State ex rel. Smith v. Ohio Pub. Emps. Retirement Sys. ( 2016 )

[Cite as State ex rel. Smith v. Ohio Pub. Emps. Retirement Sys., 2016-Ohio-2731.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Donna J. Smith, :
Relator, :
v. : No. 14AP-1060
Ohio Public Employee[s] Retirement : (REGULAR CALENDAR)
System,
Respondent. :
D E C I S I O N
Rendered on April 28, 2016
On Brief: The Bainbridge Firm, LLC, and Carol L.
Herdman, for relator.
On Brief: Michael DeWine, Attorney General, John J.
Danish and Mary Therese Bridge, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
{¶ 1} Donna J. Smith filed this action in mandamus seeking a writ to compel the
Ohio Public Employees Retirement System ("OPERS") to grant her application for a
disability benefit.
{¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision includes a recommendation that we deny the request for a writ.
No. 14AP-1060 2
{¶ 3} Counsel for Donna Smith has filed objections to the magistrate's decision.
Counsel for OPERS has filed a memorandum in response. The case is now before the
court for a full independent review.
{¶ 4} Donna Smith was a licensed practical nurse at Gallipolis Development
Center. She was attacked by a client at the development center. She claims neck and arm
pain following the attack. A few months later, her employment ended. Two years later,
she applied for disability benefits.
{¶ 5} As a result of the filing of the application, she was referred for an
independent medical evaluation by Arthur L. Hughes, M.D. Dr. Hughes issued a report
which indicated that he saw no objective evidence to support Smith's claims of neck and
arm pain. Dr. Hughes' report presents the main point of contention at this point
according to counsel for Smith.
{¶ 6} Other medical practitioners also reviewed the medical and psychiatric
condition of Donna Smith and concluded that she was not entitled to a disability benefit.
{¶ 7} If some evidence supports the decision of the OPERS board, then we are
supposed to leave that decision in place. See State ex rel. Marchians v. School Emp. Ret.
Sys., 121 Ohio St.3d 139, 2009-Ohio-307, for the standard in a similar retirement system.
{¶ 8} Dr. Hughes acknowledged the existence of neck and arm pain in Donna
Smith, but claims at one point in his report that he could not find an objective basis for it.
He views Smith's claim of pain as not being disabling as of the date of his examination. At
the same time, he reported that he found an absence of left triceps reflex and diminished
sensation of the left third and fourth fingers. These findings could be deemed to be
objective indications of nerve abnormalities, making the report of Dr. Hughes possibly
ambivalent.
{¶ 9} The findings of Dr. Hughes with respect to diminished sensation in the left
third and fourth fingers could reasonably be viewed as evidence of numbness, not of pain.
{¶ 10} Without further explanations from a medical professional, we cannot say
the absence of a left triceps reflex is an objective demonstration of pain, as opposed to
other nerve responses.
No. 14AP-1060 3
{¶ 11} Reports submitted to OPERS also indicate that Smith was suffering from
depression and anxiety. The reports conflicted as to whether these emotional problems
were work disabling.
{¶ 12} Our magistrate viewed the report of Dr. Hughes as flawed, but not so flawed
as to remove it from all evidentiary consideration. We agree, as discussed above.
{¶ 13} As noted earlier, if some evidence supports the decision of OPERS, we are
not permitted to overturn it. The evidence as to psychological disability was clearly
contradictory. OPERS was clearly at liberty to chose among the conflicting conclusions as
to a disability based upon psychological conditions.
{¶ 14} As to physical disability, evidence existed to support the ultimate finding by
OPERS.
{¶ 15} As a result of the above, we overrule the objections to the magistrate's
decision. We adopt the findings of fact and conclusions of law in the magistrate's decision
and deny the request for a writ of mandamus.
Objections overruled; writ denied.
BROWN and KLATT, JJ., concur.
No. 14AP-1060 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Donna J. Smith, :
Relator, :
v. : No. 14AP-1060
Ohio Public Employee[s] Retirement : (REGULAR CALENDAR)
System,
Respondent. :
MAGISTRATE'S DECISION
Rendered on February 18, 2016
The Bainbridge Firm, LLC, Carol L. Herdman, Andrew J.
Bainbridge, Christopher J. Yeager and Zachary L.
Tidaback, for relator.
Michael DeWine, Attorney General, John J. Danish and
Mary Therese Bridge, for respondent.
IN MANDAMUS
{¶ 16} In this original action, relator, Donna J. Smith, requests a writ of
mandamus ordering respondent, Ohio Public Employees Retirement System ("OPERS"),
to vacate its September 17, 2014 decision denying relator's application for a disability
benefit, and to enter a decision granting a disability benefit.
Findings of Fact:
{¶ 17} 1. On April 19, 2008, while employed as a licensed practical nurse ("LPN"),
at the Gallipolis Development Center, relator was attacked by a client while sitting at her
desk. The client grabbed her hair and pulled her to the floor. Relator continued working
but complained of neck and arm pain after the incident.
No. 14AP-1060 5
{¶ 18} 2. Effective September 30, 2011, relator was involuntarily separated from
her employment at the Gallipolis Development Center. The employer stated that the
reason for the separation is that relator: "is unable to perform the essential job duties of
his/her position due to a disabling illness, injury or condition."
