Opinion
November 15, 2007.
Appeal from the Roanoke County Circuit Court — CL07-484.
John P. Fishwick, Jr., Lichtenstein, Fishwick Johnson, Roanoke, Virginia.
Christopher T. McGee, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia.
Dear Counsel:
An instructional assistant for Roanoke County Schools is appealing the decision of the Virginia Retirement System that denied her request for disability retirement. Her physicians and the independent medical examiner all agree that Appellant had developed hypersensitivity to some unknown substance or environmental factor in the high school in which she worked. Her symptoms cleared when she left the building. The school tried to accommodate her with a filtered and air conditioned work environment, but it was not successful, partially because Appellant frequently left the room and went to unfiltered areas of the building. She was resistant to moving to another school, as she did not want to experiment with her health. Each of the physicians recommended that she retire or, in the alternative, not work permanently in buildings that caused her allergy-like symptoms. The hearing officer recommended that Appellant receive a disability retirement. The Virginia Retirement System denied her request.
This matter is presented for appellate review, not for trial. The Court's actions in this case are governed by § 2.2-4027, et seq., Code of Virginia (1950), as amended. The issue presented is whether there was substantial evidence in this case for the Virginia Retirement System to reach its decision to deny Appellant's request for disability retirement pursuant to § 51.1-156 (E), Code of Virginia (1950), as amended. "The phrase `substantial evidence' refers to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Under this standard, the court may reject the agency's findings of fact only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion." Aegis Waste Solutions, Inc. v. Concerned Taxpayers of Brunswick County, 261 Va. 395, 404 (2001), quoting from Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269 (1983).
Applying the facts of this case, it was possible for the Virginia Retirement System to have found that Appellant was eligible for disability retirement. It was also possible for them to find that no medical evidence existed that identified the substance or environmental factor that was bothering her, and whether it or she could have been removed from the school to eliminate the problem. They could have also found that further testing was necessary to identify the caustic substance or factor, thereby making way for effective medical treatment of Appellant's problem. Applying the substantial evidence test to the latter two sets of circumstances, the Virginia Retirement System could have logically found that Appellant failed to prove that she had an incapacity that was permanent. Accordingly, considering the record as a whole, the Court finds that reasonable minds would not have necessarily come to a different conclusion than that reached by the Virginia Retirement System. Appellants request to reverse the denial of her disability retirement will be denied.
The Attorney General should prepare an appropriate order, incorporating this letter opinion by reference, and present the same for entry after first obtaining endorsement of counsel.