State ex rel. Showman v. State Teachers Retirement Sys. of Ohio , 2017 Ohio 2768 ( 2017 )

[Cite as State ex rel. Showman v. State Teachers Retirement Sys. of Ohio, 2017-Ohio-2768.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Rebecca Showman, :
Relator, :
v. : No. 16AP-202
State Teachers Retirement System of Ohio, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on May 11, 2017
On brief: The Bainbridge Firm, and Carol L. Herdman, for
relator.
On brief: Michael DeWine, Attorney General, John J.
Danish, and Mary Therese J. Bridge, for respondent.
IN MANDAMUS
LUPER SCHUSTER, J.
{¶ 1} Relator Rebecca Showman has filed an original action requesting this court
issue a writ of mandamus ordering respondent State Teachers Retirement System of Ohio
to vacate its February 18, 2016 decision denying relator's application for disability benefits
and to grant the application.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
No. 16AP-202 2
{¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
Writ of mandamus denied.
KLATT and BRUNNER, JJ., concur.
No. 16AP-202 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Rebecca Showman, :
Relator, :
v. : No. 16AP-202
State Teachers Retirement System of Ohio, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on January 31, 2017
The Bainbridge Firm, and Carol L. Herdman, for relator.
Michael DeWine, Attorney General, John J. Danish, and
Mary Therese J. Bridge, for respondent.
IN MANDAMUS
{¶ 4} In this original action, relator, Rebecca Showman, requests a writ of
mandamus ordering respondent, State Teachers Retirement System of Ohio ("STRS"),
to vacate its February 18, 2016 decision that denies relator's application for a disability
benefit, and to enter a decision that grants the application.
Findings of Fact:
{¶ 5} 1. On September 3, 2014, relator completed an application for a disability
benefit on a form provided by STRS. On the form, relator indicated that she is
employed by the North Fork Local School District as a fifth grade teacher.
{¶ 6} Section 4 of the form asks the applicant to list specific diagnoses or
conditions that are the cause of disability and that will incapacitate the applicant for the
performance of the applicant's most recent STRS position for at least 12 months from
No. 16AP-202 4
the date the application is received. In response, relator listed three conditions: (1)
clinical depression, (2) panic disorder/anxiety, and (3) social phobia.
{¶ 7} Section 5 of the form asks the applicant to identify the attending physician.
Relator identified Dr. Donald DeShetler.
{¶ 8} 2. On August 31, 2014, Dr. DeShetler completed an STRS form captioned
"Attending Physician's Report." Dr. DeShetler indicated that he specializes in "Family
Practice."
{¶ 9} The form asks the attending physician to certify whether the applicant is
incapacitated for the performance of duty and whether disability is considered
permanent. In the space provided, Dr. DeShetler wrote that disability "may be"
considered permanent.
{¶ 10} 3. By letter dated September 10, 2014, STRS informed relator:
We received an Attending Physician's Report from Dr.
Donald DeShetler, recommending that you do not meet
STRS Ohio's definition of disability. Therefore, your
application for benefits cannot be processed.
***
In order to continue processing your current disability
application, we will need an Attending Physician's Report,
completed by a psychiatrist (M.D. or D.O.) within 30 days of
this letter.
{¶ 11} 4. On October 6, 2014, psychiatrist Sahaja Reddy, M.D., completed an
STRS attending physicians report. In response to the forms query, Dr. Reddy certified
that relator is incapacitated for the performance of duty and that the disability is
expected to last 12 or more months. Dr. Reddy's report was received by STRS on
October 8, 2014.
{¶ 12} Attached to Dr. Reddy's report is a three-page September 15, 2014 report
of certified nurse practitioner ("CNP") Laura Davis regarding relator's treatment at
Dublin Springs. CNP Davis' report states:
The patient had first presented to the Intensive Outpatient
Program for Mental Health on September 10, 2014, with
symptoms of high anxiety and panic with agoraphobia as
well as major depressive disorder symptoms. She was
evaluated by myself on September 10th and I had
No. 16AP-202 5
recommended to her at the time to be reassessed for the
Partial Hospitalization Program. She reports today that she
was reluctant to do so, but her husband had told her to
follow whatever guidelines the staff here had set out for her,
and so she did present for reassessment to the Partial
Hospitalization Program. The patient reports that she has
been depressed and anxious for many years. However, her
anxiety has turned to panic in the last couple years due to
changes instituted at her job as an elementary school
teacher. She is very unhappy about new state testing
requirements and the reports she has to prepared [sic] as
well as the evaluation criteria she is submitted to. This
apparently has caused her a great deal of distress and makes
her feel as though it is impossible for her to work. * * * On
her admission to the Intensive Outpatient Program, I took a
great deal of time with her to explain that she needed more
medication. She had been seeing her primary care physician
who had prescribed her 0.5 mg of Klonopin 2 times daily and
nothing else. * * * She did agree to be prescribed Remeron
and initially I had wanted to start her on 15 mg. Her note
from the Intensive Outpatient Program states 15 mg.
