A teacher has won another chance to prove she is disabled from teaching elementary school children, because the Virginia Retirement System did not stick to the statutory standard for evaluating the teacher’s claim, according to a Fairfax Circuit Court.
In denying disability benefits to Fairfax teacher Lydia Buschenfeldt, the VRS said she was not disabled because she could still perform a desk job as a “health coach,” and she did not show that her disability was permanent.
But that’s not the standard under the statute that governs the disability determination, the court said.
Under the appropriate standard, set out in Va. Code § 51.1-156(E), the VRS should look to the applicant’s capacity to perform her own occupation. And the statute only asks her to show her incapacity is likely to be permanent.
“The judge said very clearly that, on these records, [the agency] applied a much stronger standard,” with a higher burden on the claimant, said McLean lawyer Craig A. Guthery, who represented the teacher in Buschenfeldt v. VRS (VLW 017-8-023).
For any VRS member seeking disability benefits, Fairfax Circuit Judge Thomas P. Mann’s decision will require the VRS to stay closer to the standard required by the legislature, Guthery said.
Buschenfeldt successfully taught for five years before a series of illnesses prompted her to leave the classroom.
At an administrative hearing on her claim for disability benefits, the hearing officer heard testimony from three physicians in support of her claim. A board-certified cardiovascular physician stated that her neurological disorder of dysautonomia is extremely difficult to treat and likely to be permanent.
Although VRS presented no evidence to rebut Buschenfeldt’s witnesses, the hearing officer nevertheless recommended denying her claim because she had not overcome the presumption of correctness afforded to the VRS Medical Board recommendation to deny benefits.
Buschenfeldt then petitioned the circuit court for review.
The statute governing her claim required the teacher to show that she is mentally or physically incapacitated for the further performance of her duty, and that her incapacity is likely to be permanent, she argued.
Mann said that because the court was reviewing questions of law, there was no need for the presumption of agency correctness to be applied in the teacher’s case.
When the statute speaks of the “further performance of duty,” that means Buschenfeldt’s duties as an elementary school teacher, the court said.
Mann said that Virginia courts had “yet to squarely address this issue,” but he found guidance in a 1986 workers’ compensation case from the Court of Appeals and in a 2011 Fairfax Circuit Court case in which the court considered a VRS benefits applicant’s job as office manager.
Positing “that Ms. Buschenfeldt is able to sit behind a desk and answer phones, and therefore is not likely to be permanently incapacitated, does not apply the statutory requirements,” Mann wrote in his Feb. 27 opinion.
The teacher “cannot stand for extended periods of time, speak at length, bend over, or lift heavy things as required for a teacher and may be incapacitated for further performance of duty as an elementary teacher,” the court said.
Although the VRS final decision used the statutory language of “is incapacitated” and “likely to be permanent” in its final decision, “it is clear from the record that proper standards were not applied throughout the proceedings,” the court said.
The court remanded the matter back to the VRS.
The trial court’s recitation of the physical activities required of an elementary school teacher may provide a strong foundation for the agency to view Buschenfeldt’s claim more favorably on remand.
“It will be difficult for the VRS to justify finding she is not disabled” on another review of her claim, Guthery said.
In his opinion, the judge also may have been expressing some skepticism about the kind of review performed by the VRS Medical Board.
Through a FOIA request, the teacher discovered that the Medical Board upon which VRS relied “is actually a private for-profit corporation based in Piscataway, New Jersey called United Review Services,” Mann said.
“To this day, Ms. Buschenfeldt does not know the identity or qualifications of the people who denied her disability claim,” the judge wrote. In footnotes, he said the Medical Board document “was signed by an individual purporting to be [a] social worker … employed in New Jersey for a private company” and identified as the “VRS Medical Board Coordinator.”
Guthery said his client obtained help from the Virginia Education Association to pursue her FOIA request. The VEA, a nonprofit advocacy group of teachers and school support professionals, can represent members seeking disability benefits.
Several years ago, the VEA noticed that Virginia physicians were no longer signing off on VRS Medical Board recommendations, and it has filed similar FOIA requests in other teacher disability cases, according to Dena Rosenkrantz, Senior Staff Attorney in the VEA Office of Legal Counsel.
The VRS argued that the composition of the Medical Board previously has been challenged, and no court has found the anonymity of the board to warrant remand, according to Mann’s opinion. VRS has been using United Review Services since 2008, according to VRS spokesperson Jeanne Chenault, and its current contract with the company expires in March 2018.
Virginia’s excellent public school system depends on the high quality of its teachers, Guthery said. “We have to treat teachers well,” which means honoring a promise to take care of a teacher who becomes disabled from her duties as a teacher.
The original article was posted to Virginia Lawyers Weekly on March 10, 2017, and can be accessed here. To read the legal opinion letter for Lydia H. Buschenfeldt v. Virginia Retirement System, click here.
A Service for successful Government Contractor Firms and Their Owners
FH+H is teaming up with High Tower Securities to provide Business Owner Sherpa Services. Do you know what it takes to be in the top 7% of CEOs that are satisfied with the outcome of their businesses? 78% of business owners are dissatisfied with their exit and 50% of M&A transactions fail.