{¶ 19} 3. On June 27, 2013, relator filed a disability benefit application on a form
provided by OPERS.
{¶ 20} 4. On her application, relator stated that she has daily neck pain that
radiates into her left arm, that her left arm is weak, and she has difficulty lifting even a
gallon of milk. She has trouble gripping and will drop things. She has numbness in the
fingers on her left hand. She is left hand dominant. She cannot grip pills and other small
things with her left hand. Relator further stated that she suffers from depression and
anxiety. She fears returning to work. She does not sleep well and has trouble
concentrating.
{¶ 21} 5. Earlier, on May 2, 2013, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by James R. Hawkins, M.D., who
specializes in psychiatry and neurology. In his nine-page narrative report dated May 9,
2013, Dr. Hawkins noted that relator was seeking an additional claim allowance for an
April 19, 2008 industrial injury. Dr. Hawkins diagnosed: "Depressive Disorder NOS" and
"Generalized Anxiety Disorder." He opined that the workplace injury of April 19, 2008
caused the psychiatric conditions.
{¶ 22} 6. On November 13, 2013, at the request of OPERS, relator was examined
by Arthur L. Hughes, M.D., who specializes in neurology. In his five-page narrative report
dated November 15, 2013, Dr. Hughes states:
HISTORY AS DESCRIBED BY MS. SMITH:
***
She is not receiving treatment now, aside from massage
therapy. She continues to have neck pain, extending into the
head and down the left arm, into the hand. She continues to
have neck pain, extending into the head and down the left
arm, in to the hand. The fingers tingle if the temperature is
less than 50 degrees. The left third and fourth fingers are
numb. She drops things with the left hand. She has neck pain
when she sneezes. She believes that she is getting worse.
No. 14AP-1060 6
***
PHYSICAL EXAMINATION:
On examination today she is a depressed appearing,
intermittently tearful lady, who is 5'9" tall, weighing 185
pounds. She is left handed. She can flex the neck to 40◦,
extend to 40◦, laterally bend to the right 15◦ and to the left
25◦ and she can rotate to the right 25◦ and to the left 40◦.
Spurling's sign is negative bilaterally. Muscle strength is
normal in the upper and lower extremities. Biceps reflexes
are 1+, triceps reflexes are 2+ on the right and absent on the
left. Knee and ankle reflexes are 1+ and the plantar responses
are flexor. There is diminished light touch sensation affecting
the left third and fourth fingers on the ulnar aspect of the
forearm. Her gait is unremarkable.
REVIEW OF MEDICAL RECORDS:
All information provided in the disability claim file was
reviewed and considered for this report, including the
following:
***
X-rays of the cervical spine show no abnormality and the
dorsal spine shows mild, degenerative osteoarthritis and the
lumbar spine, same date shows mild, degenerative
osteoarthritis.
MRI scan of the cervical spine, 12/28/09 shows a tiny
protrusion C2-3 and C4-5, small protrusion at C3-4.
EMG of the upper extremities, 9/22/10 shows mild, chronic
denervation in the left deltoid and supraspinatus muscles.
EMG of the upper extremities, 9/29/11 is normal.
A cervical MRI 7/1/11 shows small protrusion at C4-5 and
C5-6 and disc desiccation and degeneration at C2-3, C3-4,
C4-5 and C5-6.
***
An EMG of the upper extremities, 12/11/12 is normal.
No. 14AP-1060 7
***
An MRI scan of the left shoulder, 1/4/13, shows rotator cuff
tendinosis of the supraspinatus and infraspinatus tendons
with partial bursal surface tear.
***
OPINIONS AND COMMENTS:
Ms. Smith experienced a neck injury on 4/19/08 and
continued working with pain in the neck and left arm until
7/28/11. The cause of her pain has been uncertain, as has
been described by her physicians. The pain was thought to be
radicular, but possible reflex sympathetic dystrophy has also
been discussed. Her physicians have not described any of the
typical findings in reflex sympathetic dystrophy, however.
She has become depressed. Her examination today discloses
no typical manifestations of reflex sympathetic dystrophy,
including color change, temperature change, atrophy of skin
and nails, change in hair, pain, and restricted range of
motion of associated joints and allodynia.
The findings on multiple MRI scans are of an ordinary age-
related nature and on the two most recent EMGs were
negative. The cause of her ongoing neck and left arm pain is
unclear in so far as history and physical findings, MRI
imaging and electromygraphical studies are concerned.
Nonetheless, she has continued to have pain, which has
restricted her daily activities.
OPERS DEFINITION OF PERMANENT DISABILITY
Mentally or physically incapacitated for the performance of
duty, in claimant's own occupation, by a disabling conditions
[sic], either permanent or presumed permanent. A disability
is presumed to be permanent if it is expected to last for a
continuous period of at least twelve months.
Issue #1: Per OPERS definition of permanent disability
(defined above), is the claimant presumably disabled for the
performance of her own occupation as a public employee,
Licensed Practical Nurse?