However, at the last minute, the patient had changed her
mind and wanted to try only 7.5 mg. She reports her sleep
was great the first night as it had been very disordered prior
to taking the Remeron, but she now reports she is back to
frequent awakenings about 6 times a night, though she is
able to go back to sleep fairly quickly. She reports no suicidal
ideation today and last experienced suicidal ideation on
Friday after seeing me for assessment for the Intensive
Outpatient Program. She reports the impetus for her suicidal
ideation is worrying about the financial burden she is placing
on her husband if she is to go through with the disability.
The patient seems a good deal calmer today but reports her
anxiety is still at an 8/10, which is down from 10/10 last
Friday. She reports her depression is a 7/10.
***
MENTAL STATUS EXAMINATION
Mood is depressed and anxious. The patient is not tearful
today as she had been last Friday. Thought content is
without suicidal ideation, but last experienced on September
10th. She denies any history of homicidal ideation or
psychotic symptoms. Thought processes remain hopeless,
helpless, and infused with anxiety. The patient is also
perseverated [sic] on whether or not to leave her job as a
No. 16AP-202 6
teacher. Recent and remote memory are impaired with
increase in her mood symptoms. Attention and
concentration are likewise impaired with an increase in her
mood symptoms. Associations are intact. General fund of
knowledge is average to above average. Judgment is fair at
best. Insight is rather poor.
DIAGNOSES:
AXIS I:
1. Major depressive disorder, recurrent, severe, without
psychotic features.
2. Generalized anxiety disorder.
3. Panic disorder with agoraphobia.
AXIS II: Deferred.
AXIS III:
1. Hypertension.
2. Premature ventricular contractions with anxiety and
stress.
AXIS IV: Severe occupational stress.
AXIS V: Global Assessment of Functioning is 39.
***
TREATMENT AND DISCHARGE PLAN NEEDS
The patient is admitted to Dublin Springs Hospital Partial
Hospitalization Program where she will take part in all group
activities and therapy at the direction of the mental health
group therapist. The patient's Remeron will be increased to
15 mg daily and possibly 30 mg daily if her symptoms do not
improve. I will consider the addition of an antidepressant if
her anxiety abates further and she is still experiencing high
depressive symptoms or a return of her suicidal ideation.
{¶ 13} 5. By letter dated October 14, 2014, Earl N. Metz, M.D., the chair of the
Medical Review Board ("MRB"), informed relator:
Acting on behalf of the Medical Review Board, I have advised
a period of psychiatric treatment for [six] months prior to
the determination of disability. This is based on the current
information in the medical records which indicate disability
for psychiatric reasons. I have determined that medical
treatment offers a reasonable expectation of correction or
rehabilitation of the disabling condition to the extent that the
applicant could be expected to be capable of performing
teaching duties within a reasonable time, but not to exceed
No. 16AP-202 7
six months as allowed in Section 3307.62 of the Ohio
Revised Code.
{¶ 14} 6. By letter dated October 14, 2014, STRS informed relator:
After reviewing your attending physician reports, the
Medical Review Board determined that you must secure
psychiatric treatment for six months before further
consideration of your application for disability benefits. The
Retirement System cannot assume financial responsibility
for such treatment. Following six months of treatment, you
should request your doctor to furnish this office with a report
regarding the treatment provided and progress you have
made.
***
Please inform us of the name and address of the psychiatrist
you will be seeing for treatment.
After receiving your doctor's report, we will arrange for
examination. * * *
The Ohio Administrative Code 3307:1-7-04 reserves the right
to request this delay as a prerequisite toward determination
of permanent disability. Failure to promptly obtain the
treatment suggested above will seriously jeopardize any
further consideration of your application.