WITH A COMPREHENSIVE SHERPA MAP OWNERS CAN SHAPE THEIR FUTURE
Business Owner Sherpa Services offers a customized progress map that you can initiate at any stage of ownership. Our mission is to ensure that you obtain the maximum net value of your life’s work. Our owner- directed process combines personal financial planning with business planning. We collaborate with you to create a progress plan that aligns your vision and goals.
As fiduciaries, we find solutions that are in your best interest and strive to position you for success at any stage of business ownership. Whether you are new to the life of a CEO or identify as a serial entrepreneur, we arm you with the power and competitive advantages to take control of your future.
Business Owner Sherpa differentiators
- Owner-led consultation and services
- Customization and choice
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- Competent, trustworthy professionals driven by the Fiduciary Standard
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Who we serve
We serve the evolving needs of elite Government Contracting entrepreneurs, successful business owners and enlightened CEOs who are ready to win.
We invite CEO’s at any stage of business ownership to engage. Our initial meetings focus on your goals and objectives and our work includes finding the best possible customized solutions to help achieve your goals.
- Consultation at every stage. You deserve the same individualized attention that you give your business and customers. We avoid a ‘one-size-fits-all’approach.
- Your path to success. From your next business venture through retirement, we help you pursue your goals for all phases of your life.
- The right time. Whether you anticipate transitioning in 2 years or 15, you determine the timeline while we help optimize processes to help you benchmark and accomplish your goals.
- Progress mapping. Our combined approach to planning integrates your personal timeline and goals with your business needs, outlining a clear progress toward the future you envision.
- Business valuation assessment. Know what your business is worth, how this impacts future scenarios, and what you can do today that could enhance your business and help maintain control of your options.
Securities are offered through HighTower Securities, LLC, member FINRA/SIPC/MSRB. HighTower Advisors, LLC is a SEC registered investment adviser.
White will give a testimonial about the opportunities and support that the Chamber provides for businesses at a networking and luncheon session from 11:30 a.m. to 1 p.m. March 16.
The event will include connections for a wide variety of industries and subject areas, and attendees will learn how to engage a broad spectrum of employees, how the Chamber's advocacy efforts and communications support a business, and more.
Click here for more information or to register for the event.
Charlottesville, Virginia — On Thursday, March 2, 2017, Partner Rich Gross participated in a conference on the Middle East hosted by the University of Virginia School of Law's Center for National Security Law. The title of the conference was "A Region in Turmoil: Conflicts in the Middle East — Law and Policy." The speakers throughout the day focused on Afghanistan, Iraq, Syria, Libya, and Yemen.
Gross, a 1993 graduate of the UVA School of Law, spoke as part of a panel on "The Middle East Conflicts and the Law of Armed Conflict."
Developing a culture of cybersecurity is important for any company utilizing the Internet. Theft of digital information is now the most commonly reported fraud, so businesses must know how to protect themselves and their employees in order to promote business and consumer confidence. Read the following five essential actions for government contractors in order to develop a culture of cybersecurity.
1. Establish a Cybersecurity Policy
Many growing companies overlook the need for a comprehensive policy on cybersecurity. They may use IT, HR, risk management, and other policies to address cyber threats, vulnerabilities, and procedures in an ad hoc fashion. But preparing the company to prevent and respond effectively to the most common problems requires a holistic approach. The starting point can be a simple document describing the roles of responsible officials. It should reflect an assessment of likely and consequential cyber risks the company faces. Inadvertent disclosure of sensitive information, lost equipment, unauthorized or improper use of company networks, and breach of company or customer data held by a third-party are among the most common problems. To develop a culture of cybersecurity, consider this policy to be a first step that evolves with the company.
2. Educate and Train Employees
Human error remains the greatest cyber vulnerability, and studies show that there is significant cost savings in preventing those errors and executing an efficient response and recovery plan. Programmers, data handlers, IT specialists, company executives, third-party businesses, and others make different kinds of mistakes that affect the company’s risk profile. Minimizing those vulnerabilities likewise requires different kinds of training and education. Ideally, companies form an integrated team of IT, HR, sales, operations, legal, and other professionals to discuss cybersecurity, develop employee training, ensure consistent guidance to employees, identify opportunities for formal cyber education, and rehearse the company’s response to various breaches.
3. Know the Law and Regulations
The cybersecurity field may be viewed as a collection of many interrelated sub-fields related to information security. The FAR and DFAR have long required contractors to implement information security controls. This year the work of a joint Defense Department, General Services Administration, and National Aeronautics and Space Administration effort is expected to result in a new government-wide set of basic security controls for contractors’ information systems. And in the privacy field many federal and state laws apply to disclosure of tax information, personal identifying information, health information, and other sensitive information. Companies working in or transmitting data to other countries may also be subject to international and foreign laws. Knowing how these laws affect business operations and future opportunities is an increasingly complex undertaking.