Response: I have reviewed the OPERS definition of
permanent disability, and although she has had prolonged
neck and left arm pain, as there are no objective
No. 14AP-1060 8
abnormalities, she cannot be considered permanently
disabled for the performance of her occupation as a licensed
practical nurse. The examination revealed only her self-
reported symptoms; there are no confirmatory abnormalities
on test results noted in the records or in the office notes of
Dr. Bansal.
Issue #2: Do you anticipate a clinically significant change in
the claimant's disabling condition within the next twelve
months?
Response: Based on my examination, and the medical notes
reviewed, I do not anticipate a clinically significant change in
the patient's condition within the next 12 months.
Issue #3: What is the claimant's current disabling diagnosis?
Response: The claimant's current diagnosis is neck and left
arm pain of uncertain cause. However the diagnosis is not
disabling at this time.
Issue #4: If there is objective medical evidence to support
disability, please comment on expected treatment, duration
and prognosis.
Response: There is no objective medical evidence to support
disability. The diagnosis is based on the patient's self-
reported complaints of neck and left arm pain, which have
been consistent over an extended period of time. Treatment
at this point is symptomatic and could include non-narcotic
medication, physical therapy and self-directed neck exercise.
Due to the extended time that she has had the neck and left
arm complaints, and the medical history via her physicians,
her prognosis is poor for improvement.
***
Issue #6: Do the claimant's subjective complaints/symptoms
correlate with your objective clinical findings?
Response: The claimant's subjective complaints and
symptoms correlate with my objective, clinical findings
(absence of left triceps reflex and diminished sensation of the
left third and fourth fingers).
No. 14AP-1060 9
{¶ 23} 7. The report of Dr. Hughes as well as other information contained in the
OPERS disability claim file was reviewed by the Managed Medical Review Organization
("MMRO") at the request of OPERS. On December 5, 2013, MMRO issued a report
recommending denial of the requested disability benefits.
{¶ 24} 8. On December 10, 2013, OPERS medical advisor, Maurice Mast, M.D.,
reviewed the MMRO recommendation. He recommended that relator's disability
application be denied.
{¶ 25} 9. At the December 18, 2013 meeting, the OPERS board voted to deny the
disability application.
{¶ 26} 10. By letter dated December 19, 2013, OPERS notified relator that the
OPERS board had denied her disability benefit application.
{¶ 27} 11. Also by letter dated December 19, 2013, OPERS informed relator that
she had the right to appeal the board's denial of her application. The letter informed
relator that the appeal should be supported by "additional objective medical evidence, at
your expense."
{¶ 28} 12. On January 3, 2014, relator, through counsel, submitted an OPERS
"Disability Benefits Appeal Request Form."
{¶ 29} 13. In support of her appeal, relator's counsel submitted a three-page letter
dated April 10, 2014 that discusses the medical evidence of record supporting the
application.
{¶ 30} 14. On February 11, 2014, at relator's own request, she was evaluated by
psychologist, Scott Lewis Donaldson, Ph.D. In his eight-page narrative report, Dr.
Donaldson opines:
Based upon Ms. Smith's emotional status as well as
psychological components of chronic pain and orthopedic
limitations, in this examiner's opinion, it is unrealistic to
presume that she will return to her former position as an
LPN at the Gallipolis Developmental Center. Once symptoms
of Ms. Smith's depressive and anxiety disorders have been
ameliorated, gainful employment in a setting that does not
pose a significant risk to her safety and well-being may be a
consideration.
No. 14AP-1060 10
{¶ 31} 15. On July 10, 2014, at the request of OPERS, relator was examined by Dr.
Hawkins, who had previously examined on May 2, 2013, at the request of the bureau. In
his 11-page narrative report dated July 21, 2014, Dr. Hawkins states:
On examination, she presented as mildly depressed and
anxious, but with very little psychomotor retardation, in fact,
she became more animated as the interview progressed.
There were no memory impairments. I did feel she was
exaggerating her symptoms, and in fact, gave approximate
answers to the questions of recalling three objects at three
minutes and spelling WORLD backwards.
Functionally, she is living at home and reports not doing
much in the way of household chores. She has developed a
sedentary life. She can get out some, but is reporting that she
is anxious frequently. She does continue to pay the
household bills, enjoys reading, attends church and watches
TV.
In short, she has mild depressive and anxiety symptoms that
do not appear to be work prohibiting.
(Emphasis sic.)
{¶ 32} 16. In his report dated July 21, 2014, Dr. Hawkins answers questions posed
by OPERS:
[One] Per OPERS definition of permanent disability
(defined above), is claimant presumably
permanently disabled for the performance of their
[sic] own occupation as a public employee, Licensed
Practical Nurse? If yes, please provide supporting
rationale.
Based on my examination findings and review of the medical
records, Ms. Smith does meet DSM-IV criteria for depressive
disorder NOS and an anxiety disorder NOS. Both of these
conditions are mild in nature and are not work prohibitive.
In my opinion the claimant is not presumably permanently
disabled for the performance of her own occupation as a
public employee. There is no indication that her emotional
condition would preclude her from passing medication,
teaching about medications and providing appropriate
documentation.
***
No. 14AP-1060 11
[Four] What is the claimant's current disabling
diagnosis(es)? If none exists, please indicate in your
response.
At this time I do not find any disabling diagnoses.
