewi ng, updating, and revising the town’s planning, zoning, and land us e documents; preparing back ground information for public hearings; preparing staff reports; researching and writing gran t applications; and performing special projects and studies as requested. In November 2013, Rhoades’ supervis or told her that the town co uncil was dissatisfied with her performance and that sh e was disorganized and did not pay attention at meetings. During a January 2014 disciplinar y meeting, she was given an im provement 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 expectati ons” and that her performance in these areas needed to improve w ithin a three-month period.- 4 - On April 29, 2014, Rhoades was terminated from her position wit h the Town of Round Hill. In a June 2014 letter to VRS , Rhoades stated that the To wn 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 Roun d 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 app lication with VRS for disability retirement benefits pursuant to the pr ovisions 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 prese ntation and hindered her ability to concentrate and make clear decisions. In the physician’s report secti on of the application, Dr. Georg e Stergis, a neurologist, stated that Rhoades had a dia gnosis of Ramsay Hunt syndrome wit h a date of onset of January 2012. Dr. Stergis also opined that Rhoades’ “uncontrolled faci al pain” prevented her from performing her work duties and that she became unable to work b eginning May 7, 2014. When asked to indicate what improveme nt 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 dut ies. On July 10, 2014, the Medical Board conducted an initial reviewof Rhoades’ case. 2 The Medical Board recommended denying R hoades’ application for disa bility, noting that Rhoades’ disabling condition was “self-limiting” and that she did not ha ve a permanent neurological

2 The Medical Board is “compose d of physicians or other health c are professionals who are not eligible to particip ate 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 o n 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. Rhoade s sought review within VRS , submitting new letters and medical records from Dr. Ste rgis 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 incomp lete” and “requires medications that have unfortunate ly caused her to become forget ful and inattentive.” Dr. Stergis wrote that alternative pain man agement strategies had proven “u seless,” and as a result Rhoades was unemployable “as she cannot learn new information.” 3 Rhoades submitted new medical records from an August 15, 2014 v isit to Dr. Stefan Dupont, a vascular neurologist in Akron, Ohio. The notes from this visit indicate that Rhoades’ facial pain had worsened and tha t the frequency of this pain wa s persistent. The notes further indicate that Botox treatment s had not been helpful. The recommended treatment was for Rhoades to enroll in a chronic pain rehabilitatio n program at C leveland Clinic Hospital. In a letter dated September 2, 2014, D r. Dupont opined that Rhoades’ facial paralysis would not improve and that she had a perman ent neurological disability wh ich would prevent her from adequately performing h er previous duties. On October 29, 2014, the Medical Boa rd reviewed Rhoades’ submit ted documentation in its second review of her claim. T he Medical Board continued to recommend the denial of Rhoades’ application. It state d that Rhoades’ recommended trea tment was facial exercises and Botox and that she had not provide d additional objective treatm ent documentation regarding her response to this treatment. It also noted that Rhoades had rep orted memory impairment, but her reported pain medication did not have a typical adverse reactio n of memory impairment.