{¶ 15} 7. On December 16, 2014, treating psychiatrist Erin R. Roylance, D.O.,
who is employed by Behavioral Healthcare Partners of Central Ohio, Inc., wrote:
Her diagnoses are:
294.9 Cognitive Disorder NOS
296.32 Major Depressive Disorder, Recurrent, Moderate
300.02 Generalized Anxiety Disorder
300.21 Panic Disorder With Agoraphobia
She is on the following medications:
Klonopin (clonazepam) (0.5 mg tablet) Take 1 tablet by
mouth three times a day
Remeron (mirtazapine) (15 mg tablet) Take 1 tablet by
mouth at bedtime
No. 16AP-202 8
Her ability to return to work is primarily limited by cognitive
problems. She has had trouble with concentration and
memory. She has difficulty remembering instructions on
how to take medications, she has difficulty remembering
what I have said about follow-up appointments. I told her
repeatedly that she needed to see a therapist in addition to
seeing me, but she called back at least twice because she was
confused about that. In addition, she continues to report
moderate depression and anxiety.
She is taking a benzodiazepine which can worsen memory. I
reduced her dose of Klonopin from 1 mg BID to 0.5 mg TID
today. I plan to further reduce Klonopin on a monthly basis
until she is off. My plan is to get her off of Klonopin and then
consider neuropsych testing if warranted at that time.
I suspect that she has an underlying cognitive disorder that
caused her to lose her ability to function as a teacher. As she
became more aware of her difficulty, I believe that her
anxiety and depression worsened her cognitive function.
Most adults are able to function well even on high doses of
Klonopin. Currently, I believe that she is completely unable
to return to work. I am not confident that she will be able to
return to teaching full time.
{¶ 16} 8. By letter dated December 24, 2014, STRS informed relator:
You have completed the requested delay for treatment. State
Teachers Retirement System will continue to process your
disability application. * * *
Your application included Attending Physician's Reports
from Laura Davis, N.P. and Deshetler and Reddy.
Examinations for determining eligibility for disability
benefits will be assigned by the Medical Review Board only
for conditions specified by you on your application and
reported as permanently disabling by your physician(s). Your
application and attending physician(s) provided support for
the following conditions, depression and anxiety, to be
processed.
{¶ 17} 9. On January 5, 2015, at the request of STRS, relator was examined by
psychiatrist Marjorie C. Gallagher, M.D. In her ten-page narrative report, received by
STRS on January 13, 2015, Dr. Gallagher states:
MENTAL STATUS EXAMINATION: Ms. Showman is a
casually and neatly dressed, middle-aged woman, who
No. 16AP-202 9
appeared younger than her stated age. She was superficially
cooperative. Even though she denied that she was irritable or
angry, she was irritated and defensive at times about the
questions she was being asked. Her mood was mildly
anxious. She teared a few times. She indicated that she was
starting to have a panic attack that only lasted a few seconds.
It did not prevent her from talking. There was no evidence of
any incapacitating anxiety or depression.
Ms. Showman was oriented times three. Her memory,
recent, remote, and immediate, was intact. There was no
evidence of any concentration difficulties. She performed
superiorly on testing for cognitive impairment or dementia.
She was able to remember three out of three items after five
minutes and fifteen minutes in a different order, which is
more difficult to do. She spelled WORLD backwards. She
was able to repeat five digits forwards and four backwards
which is within normal limits. She performed serial sevens
quickly and correctly. She was able to list five out of five
rivers in addition to the St. Lawrence Seaway and five out of
the last five presidents with their first names. She was able to
name Ford and Nixon as additional presidents. She did well
with similarities and differences and abstractly interpreted
two proverbs.
Ms. Showman's thought processes were logical. She denied
current auditory or visual hallucinations or homicidal
ideation. She reports that she was hearing voices while on
citalopram and sertraline. Ms. Showman reports that she
first had suicidal ideation in 1989. She initially reported that
she is not currently suicidal. She then claimed that she
currently has fleeting suicidal thoughts, but not to the extent
that she had in 2/14 and 3/14. She later claimed that she is
praying that she does not act on the suicidal ideation. She
then claimed that she has suicidal ideation with intent and
then prays. She does not call anyone about the suicidal
ideation. She then explained that she has the thought only
for short periods if there is any stress or if there is a tiff
between her mother and son because she cannot handle it.
Ms. Showman denies that she has ever made a suicide
attempt. No delusions were elicited. Reality assessment
appeared good. Impulse control appeared adequate.
DIAGNOSTIC IMPRESSION:
Major Depressive Disorder, Recurrent, In Partial
Remission
No. 16AP-202 10
Generalized Anxiety Disorder
Panic Disorder Without Agoraphobia
Personality Disorder, NOS
Hypertension
Osteoarthritis, Degenerative Knee Joint Disease
S/P Left Total Knee Arthroscopy
DISCUSSION: Ms. Showman reports that she has had
anxiety with panic attacks the last three or four years. She
had a major depressive episode in early 2014. She had had
two previous episodes of depression that had responded to
Paxil, a SSRI. Ms. Showman reports symptoms that suggest
hypomania. Ms. Showman had had an improvement in her
symptoms in late spring and throughout the summer so she
returned to teaching in 8/14. Ms. Showman has only been in
psychiatric treatment since 9/2014. According to Ms.