***
[Seven] Do the claimant's subjective
complaints/symptoms correlate with your objective
clinical findings? If no, please explain.
Subjectively, she is complaining of severe anxiety and
depression. Objectively, she tended to exaggerate her
symptoms. Symptoms of anxiety and depression were mild
in nature. They do not preclude her from working.
[Eight] Do your observed activities/behavior of the
claimant correlate with your objective clinical
findings? If no, please explain.
I observed her to be mildly anxious and tearful during the
interview. Objectively, she tended to exaggerate her
symptoms. From a functional standpoint, her psychological
symptoms are not impairing.
{¶ 33} 17. On July 24, 2014, at the request of OPERS, relator was examined by
Eugene Lin, M.D., who specializes in physical medicine and rehabilitation. In his eight-
page narrative report, Dr. Lin states:
HISTORY OF PRESENT CONDITION: The claimant
reports diffuse pain complaints. These pain complaints
involve the neck with pain currently radiating down the
right arm. She states numbness and tingling in both upper
extremities and both lower extremities. She reports
decreased grip strength in the bilateral hands. She also
reports back pain and left lower extremity pain.
She attributes these pain complaints to an event that
occurred on 04/19/2008. On this date, a client grabbed her
hair and they both fell to the ground. She reported neck pain
and shoulder tightness on the left side (opposite side to her
current complaints) as well as reporting bilateral abrasions
of the knee.
No. 14AP-1060 12
The claimant has had treatment with Dr. Karr for a Workers'
Compensation claim, Dr. Towpenny for general medical
follow-up and multiple specialty consultations. She has had
multiple electrodiagnostic studies, which initially stated mild
chronic findings suggested of a left C5-6 radiculopathy in
2010. However, repeat EMGs after that date show that the
left C5-6 radiculopathy had resolved.
The claimant has had multiple imaging studies of the cervical
spine, lumbar spine, and left shoulder. These MRIs were all
stated to show diffuse nonfocal degenerative changes.
The multiple physical examinations, within the medical
record, show no consistent focal findings attributable to a
cervical or lumbar radiculopathy. * * *
PHYSICAL EXAMINATION: The claimant is in no acute
distress. She is cooperative during the interview and physical
examination. The claimant has a compression sleeve on her
right upper extremity. She gestured freely with her left upper
extremity.
She has good sitting tolerance. She has good transfers from
sitting to standing. She is able to go from lying to sitting with
a sit-up maneuver. She has normal gait with good heel-to-toe
motion.
Manual muscle testing shows give-way weakness over
bilateral lower extremities and bilateral upper extremities
incompatible with the claimant's ability to adjust to carry a
large purse in her left hand and ambulate.
Range of motion of the neck shows self-restricted range of
motion. There is 50 degrees of extension, 60 degrees of
forward flexion, and 40 degrees of side bending. Please note,
that these ranges of motion are decreased compared with
observed range of motion during the interview. During the
interview, she has full and unrestricted range of motion that
appeared pain-free and smooth.
There is tenderness to palpation diffusely over the right neck
and shoulder that did not change between light and deep
palpation. Spurling's sign is negative for radicular symptoms.
There is decreased range of motion of the right shoulder with
90 degrees of forward flexion and abduction. Left shoulder
shows 130 degrees of forward flexion and 90 degrees of
No. 14AP-1060 13
forward flexion and abduction. Left shoulder shows 130
degrees of forward flexion and 0 degrees of abduction. Range
of motion of the shoulders show improvement to 150 degrees
of flexion and abduction on the left with retry. Please note,
that the claimant has significantly better range of motion in
both shoulders during the interview process and the
claimant is able to tolerate carrying a large purse with her
left upper extremity as she left the interview.
Range of motion of the lumbar spine shows 90 degrees of
forward flexion, 30 degrees of side bending and 40 degrees
of extension. There is no tenderness to palpation over the
lumbar spine. Straight leg raises are bilaterally negative.
Please note, that there are multiple signs of symptom
magnification and inconsistency of physical findings on this
examination. These would include self-restriction to range of
motion of the neck and shoulder inconsistent with ranges of
motion observed in interview. There is diffuse give-way
weakness over bilateral lower extremities and upper
extremities inconsistent with the claimant's ability to
ambulate and carry the objects that she brought into the
examination. There are diffuse regional complaints of pain
over the entire body (the claimant had put cross marks over
the entire upper half of the pain chart as well as both knees
and both feet).
Please also note, that the claimant's current subjective
complaints and self-restriction in range of motion are
predominantly of the right upper extremity. This is not
consistent with the medical records, which stated subjective
complaints predominantly over the left upper extremity.
MEDICAL RECORDS REVIEWED: All information
provided in the disability claim file was reviewed.
***
X-ray of the lumbar spine 08/08/2008. This showed mild
degenerative arthritis of the thoracic spine. There was mild
degenerative osteoarthritis of the lumbar spine and
spondylolysis at L5.
12/28/2009, MRI of the cervical spine. This showed a tiny
disc protrusion at C2-3 and C4-5. At C3-4 and C5-6, there is
a small disc protrusion. At C5-6, there was a tiny disc
protrusion with leftward predominance.