4. Consider Cyber Insurance
This field has developed significantly over the last five years. A cyber insurance policy is not right for every company, but it can be an important component of an enterprise risk managementprogram. Since there is still great variation in coverage and cost, scrutinize policies to consider what they may not cover—like breaches due to malicious software that is already on the company network when the policy is purchased. This is just one area where an integrated team of experts can help identify and implement the best business decision.
Maintaining the status quo in cybersecurity is an invitation to be the victim of rapidly evolving threats, particularly when companies hold valuable government information or other data. Government contractors have the opportunity to be ahead of the legal and regulatory curve by improving the company’s cyber hygiene and making cybersecurity a salient part of all business activities. Consider improvement to be a leadership issue from two perspectives. The first is that senior executives and board members must be savvy and engaged. The second is that every employee has a leadership role to fill as part of an effective, efficient team.
FH+H Counsel David Delaney focuses his practice on clients’ cyberspace needs. He advises on a wide range of business issues arising under international, federal, and state law, including data security, privacy, breach response, product development, contracts, internal policies, and regulatory compliance. Mr. Delaney can also advise officers and directors on strategic risk management, corporate governance, and leadership programs.
Contact him for more information or questions about cybersecurity.
Hoang served as an officer in the U.S. Army from 2009 to 2010, working in Southeast Afghanistan as the Executive Officer of a U.S. Army Special Forces Company that deployed for seven months of combat operations in support of Operation ENDURING FREEDOM.
Today as an FH+H partner, Hoang uses his unique and extensive experience with defense, intelligence, and homeland security industries to represent, advise, and counsel middle market companies on a wide variety of matters.
HillVets will host a gala on March 15 to thank Hoang, along with the 99 other honored veterans, for going above and beyond in 2016. The celebration will feature live performances and will be attended by several distinguished guests, such as Secretary Chuck Hagel, Secretary David Sulking, and Ambassador Mohib.
Guests can register for the event here.
Gross served more than 30 years in the U.S. Armed Forces, retiring as the most senior operational lawyer in the military at the rank of Brigadier General. He has also served as Legal Advisor for NATO International Security Assistance Force (ISAF) and US forces in Afghanistan and as Legal Counsel to the Chairman of the Joint Chiefs of Staff.
Click here to listen to the podcast.
Partner Jack White will judge nominees for the Professional Service Innovator of the Year award at the Northern Virginia Chamber of Commerce's 2017 Greater Washington Innovation Awards Showcase from 7:30 a.m. to 11 a.m. March 3 at the Fairview Park Marriott.
Guests will have the chance to watch presentations from award nominees that will be judged live. Attendees can also vote for their favorite innovation to win the Business Choice Award.
White, who is a Board Member and Executive Committee Member with the Northern Virginia Chamber as well as Co-Chair of the Veterans & Military Business Counsel, will be the judge for one of the seven award categories.
Categories include Health and Life Sciences Innovator of the Year, Hospitality, Tourism and Entertainment Innovator of the Year, Marketing and Advertising Innovator of the Year, Professional Service Innovator of the Year, Public Service Innovator of the Year, Technology Innovator of the Year for Emerging Businesses, and Technology Innovator of the Year for Mature Businesses.
The Innovation Awards Showcase will also feature booths about innovative products, services, and solutions as well as opportunities to network with professionals who are evolving their industries.
Click here to register.
Would you like to sell your product or service to the largest purchaser in the world?
The law firm of FH+H is pleased to announce a new offering for emerging to mid-market businesses: GovCon University.
GovCon University will provide knowledge and instruction in a modular course format for entrepreneurs who would like to sell their products or services to the federal government. It will also offer instruction for established government contractors who want to avoid some of the legal pitfalls of doing business with federal agencies.
Course topics include: Contract Essentials, FAR, Export Control, NDAs, Teaming Agreements, Bid Protests, and a how-to for veteran- and woman-owned businesses on utilizing their designations for set-aside and sole source contracts.
Regulatory and Business Challenges in the Government Contracting Environment
Presented by GovCon University
June 15, 2017
1 p.m.–5 p.m. (reception to follow)
Stetson University College of Law, Tampa Law Center
1700 North Tampa Street – Tampa, Florida 33602 – Room 136
Registration deadline is June 1, 2017. Fee of $99 waived for attendees registered by the deadline.
Counsel to FH+H Phillip Carter earned a spot on The Mighty 25, an annual list honoring veterans who are expected to do incredible, meaningful work across the nation over the next year.
Carter is dedicated to working with donors and organizations in order to help them understand the needs of veterans. Additionally, his research about issues facing veterans and military personnel helps to inform leaders about making positive differences in veterans' lives.
Carter currently works as a Senior Fellow and Director of the Military, Veterans, and Society Program at the Center for a New American Security, and he also has extensive government and military experience. Carter served in the Army for nine years, worked the Obama campaign as the National Veterans Director, and went on to serve as a Deputy Assistant Secretary of Defense.
With the effort Carter has put into helping the veteran community so far, FH+H is excited to see his next steps.
To read more about Carter and other veterans on The Mighty 25 list, visit We Are The Mighty's website.