Showman, she was doing worse after the partial
hospitalization program and IOP at Dublin Springs.
Ms. Showman has been stressed by the paperwork
requirements in her job in the last few years. She lacks
confidence, seeing herself as inadequate. She had had this
symptom in 2005 that had improved with counseling. In
addition, Ms. Showman's elderly mother became ill in 4/14
and has required more care that Ms. Showman has been
providing since that time. Ms. Showman reports that she was
being told by two principals and fellow teachers that she was
doing an excellent job.
Ms. Showman has been in treatment with a psychiatrist since
10/14 and has had an improvement in her symptoms. She
not [sic] longer meets the diagnostic criteria for Major
Depression Disorder. She has had anxiety and panic attacks
for years. Her psychiatrist is appropriately tapering her off
Klonopin. Ms. Showman is motivated to be a writer and is
currently working toward that goal. She has multiple
activities that she enjoys. It would be expected that Ms.
Showman would have further improvement in her
psychiatric symptoms over the next 9 or 10 months with
continued treatment.
Ms. Showman has an extensive list of activities. Any
psychiatric symptoms she currently has are not severe
enough to interfere with her ability to function. Given the
improvement in Ms. Showman' s psychiatric symptoms with
treatment and medication, her list of activities, superior
performance on cognitive testing, and her mental status
No. 16AP-202 11
during the clinical psychiatric evaluation, it is my opinion
that Ms. Showman is not permanently or presumed to be
permanently disabled based on psychiatric evaluation.
RECOMMENDATION: Ms. Showman is not permanently
or presumed to be permanently disabled based on
psychiatric evaluation. Continued psychiatric treatment is
recommended.
{¶ 18} 10. On an STRS form captioned "Recommendation of Medical Examiner,"
Dr. Gallagher indicated by her mark that relator "IS NOT considered to be disabled from
his or her most recent job duties for 12 or more continuous months after the date of
application." (Emphasis sic.) Dr. Gallagher further indicated that "reasonable recovery"
can be anticipated within three to six months.
{¶ 19} 11. Pursuant to Ohio Adm.Code 3307:1-7-01(I) three physicians were
chosen to be the MRB panel in relator's case. The MRB physicians are: (1) psychiatrist
Stephen F. Pariser, M.D., (2) psychiatrist Jeffrey C. Hutzler, M.D., and (3) Barry
Friedman, M.D.
{¶ 20} 12. On January 19, 2015, Dr. Pariser wrote to Dr. Metz:
According to Ms. Showman's application, she has struggled
with Depression and Panic Attacks for the past several years.
She did not respond well to several antidepressants
prescribed by her family physician, Dr. Donald DeShetler.
Ms. Showman reported that her anxiety, panic and
depression have made it difficult for her to carry out her
teaching responsibilities.
***
I concur with Dr. Gallagher's professional option [sic] that
this member is not currently disabled and that her condition
is not work prohibitive. I also suggest that Ms. Showman's
psychiatrist, as noted by Dr. Gallagher, investigate concerns
about possible bipolar disorder.
{¶ 21} 13. On January 20, 2015, Dr. Hutzler wrote to Dr. Metz:
After her examination Dr. Gallagher recommended that Ms.
Showman was not considered to be disabled from her most
recent job duties for 12 or more continuous months after the
date of application, anticipating reasonable recovery in 3 to 6
months.
No. 16AP-202 12
After reviewing these documents it is my
recommendation that Rebecca Ruth Showman is not
considered to be disabled from her most recent job
duties for 12 or more continuous months after the
date of application.
(Emphasis sic.)
{¶ 22} 14. On January 29, 2015, Dr. Friedman wrote to Dr. Metz:
Based on Ms. Showman's extensive activities it was Dr.
Gallagher's opinion that her psychiatric symptoms at this
time were not severe enough to interfere with her ability to
function." [sic] She found no evidence of a cognitive
disorder. It was Dr. Gallagher's opinion that Ms. Showman is
not disabled on a psychiatric basis.
Following my review of the available records and Dr.
Gallagher's evaluation I concur with her opinion that Ms.
Showman is not permanently disabled on a psychiatric basis
with the recommendation that her application for a disability
benefit be denied.