3 Dr. Stergis had previously opi ned in notes from a visit by Rho ades on May 20, 2014, that Rhoades was “unable to com mute to a job” and “unemployable .”- 6 - Further, she had not had any obj ective testing of her cognitive functions such as a neurocognitive evaluation. Additionally, the Med ical Board stated that Rhoade s might benefit from interventional pain management for her facial pain and that the re were different s urgical options to correct for facial asymmetry. I t concluded that Rhoades had not had “all therapeutic options which may provide significant improvement in her condition.” O n October 30, 2014, VRS again denied Rhoades’ application. Rhoades again sought review of t his decision within VRS. She s ubmitted additional evidence, including medical records from Cleveland Clinic Hospi tal and a questionnaire completed by Dr. Stergis. The medical records from Cleveland Clinic Hospital’s Pain Manag ement Center indicate that on October 6, 2014, Rhoades was evaluated by Dr. Robert Bo lash. Rhoades reported right-sided facial pain and nu mbness in her upper arm and hand. She also stated that she was unable to fully close her m outh, had difficulty concentrating, and had tremors in her neck, right eye, and anterior facial muscle when she was exhausted. The re cords from this visit indicate that Rhoades reported that she ha d Botox treatments in November 2013 at Johns Hopkins and that the Botox relieved 90% of her pain sym ptoms 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 chang es in the cervical spine. On December 29, 2014, Rhoades again visited Cleveland Clinic Ho spital’s Pain Management Center. She reported cervical spasms and pain in he r neck and right face. She also reported that her facial pain ha d worsened two months earlier, at which point she visited the emergency room. The notes refl ect that Rhoades did not respond well to Lyrica medication, but that she had responded to Botox inj ections to cervical muscles in the past “with > 75% pain reduction for 9 months.” Rhoades was given Botox injections du ring the visit. Dr. Bolash- 7 - reported that Rhoades’ right-sid ed facial droop had improved si nce her last visit. He also changed her medication from Ly rica to another medication. In a questionnaire complete d on March 17, 2015, Dr. Stergis ind icated that he last saw Rhoades on May 20, 2014, after which she moved to Ohio. When a sked whether, to a reasonable degree of medical p robability, Rhoades’ condition wa s expected to improve in the future, Dr. Stergis checked “ye s.” However, he checked “no” wh en asked if Rhoades’ ability to function on an eight-hour day, fiv e-day per week basis was expe cted 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 office r. During the hearing, Rhoades stated that physical therapy did not really help her co ndition and “[s]ometimes it made it worse.” Rhoades testified that when she appeared confused a t her job, it was because she was “concentrating on the pain” rather than the job. She stated th at she was terminated because “at that point [she] c ouldn’t do [her] job.” On May 18, 2015, the Medical Board com pleted a third review of Rhoades’ claim. The Medical Board noted that Rhoade s had an MRI which showed only m ild degenerative changes. It also noted that Rhoades had r eceived Botox injections and re ported having 75% improvement in her symptoms. The Medical Board continued to find no object ive evidence of a permanent neurological impairment, and a gain recommended denial of Rhoade s’ application. On June 15, 2015, the hearing officer issued his decision. He concluded that the medical reports and the evidence adduced a t the informal fact-finding h earing demonstrated that Rhoades did not satisfy the disability ret irement requirements of Code § 51.1-156. The hearing officer noted that “[s]everal doctors ha ve concluded that [Rhoades] is disabled due to RHS [Ramsay Hunt syndrome]; however, their reports do not explain why sever al treatment options noted elsewhere in the record will not work and alleviate her pain an d blurred vision.” Further, the- 8 - hearing officer found that Rhoades was terminated “for disorgan ization, lack of professional image in public meetings, poor prep aration, failure to forward emails and lack of responsibility,” and thus “the case record documen ts inadequate job performance, not incapacity from a medical condition.” The hearing officer a lso noted that after her Janu ary 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 f acts, her facial pain and blur red vision cannot be said to have incapacitated her.” On August 25, 2015, VRS issued a fin al case decision denying Rh oades’ application. In its final case decision, VRS found t hat Rhoades was not incapac itated for the further performance of duty and that even i f it were to find that she w as incapacitated, the medical evidence does not demonstrate that such incapacity was likely t o 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 dec ision denying Rhoades’ application for disability retirement bene fits. The court found substantia l evidence in the administrative record to support VRS’s findings t hat Rhoades was not disabled under Code § 51.1-156 and that her condition lacked permanency. Rhoades now appeals the deci sion of the circuit court.
II. ANALYSIS On appeal, Rhoades argues that th e circuit court erred in find ing 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 in capacitated, her incapacity was not likely to be permanent. 4

4 On appeal to this Court, Rhoade s also assigned error to VRS’s determination that she was not entitled to disability retirement because her conditionexisted at the time she became a VRS member and the medical evi dence did not indicate that her c ondition substantially- 9 - In an appeal of an agency decisi on, “the party complaining of the agency action must demonstrate an error of law, whi ch error may include ‘the subst antiality 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 standar d in the context of appe llate review have bee n long established. As we have stated on numerous occasions, an appellate court applyi ng the substantial evidence standard may “reject an agency’s factu al findings only if, considering the r ecord as a whole, a reasonab le 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. Stro ube, 52 Va. App. 599, 607 (2008)). In making the substant ial evidence determination, “th e reviewing court shall take due account of the presumption of offici al regularity, the experien ce and specialized competence of the agency, and the purposes of the basic law under which the a gency 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 standa rd for disability retirement for VRS. The statute provides, in pertinent part, that a member may be retired for d isability 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 inc apacitated for the f urther performance of duty.” Code § 51.1-156(E)(i).