No. 14AP-1060 14
MRI of the lumbar spine dated 12/29/2009. This showed no
disc bulge or herniation. There is dehydration of
intervertebral discs diffusely. There was no evidence of
lumbar canal stenosis or foraminal stenosis.
X-ray of the left forearm dated 11/19/2010. This was an
unremarkable study.
09/22/2010, EMG with Dr. Lewis. Dr. Lewis stated there
were mild chronic changes over the left deltoid and left
supraspinatus muscle. These were suggestive of a chronic left
C5-6 radiculopathy. There were no pathological changes in
the nerve conduction study of the right upper extremity.
There was no EMG of the right upper extremity.
07/01/2011, MRI of the cervical spine. This showed small
central disc protrusion at C4-5 and C5-6 with mild canal
impingement and no significant foraminal narrowing. There
was disc desiccation diffusely from C2 through C6.
***
09/29/2011, EMG with Dr. Bradford: Dr. Bradford
performed a study of the left upper extremity. Dr. Bradford
stated that there was no evidence of electrodiagnostic
pathology on either the nerve conduction study or the needle
EMG.
***
On 09/19/2012, there was an MRI of the brain. This showed
no intracranial pathology.
12/11/2012 electrodiagnostic study with Dr. Ferimer. Dr.
Ferimer performed a bilateral nerve conduction study. This
study was normal he performed an EMG (needle study) of
left upper extremity. This was also normal.
***
01/04/2013, MRI of the left shoulder. This showed rotator
cuff tendinosis (chronic tendinopathic changes) over the
supraspinatus and infraspinatus. There is a partial-thickness
surface tear of the distal fibrous of the supraspinatus. This
was read as a small tear.
No. 14AP-1060 15
***
CONCLUSIONS: Ms. Smith is a 44-year-old left hand
dominant female. Currently, she reports diffuse pain
complaints over the entire upper half of her body, as well as
bilateral knees and bilateral ankles. Her subjective
complaints are out of proportion with her objective findings
both on my current examination and within the medical
records. It is also important to note that the medical record
predominantly shows left upper extremity symptoms, while
the claimant's current presentation showed predominantly
right upper extremity findings. This would be an inconsistent
presentation.
Please also note, that there were multiple signs of symptom
magnification on her physical examination.
Alleged conditions of permanent disability, displaced
cervical disc, left arm pain, neck pain, left leg weakness, left
arm weakness, anxiety. Ineligible diagnoses abrasion
hip/leg, sprain/strain neck.
[One] Per OPERS definition of permanent disability, is the
claimant presumably permanently disabled from the
performance of her own occupation as the public employee,
licensed practical nurse? If yes, please provide supporting
rationale.
There is insufficient objective evidence to state that the
claimant would be permanently disabled from performance
of her own occupation as a public employee (licensed
practical nurse). Review of the medical records showed
diffuse subjective complaints regarding the neck and left
upper extremity, which were not consistent with her current
subjective presentation (neck and right upper extremity
complaints). In addition, there were multiple
electrodiagnostic studies, which showed no electrodiagnostic
evidence of central or peripheral neuropathic conditions.
Multiple imaging studies, which showed no significant focal
musculoskeletal or discogenic pathologies and physical
examination, which showed diffuse findings. In fact, her
treating physicians had stated that they were unable to
definitively state the causes of her subjective complaints.
Thus, there is insufficient evidence that the claimant meets
the OPERS definition of permanent disability.
No. 14AP-1060 16
[Two] Do you anticipate a clinically significant change in the
claimant's disabling conditions within the next 12 months?
Currently, the claimant has multiple inconsistent subjective
complaints of pain (the medical records state that her
complaints were predominantly left-sided; however current
presentation states the findings were right-sided). The
claimant has evidence of symptom magnification and
inconsistent physical examination. I do not expect a change
in the claimant's subjective complaints within the next 12
months.
[Three] What are the claimant's current disabling diagnoses?
There is insufficient evidence, within the medical record, to
support any condition as being disabling. Please note that
the claimant has multiple subjective complaints, nonfocal
inconsistent objective physical examination findings, and
multiple signs of symptom magnification.
***
[Six] Do the claimant's subjective complaints/symptoms
correlate with her objective clinical findings?
No, the claimant's subjective complaints are out of
proportion with her objective clinical findings. Her physical
examination showed inconsistent ranges of motion between
her observed ranges of motion during interview versus those
of direct physical examination. Her current subjective
complaints are contralateral (opposite) with those within the
medical records. Thus, the claimant's subjective
complaints/symptoms do not correlate with objective clinical
findings.
[Seven] Do you observe activities/behavior of the claimant
that correlate with their objective clinical findings?
No, the claimant's observed activities do not correlate with
her self-restriction in range of motion and diffuse pain
complaints, as well as generalized weakness observed on
direct physical examination. The claimant was observed
carrying a large purse with her left upper extremity. She had
smooth range of motion of her neck during the interview
process. She was able to gesture freely with her left upper
extremity without restrictions. She was able to lateral flex
and lean to the right side to move her purse from the right
No. 14AP-1060 17
side to left side with her right and left hands. She was able to
fully abduct her left upper extremity x 2 to move her hair out
of the way to examine them, so that the neck was able to be
examined.
(Emphasis sic.)