{¶ 23} 15. On February 3, 2015, Dr. Metz wrote to the STRS board:
The disability application of the above named member and
the findings of the appointed examiner have been studied by
the following Medical Review Board members, Dr. Stephen
Pariser, Dr. Jeffrey Hutzler, and Dr. Barry Friedman. The
Medical Review Board concurs with the opinion of the
appointed examiner and recommends that disability benefits
be denied.
{¶ 24} 16. By letter dated February 20, 2015, relator was informed:
This letter is to notify you that the STRS Ohio Retirement
Board took official action at its meeting on February 19,
2015, to deny your application for disability benefits.
* * * You have the right to appeal the Retirement Board
action under Section 3307.62 of the Revised Code and Rule
3307:1-7-05 of the Administrative Code, provided written
notice of appeal is received by STRS Ohio within 15 calendar
days from your receipt of this letter. The request must be
accompanied by a statement from you, your counsel or
attending physician that an appeal will be based on
No. 16AP-202 13
additional medical evidence contrary to the findings of the
Medical Review Board.
{¶ 25} 17. By letter dated March 2, 2015, relator's counsel initiated an
administrative appeal of the February 19, 2015 decision of the STRS retirement board.
{¶ 26} 18. In support of her administrative appeal, relator submitted additional
evidence. Also, relator's counsel submitted a four-page brief in support.
{¶ 27} 19. Under letter dated May 19, 2015, Dr. Metz submitted additional
material to Dr. Gallagher for her review. Dr. Metz's letter states:
You examined the above member for STRS Ohio on
January 5, 2015. Enclosed for your information is additional
material. Please review the new information and let us have
your comments.
If the information is compelling enough to warrant a change
in your initial evaluation, another certification form is
enclosed. If a reexamination is needed, please let us know. If
the enclosed material does not add substantially to the case,
please advise in writing and your original decision will stand.
{¶ 28} 20. On May 29, 2015, Dr. Gallagher issued a second report in response to
Dr. Metz's May 19, 2015 letter. In her two-page narrative report, Dr. Gallagher states:
A letter from Ms. Showman dated 2/22/2015 was reviewed.
As indicated in the mental status, Ms. Showman was
defensive and irritated at times about providing information
especially about her social functioning and activities. She had
not revealed that she was in the process of receiving TMS
treatment at Riverside. She had not revealed that she has
had issues at home with her husband periodically abusing
alcohol. She reported that she had never been abused. She
did have intermittent anxiety as she verbalized once that she
was starting to have a panic attack. She continued to talk in
spite of being told that she could take a break and continued
with the remainder of the evaluation without problems. I did
not discount, "chuckle," make fun of, detract, or say "I do not
understand why family docs prescribe Klonopin right away."
I do understand why they do, as do psychiatrists at times.
The truth is that Ms. Showman herself had indicated that her
family physician should not have prescribed Klonopin as she
explained that her present psychiatrist is in the process of
tapering her off Klonopin.
No. 16AP-202 14
A letter from Mr. Randy Nielsen, Utica elementary principal,
dated 5/12/2105 [sic] was reviewed. A letter from Mr. Scott
Harley, superintendent, dated 5/12/2015 was reviewed. A
letter from psychiatrist Erin Roylance, D.O. dated 5/7/2015
was reviewed. A letter from Mary Brett, LISW-S dated
5/1/2015 was reviewed. Medical records from Dr. Roylance
dated 10/14/14 to 04/12/15 were reviewed. A letter from
Douglas Lunsford dated 5/121/5 [sic] was reviewed.
Ms. Showman has been in psychiatric treatment since
10/14/14 and has had an improvement in her psychiatric
symptoms as indicated by Dr. Roylance's progress notes. In a
progress note on 4/2/2015, Dr. Roylance indicates that Ms.
Showman is "more calm today than I have ever seen her."
Ms. Showman was noted to have moderate depression, fair
judgment and fair attention and concentration. Otherwise,
no other symptoms of depression were noted. From the
history Ms. Showman provided during the psychiatric
evaluation, she is not depressed most of the day nearly every
day and does not have anhedonia. Thus she did not meet the
diagnostic criteria for Major Depressive Disorder.
Psychiatrist Dr. Roylance is appropriately tapering Ms.
Showman off Klonopin, which in the short run may increase
symptoms from withdrawal. High dose Klonopin and the
process of tapering off Klonopin may affect cognition. Dr.
Roylance notes in his progress note of 3/11/2015 that
Klonopin may be making Ms. Showman worse. From Dr.
