March 10, 2017

VRS Used the Wrong Standard on Disability

By Deborah Elkins — March 10, 2017 — Virginia Lawyers Weekly

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.

Teacher duties 

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.

Whose review? 

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.

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