{¶ 34} 18. On August 7, 2014, MMRO issued a report indicating that the July 10,
2014 report of Dr. Hawkins and the July 24, 2014 report of Dr. Lin had been reviewed.
{¶ 35} 19. MMRO recommended to OPERS that relator's application for a
disability benefit be denied.
{¶ 36} 20. On August 19, 2014, OPERS medical advisor, Andrew Smith, M.D.,
recommended denial of relator's application for a disability benefit.
{¶ 37} 21. At its September 17, 2014 meeting, the OPERS board voted to uphold its
prior denial of relator's application.
{¶ 38} 22. On December 23, 2014, relator, Donna J. Smith, filed this mandamus
action.
Conclusions of Law:
{¶ 39} In her brief, under "Statement of the Issues Presented," relator sets forth
three issues:
Did the Ohio Public Employees Retirement System Board act
unreasonably by ignoring objective medical findings that
demonstrate that Donna J. Smith suffers from physical
conditions that contribute to her disability?
Did the Ohio Public Employee [sic] Retirement System
Board act unreasonably by determining that Ms. Smith is not
disabled, when in fact, her own employer has deemed her
unable to perform her job functions?
Did the Ohio Public Employee [sic] Retirement System
Board act unreasonably by relying upon the inconsistent
medical reports of Dr. Hawkins?
(Relator's Brief, 4.)
{¶ 40} " '[M]andamus is an appropriate remedy where no statutory right of appeal
is available to correct an abuse of discretion by an administrative body.' " State ex rel.
Cydrus v. Ohio Public Emps. Retirements Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12,
No. 14AP-1060 18
quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-
Ohio-2219, ¶ 14.
{¶ 41} A clear legal right to a writ of mandamus exists when an agency is found to
have abused its discretion by entering a decision that is not supported by some evidence.
State ex rel. Schaengold v. Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-
3760, ¶ 19; State ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139,
2009-Ohio-307, ¶ 20-21; Kinsey v. Bd. of Trustees of Police & Firemen's Disability &
Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990).
{¶ 42} Because there is no statutory provision that it do so, OPERS is not required
to provide an explanation for its decision or cite to the evidence that supports its decision.
Cydrus at ¶ 17. The lack of such statutory provision does not violate Ohio's separation-of-
powers doctrine. Id. at ¶ 22-24. Also, the benefit recipient is not denied procedural due
process when OPERS fails to identify the evidence it relied upon and to briefly explain its
reasons for terminating the disability benefit. Id. at ¶ 25-27. Preliminarily, it can be
observed that, with its December 18, 2013 initial decision and its September 17, 2014 final
decision, the board chose not to specifically cite to the medical evidence supporting its
decisions.
{¶ 43} However, immediately prior to its December 18, 2013 decision, at the
request of OPERS, relator was examined by Dr. Hughes on November 13, 2013. In his
five-page narrative report, Dr. Hughes opines that relator "cannot be considered
permanently disabled for the performance of her occupation as a licensed practical
nurse."
{¶ 44} As earlier noted, citing Dr. Hughes report, OPERS medical advisor, Dr.
Mast, recommended that relator's application for a disability benefit be denied. Thus,
reliance upon Dr. Hughes' report can be inferred.
{¶ 45} Thereafter, on February 11, 2014, at relator's own request, she was evaluated
by psychologist, Dr. Donaldson, who issued a report in which he opined: "it is unrealistic
to presume that she will return to her former position as an LPN at the Gallipolis
Developmental Center."
{¶ 46} Submitting Dr. Donaldson's report, relator administratively appealed the
board's December 18, 2013 decision.
No. 14AP-1060 19
{¶ 47} On July 10, 2014, at the request of OPERS, relator was examined by
psychiatrist, Dr. Hawkins, who had previously examined on May 2, 2013, at the request of
the bureau. In his 11-page narrative report dated July 21, 2014, Dr. Hawkins states:
{¶ 48} "[s]ymptoms of anxiety and depression were mild in nature. They do not
preclude her from working." He also opined "claimant is not presumably permanently
disabled for the performance of her own occupation as a public employee."
{¶ 49} On July 24, 2014, at the request of OPERS, relator was examined by Dr. Lin
who opined: "[t]here is insufficient evidence that the claimant meets the OPERS
definition of permanent disability."
{¶ 50} On August 19, 2014, OPERS medical advisor, Dr. Smith, recommended that
the board uphold its previous denial of the application. At its September 17, 2014
meeting, the OPERS board voted to uphold its prior denial of the application.
{¶ 51} Based upon the above-described scenario, the board's reliance upon the
July 10, 2014 report of Dr. Hawkins and the July 24, 2014 report of Dr. Lin is also
inferred.
{¶ 52} In short, the board relied upon three reports, i.e., the reports of Drs.
Hughes, Hawkins, and Lin.
{¶ 53} Here, relator argues for the evidentiary elimination of all three reports. It
can be noted, however, that Dr. Hughes and Dr. Lin each examined for the physical
conditions of the disability claim. Therefore, evidentiary elimination of Dr. Hughes'
report does not necessarily require this court to issue a writ of mandamus.