Roylance's progress note dated 2/10/2015, Ms. Showman
run [sic] out of Klonopin and had been off Klonopin for 10
days. She was taking Ativan that she had had [sic] from an
unknown source in the interim. There was no evidence of
any cognitive impairment during the psychiatric evaluation.
Ms. Showman wrote a six page detailed letter that she would
not have been able to do if she had significant cognitive
impairment. In addition, as noted in the discussion, Ms.
Showman has an extensive list of activities.
After review of the additional information, there is no
objective information provided that would change my
original opinion that Ms. Showman is not permanently or
presumed to be permanently disabled. It is my opinion that
Ms. Showman's psychiatric symptoms would be expected to
continue to improve over the next 3 months especially after
being tapered off high dose Klonopin.
No. 16AP-202 15
{¶ 29} 21. On June 11, 2015, Dr. Metz authored an internal memorandum,
stating:
On February 19, 2015, the STRS Board voted to deny
disability benefits.
That decision was followed by receipt of extensive testimony
from the member, her school principal, and the
superintendent. Psychiatric testimony came from Dr.
Roylance and included outpatient notes. In that material was
reference to treatment of Ms. Showman at the Riverside
Methodist Hospital using transcranial magnetic stimulation
and the opinion of the treating physician that the member
"bordered on psychosis." I can't find any direct reference to
that treatment in the member's file.
All of the new material noted above was forwarded to Dr.
Gallagher for her comments. She responded in a letter to the
MRB dated May 29, 2015. In that letter I believe that Dr.
Gallagher answers effectively the rebuttal arguments. The
recommendation of the MRB to deny disability benefits
remains the same.
{¶ 30} 22. On June 17, 2015, an appeal hearing was held before the Disability
Review Panel. Relator personally appeared with her counsel. Also, relator's principal,
Randy Nielsen appeared.
{¶ 31} 23. On June 18, 2015, the STRS retirement board entered a decision to
affirm its prior decision of February 19, 2015.
{¶ 32} 24. On August 23, 2015, relator filed a mandamus action in this court
which was assigned case number 15AP-800.
{¶ 33} 25. On November 19, 2015, relator filed in this court a Civ.R. 41(A) notice
of dismissal.
{¶ 34} 26. Apparently, relator's notice of dismissal was prompted by a settlement
agreement effective November 20, 2015 between relator and STRS. The settlement
agreement provides in part:
STRS will reopen the appeal of Showman's disability benefits
denial to the STRS Board for its consideration. That
reopening will consist of providing all of the materials
provided to STRS by Showman's counsel in correspondence
dated May 12, 2015, to the examining physician Marjorie
Gallagher, M.D. for review. Dr. Gallagher will have the
No. 16AP-202 16
option of offering comments to affirm her initial evaluation,
to change her initial evaluation, or to recommend
reevaluation. The Chair of the Medical Review Board will
review the materials submitted by counsel and any
information or opinion offered by Dr. Gallagher and make a
recommendation to the STRS Board. The STRS Board will
then reopen the record of Showman's appeal hearing to
accept the information and make a determination regarding
the appeal of the denial of disability benefits. The Board's
decision will be based upon the materials submitted by
counsel, the information or opinion offered by Dr. Gallagher,
the recommendation of the Medical Review Board, and the
entirety of the record already before the Board. Showman
and her counsel will be notified of the Board's decision.
{¶ 35} 27. Pursuant to the settlement agreement, all of the medical evidence was
submitted to Dr. Gallagher for review.
{¶ 36} 28. On December 18, 2015, Dr. Gallagher issued a two-page narrative
report addressed to Dr. Metz. This third report from Dr. Gallagher states:
Records from Mary Brett, LISW-S, dated 11/14/14/ to
3/27/15, were reviewed. Ms. Brett indicates in a progress
note on 3/27/15 that Ms. Showman had fractured her hip
after a fall. She further indicates that Ms. Showman
continues to be depressed, but has improved. Ms. Showman
did not have suicidal ideation. Ms. Brett indicates that Ms.
Showman is struggling with self worth.
Medical records for Dublin Springs from 09/10/14 to
10/10/14 were reviewed. Ms. Showman had been admitted to
the Intensive Outpatient Program where she was diagnosed
with Major Depressive Disorder, Recurrent, Severe, without
Psychotic Features, Generalized Anxiety Disorder, and Panic
Disorder with Agoraphobia. It is noted on 10/3/14 that Ms.
Showman's depression was improving and that she was less
anxious.
Medical records from Donald DeShelter from 2/19/14 to
3/12/15 were reviewed. Dr. DeShelter indicates that Ms.