worsened during her employment. H owever, as both parties ackno wledged at oral argument, the circuit court found that VRS ha d abused its discretion in findi ng that her cond ition pre-existed her membership in VRS. Therefore , as the circuit court has alr eady ruled in Rhoades’ favor on this issue, we do not consider Rhoa des’ argument regarding the existence of her condition at the time she became a VRS member.- 10 - Rhoades argues that substant ial evidence did not support VRS’s decision that she is not incapacitated for the further perf ormance of her duties as a zo ning 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 expecta tions.” Rhoades argues that th e evidence established that her termination was for a medical re ason rather than for performanc e reasons. She notes that several doctors concluded that she was disabled by Ramsay Hunt syndrome and several medical reports acknowledged that her conditi on is capable of producing pain, w hich she stated caused her poor work performance because she w as “concentrating on the pain rat her than [her] job.” However, we find that the admi nistrative record supports VRS’s finding that Rhoades was not incapacitated for the f urther 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 o f 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 not ed that after Rhoades’ Janu ary 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 c ondition. In addition, following her termination, a human resources representative of the Town of R ound Hill filled out a form stat ing that Rhoades was performing all of the duties listed on the job description for her positio n when she was terminated. Further, Dr. Stergis opined Rhoa des was “unemployable” and “pe rmanently disabled” in May and July 2014, after Rhoades’ ter mination from employment i n April 2014. None of Rhoades’ treating physicians opine d that she was unable to work due to her disabling condition- 11 - prior to her termination in Apr il 2014. Dr. Stergis specifical ly opined that the date Rhoades “became unable to work” was May 7, 2014. While there may be contrary evi dence in the record in the formof Rhoades’ testimony that her poor job performance was due to her pain, this does no t compel the conclusion that there was not substantial evidence to s upport VRS’s alternate conclus ion. Rather, we examine whether substantial evidence s upported VRS’s determination. Se e Blair, 64 Va. App. at 769 (“The existence of evidence in the record supporting a contrary conclusion does not establish that there is not substantia l evidence in the r ecord to support an a gency’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 (quoti ng Stroube, 52 Va. App. at 607). Considering the record as a whole, we cannot say that a reasonable mind necessarily would c ome to a different conclusion from the one reached by VRS. Further, we have “also observed t hat ‘the deference that we give to the [agency’s] fact findi ng on medical questions is based up on the “unwisdom of an attempt by . . . [courts] uninitiated into the mysteries [of the medica l science debate] to choose between conflicting expert medical opini ons.”’” Johnson v. Virginia Re t. Sys., 30 Va. App. 104, 111 (1999) (alterations in original) (quoting Stancill v. Ford Moto r Co., 15 Va. App. 54, 58 (1992)). Therefore, we find that substant ial evidence supports VRS’s fin ding that Rhoades was not incapacitated for the further perf ormance of her duties as a zo ning administrator/planner.

B. Likelihood of Permanency Rhoades further argues substa ntial evidence did not support VR S’s decision that she failed to show that her conditi on is likely to be permanent. C ode § 51.1-156(E) provides that, for a member to qualify for disability retirement benefits, the Med ical Board “shall certify that (i) the member is and has been c ontinuously since the effective date of retirement if prior to- 12 - filing of the notifica tion, mentally or phys ically incapacitate d for the further performance of duty, (ii) the incapacity is likel y to be permanent, and (iii) the member should be retired.” We have already held under Rhoades’ f irst assignmen t of error that VRS did not err in determining that she was not incapacitated. B ecause this holding is dispos itive as to whether VRS erred in denying Rhoades’ application for d isability 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 reti rement benefits. Affirmed.