Dr. Hughes' Report
{¶ 54} As earlier noted, in her brief, under "Statement of the Issues Presented,"
relator sets forth three issues. The first issue asks whether OPERS acted "unreasonably
by ignoring objective medical findings that demonstrate that [relator] suffers from
physical conditions that contribute to her disability?" (Relator's Brief, 4.) Thus, relator
asks for the evidentiary elimination of the reports of Drs. Hughes and Lin. Her brief
states:
In the instant matter, Dr. Hughes reviewed the diagnostic
reports, recorded the abnormal findings, and acknowledged
that his examination produced objective clinical findings
consistent with these diagnoses, except for an absence of left
No. 14AP-1060 20
triceps reflex and diminished sensation of the left third and
fourth fingers. * * * Then, contrary to his own prior
statements, Dr. Hughes opined that Relator suffered from
"no objective abnormalities" with respect to her prolonged
neck and arm pain. * * * Dr. Hughes went on to opine that,
based on this lack of objective abnormality, Relator is not
permanently disabled. This finding is wholly inconsistent
with not only all of the medical reports of other treating
physicians within the file, but with Dr. Hughes' own exam
findings. Dr. Lin's reports suffers the same flaw as Dr.
Hughes' report.
(Relator's Brief, 15.)
{¶ 55} In the context of workers' compensation cases, equivocal medical opinions
are not evidence. State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657 (1994).
Equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or
uncertain opinions, or fails to clarify an ambiguous statement. Id. Ambiguous
statements, however, are considered equivocal only while they are unclarified. Id.{¶ 56} Moreover, it has been repeatedly held that a physician's report can be so
internally inconsistent that it cannot be some evidence supporting the commission's
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St.3d 445 (1994); State ex rel.
Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
{¶ 57} However, in mandamus, courts will not second guess the medical expertise
of the doctor whose report is under review. State ex rel. Young v. Indus. Comm., 79 Ohio
St.3d 484 (1997).
{¶ 58} The evaluation of the weight and credibility of the evidence before it rests
exclusively with the commission. State ex rel. Thomas v. Indus. Comm., 42 Ohio St.3d 31,
33 (1989), citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
{¶ 59} Review of medical reports under the Eberhardt standard has been
undertaken by the Supreme Court of Ohio and by this court in mandamus cases involving
other retirement systems. Marchiano at ¶ 34; State ex rel. Riddell v. State Teachers
Retirement Bd., 10th Dist. No. 13AP-660, 2014-Ohio-1646, ¶ 22; State ex rel. Worthy v.
Ohio State Hwy. Patrol Retirement System, 10th Dist. No. 07AP-507, 2008-Ohio-2462, ¶
74.
No. 14AP-1060 21
{¶ 60} Presumably, this court may also apply the standard set forth in Lopez,
Taylor, and Young in reviewing medical reports involving OPERS.
{¶ 61} In his report, under the paragraph captioned "Physical Examination," Dr.
Hughes reports that "triceps reflexes are * * * absent on the left."
{¶ 62} Also under the paragraph captioned "Physical Examination," Dr. Hughes
reports "diminished light touch sensation affecting the left third and fourth fingers on the
ulnar aspect of the forearm."
{¶ 63} Under "Review of Medical Records," Dr. Hughes lists and briefly describes
seven imaging studies (x-rays, EMG, MRI) that can arguably be called, in the words of
relator, "objective clinical findings." (Relator's Brief, 15.)
{¶ 64} While the September 29, 2011 and December 11, 2012 EMGs of the upper
extremities were reported to be normal, the remaining five imaging studies are not
reported to be normal. For example, the January 4, 2013 MRI of the left shoulder
indicated "rotator cuff tendinosis" and a "partial bursal tear."
{¶ 65} Regardless of whether a doctor may conclude that the imaging studies do
not compel the conclusion that relator is disabled from her former employment as an
LPN, it is difficult for this magistrate to agree with Dr. Hughes' statement "as there are no
objective abnormalities." Certainly, for example, "rotator cuff tear tendinosis" and a
"partial bursal tear" are not normal. Likewise, it is difficult for this magistrate to accept
the notion that the "small protrusion at C4-5 and C5-6 and disc desiccation and
degeneration at C2-3, C3-4, C4-5 and C5-6" is a normal finding.
{¶ 66} Moreover, in his response to "Issue #6" in his report, Dr. Hughes states:
The claimant's subjective complaints and symptoms
correlate with my objective, clinical findings (absence of left
triceps reflex and diminished sensation of the left third and
fourth fingers).
{¶ 67} In short, according to Dr. Hughes, the claimant's subjective complaints and
symptoms correlate with some of his clinical findings but not all of his clinical findings.
{¶ 68} In its brief, OPERS points to other statements made by Dr. Hughes as
quoted by OPERS here:
Dr. Hughes noted that some of Smith's subjective complaints
correlated with his objective clinical findings. * * * However,
No. 14AP-1060 22
Dr. Hughes did not find that these impairments rose to the
level of a disability. Dr. Hughes stated, "[t]here is no
objective medical evidence to support disability. The
diagnosis is based on the patient's self-reported complaints
of neck and left arm pain, which have been consistent over
an extended period of time. * * * Dr. Hughes stated, "[t]he
cause of her pain has been uncertain, as has been described
by her physicians … The cause of her ongoing neck and left
arm pain is unclear in so far as history and physical findings,
MRI imaging and electromygraphical studies are concerned."