Showman had started having depression on 8/12/14 and
panic symptoms on 2/19/14. He notes on 10/6/14 that Ms.
Showman is anxious with a normal mood and affect. He did
not comment on any psychiatric issues in his note dated
3/12/15.
No. 16AP-202 17
Medical records from Dr. Megan Schabbing dated 7/31/14 to
2/23/15 were reviewed. In a progress note dated 2/4/15, Dr.
Schabbing indicates that Ms. Showman had had [sic] an
improvement in motivation and energy, but had had [sic]
minimal improvement in her severe recurrent major
depression with transcranial magnetic stimulation (TMS)
treatments. She indicates that Ms. Showman has a low
mood, hopelessness, passive death wishes, anxious and
tearful affect, and catastrophic thinking. Dr. Schabbing
indicates that Ms. Showman's nihilistic thinking borders on
psychosis. She recommended ECT. Dr. Schabbing also
indicated in a letter dated 2/23/15, that Ms. Showman had
completed a 36 treatment course of TMS and continued to
have "severe catastrophic and nihilistic thinking bordering
on psychosis" impairing her ability to function. Dr.
Schabbing is not specific about what the thinking is or what
possible psychotic symptoms Ms. Showman had reported.
No one else has elicited any psychotic thinking. There is no
diagnosis of any psychotic thinking in the medical records,
including Dr. Schabbing's diagnosis of Major Depressive
Disorder, Recurrent, Severe, 296.33 with no indication of
psychosis.
All of the additional medical information reviewed predated
the medical information that had been reviewed on 5/29/15,
that included Dr. Roylance's medical progress note dated
4/2/15. There is no mention of cognitive impairment in the
records or of psychosis.
After review of the additional information submitted on
appeal, there is no objective information provided that would
change my original opinion regarding Ms. Showman's
disability determination. It remains my opinion that Ms.
Showman is not permanently or presumed to be
permanently disabled.
{¶ 37} 29. On January 6, 2016, Dr. Metz issued an internal memorandum to the
STRS retirement board. The memorandum states:
At the June 2015 appeal, STRS Ohio received approximately
65 pages of supportive appeal information on behalf of Ms.
Showman's application for disability benefits. The
information had been reviewed by Dr. Gallagher and
members of the STRS Medical Review Board (MRB). An
additional 260+ pages of material was also submitted. This
information was reviewed by the Chair of the MRB and
deemed not to include new or compelling, medical
No. 16AP-202 18
information or information not available elsewhere in the
record. Therefore, it was not reviewed by Dr. Gallagher or
other members of the MRB. Dr. Gallagher was subsequently
provided access to this information and reported her
interpretation * * *. I have also reviewed all of this material
again.
{¶ 38} 30. On February 18, 2016, the STRS Disability Review Panel met to
reopen the matter to consider the additional documents.
{¶ 39} 31. On February 18, 2016, based on the conclusions of the Disability
Review Panel, the STRS retirement board voted to affirm its prior decision and to deny
relator's application for disability benefits.
{¶ 40} 32. On March 18, 2016, relator, Rebecca Showman, filed this mandamus
action.
Conclusions of Law:
{¶ 41} The main issue is whether the reports of Dr. Gallagher provided the STRS
retirement board with some evidence to support its denial of relator's application for
disability benefits.
{¶ 42} Finding that the reports of Dr. Gallagher provided the STRS retirement
board with some evidence to support its denial of the disability application, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
{¶ 43} Ohio Adm.Code 3307:1-7-01 currently provides:
(G) "Independent medical examiner" shall mean a
competent physician neither involved in a treatment
relationship with an applicant or recipient nor otherwise
employed by the retirement system, who shall be designated
by the chair of the medical review board to conduct an
impartial examination.
***
(I) "Medical review board" shall mean the group of
independent physicians designated by the retirement board
under the direction of a chair appointed by the retirement
board to assist in the evaluation of medical examinations and
information. The members of the medical review board may
be asked in panels of three or more to review any application
No. 16AP-202 19
and provide their conclusions as to whether an applicant will
be mentally or physically incapacitated from the
performance of duty for at least twelve months.
(J) A disabling condition shall be "presumed to be
permanent," if it physically or mentally incapacitates an
applicant from the performance of regular duty for a period
of at least twelve months from the date of the retirement
system's receipt of the completed application.
{¶ 44} Mandamus is the appropriate remedy when no statutory right of appeal is
available to correct an abuse of discretion by an administrative body such as the STRS
retirement board. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d
327, 2002-Ohio-2219, ¶ 14.
{¶ 45} The STRS retirement board abuses its discretion─and a clear right to
mandamus exists─if it enters an order that is not supported by some evidence. State ex
rel. Woodman v. Ohio Public Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-
3807, citing State ex rel. Nese v. State Teachers Retirement. Bd. of Ohio, 136 Ohio St.3d
103, 2013-Ohio-1777, ¶ 26.
{¶ 46} STRS has no clear legal duty cognizable in mandamus to specify what
evidence it relied on and to explain the reasoning for its retirement board's decision.
Pipoly at ¶ 22.
{¶ 47} In determining whether to grant an application for disability benefits, the
STRS retirement board is not required to give greater weight to the medical reports and
opinions of the applicant's treating physicians. Pipoly at ¶ 23-25. See State ex rel. Bell v.
Indus. Comm., 72 Ohio St.3d 575 (1995) (The Industrial Commission is not required to
give enhanced weight to the attending physician's report in determining whether to
award permanent total disability compensation).
{¶ 48} Pursuant to Ohio Adm.Code 3307:1-7-01(G), Dr. Gallagher was chosen by
the chair (Dr. Metz) of the MRB to serve as the independent medical examiner for
relator's application.
{¶ 49} Pursuant to Ohio Adm.Code 3301:1-7-01(I), Drs. Pariser, Hutzler, and
Friedman were chosen by Dr. Metz to serve as a panel of three from the MRB to assist in
the evaluation of medical examinations and information.
No. 16AP-202 20
{¶ 50} It can be noted that, as the independent medical examiner, Dr. Gallagher
was required to actually examine relator. However, Drs. Pariser, Hutzler, and Friedman
did not examine relator and were not authorized to do so.
{¶ 51} Dr. Gallagher issued three reports regarding relator's application.
Following a January 5, 2015 examination, Dr. Gallagher issued her first report in which
she opined that relator "is not permanently or presumed to be permanently disabled
based on psychiatric evaluation."
{¶ 52} Following the February 19, 2015 denial of her application, relator
administratively appealed the decision and submitted additional evidence in support of
the appeal.
{¶ 53} Relator's appeal prompted Dr. Metz to ask Dr. Gallagher to review
additional evidence submitted by relator and to issue a second report. On May 29, 2015,
Dr. Gallagher issued her second report in which she indicated that the opinion rendered
in her January 2015 report had not changed after reviewing the additional medical
evidence.
{¶ 54} Following the June 18, 2015 decision of the STRS retirement board to
affirm its prior decision and, thus, deny the application, relator filed in this court a
mandamus action that was subsequently dismissed because the parties entered into a
settlement agreement.
{¶ 55} Pursuant to the settlement agreement, all of the medical evidence
submitted by relator in support of her appeal was submitted to Dr. Gallagher for yet
another review. On December 18, 2015, Dr. Gallagher issued her third report in which
she indicated that her disability opinion contained in her first report had not changed
following her full review of all the medical evidence of record. There is no dispute here
that Dr. Gallagher was presented all the medical evidence of record and that she
reviewed that evidence.
{¶ 56} Here, relator alleges that Dr. Gallagher's first and second reports fail to
provide the some evidence to support the final decision of the STRS retirement board
because Dr. Gallagher did not have all the medical evidence of record before issuing the
first and second report. Be that as it may, it is clear that Dr. Gallagher's reporting was
No. 16AP-202 21
cured by submission of all medical evidence of record for another review and the
issuance of the third report on December 18, 2015.
{¶ 57} Here, relator challenges the reports of Dr. Gallagher by asserting "there is
simply no logical way to reconcile Dr. Gallagher's opinions that Relator does not suffer
from major depressive disorder and is not permanently disabled with the numerous
records of all of Relator's treating physicians." (Relator's Brief at 34.)
{¶ 58} Relator continues her argument: "Relator recognizes that Respondent can
obtain medical opinions from independent physicians, but it is unreasonable, arbitrary,
and unconscionable for respondent to rely upon a medical opinion that is so at odds
with the documented medical findings." (Relator's Brief at 34-35.)
{¶ 59} Relator's challenge to the reports of Dr. Gallagher fails to recognize that
the treating physicians do not determine whether relator is entitled to disability
retirement benefits. Rather, that determination, pursuant to R.C. 3307.62 is vested
solely in STRS. Pipoly at ¶ 24. Moreover, the reports of relator's treating physicians are
not entitled to greater weight simply because they are the reports of the treating
physicians. Pipoly at ¶ 23-25. Bell.
{¶ 60} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).