* * * Dr. Hughes wrote, "[t]he claimant's current diagnosis is
neck and left arm pain of uncertain cause. However the
diagnosis is not disabling at this time." * * *
(Respondent's Brief, 5-6.)
{¶ 69} In the magistrate's view, taken in the context of the entire report, even if Dr.
Hughes' single statement "as there are no objective abnormalities" can be viewed as
inconsistent, the error is not fatal. Clearly, not every perceived flaw in a medical report is
grounds to eliminate the report from evidentiary consideration. State ex rel. Warnock v.
Indus. Comm., 100 Ohio St.3d 34, 2003-Ohio-4833.
{¶ 70} The magistrate finds that the following discussion in the Eberhardt case is
applicable here:
[E]quivocation occurs when a doctor repudiates an earlier
opinion, renders contradictory or uncertain opinions, or fails
to clarify an ambiguous statement.
***
[A]mbiguous statements are inherently different from those
that are repudiated, contradictory or uncertain. Repudiated,
contradictory or uncertain statements reveal that the doctor
is not sure what he means and, therefore, they are inherently
unreliable. Such statements relate to the doctor's position on
a critical issue. Ambiguous statements, however, merely
reveal that the doctor did not effectively convey what he
meant and, therefore, they are not inherently unreliable.
Such statements do not relate to the doctor's position, but to
his communication skills.
Id. at 657.
No. 14AP-1060 23
{¶ 71} Accordingly, the magistrate concludes that relator has failed to show that
the report of Dr. Hughes must be removed from evidentiary consideration.
Dr. Lin's Report
{¶ 72} In her brief, relator asserts: "Dr. Lin's report suffers the same flaw as Dr.
Hughes' report." (Relator's Brief, 15.) Beyond that simple assertion, no argument is
presented as to why this court must conclude that the report of Dr. Lin must be removed
from evidentiary consideration.
{¶ 73} Loc.R. 13 of this court sets forth this court's rules regarding original actions.
Loc.R. 13(J) is captioned "Briefs." Thereunder, the rule provides that the brief of the
plaintiff shall, among other things, provide an argument. Loc.R. 13(J)(4) states:
An argument. The argument shall contain the contentions of
the plaintiff with respect to the issues presented, and the
reasons therefor, with citations to the authorities and
statutes relied on.
{¶ 74} Relator's assertion that "Dr. Lin's report suffers the same flaw as Dr.
Hughes' report" is not an argument under Loc.R. 13(J)(4). This court is not required to
develop an argument that relator may have had with respect to the report of Dr. Lin.
{¶ 75} Accordingly, relator has failed to show that the report of Dr. Lin must be
removed from evidentiary consideration.
Dr. Hawkins' Reports
{¶ 76} As earlier noted, on July 10, 2014, at the request of OPERS, relator was
examined by Dr. Hawkins who had previously examined on May 2, 2013 for the bureau.
{¶ 77} On May 2, 2013, Dr. Hawkins examined relator for the purpose of
determining whether relator's industrial claim should be additionally allowed for
psychiatric conditions. In his report dated May 9, 2013, Dr. Hawkins diagnosed
"Depressive Disorder NOS" and "Generalized Anxiety Disorder." He opined that the
psychiatric conditions were caused by the workplace accident that occurred on April 19,
2008.
{¶ 78} It is important to note that the bureau did not ask Dr. Hawkins to render an
opinion as to disability, and Dr. Hawkins' May 9, 2013 report contains no opinion as to
whether relator can return to her former position of employment as an LPN. Dr. Hawkins
No. 14AP-1060 24
does indicate that relator "has not returned to work since the injury." Nevertheless, there
is no opinion in the report as to disability.
{¶ 79} In his July 10, 2014 report, Dr. Hawkins opines, as earlier noted "symptoms
of anxiety and depression were mild in nature. They do not preclude her from working."
Dr. Hawkins further opined "claimant is not presumably permanently disabled for the
performance of her own occupation as a public employee."
{¶ 80} It should be noted that, in her brief, relator incorrectly frames the issue by
asking whether OPERS acted "unreasonably by relying upon the inconsistent medical
reports of Dr. Hawkins." (Relator's Brief, 4.) Later in her brief, relator asserts again that
OPERS "unreasonably relied upon the unreliable and inconsistent medical reports of Dr.
Hawkins." (Relator's Brief, 20.)
{¶ 81} The evidence of record does not suggest that the OPERS board relied upon
both of Dr. Hawkins' reports. Presumably, only the report requested by OPERS was relied
upon by OPERS. Presumably, OPERS did not rely upon the May 9, 2013 report of Dr.
Hawkins.
{¶ 82} However, even if it can be argued that OPERS relied upon both reports,
there is no inconsistency between the reports.
{¶ 83} Relator also asserts:
The medical report of Dr. Hawkins, which states Relator
would not be precluded from passing medication based on
her emotional condition, is inconsistent with the objective
medical findings of the other physicians who have examined
Relator.
(Relator's Brief, 18.)
{¶ 84} The above statement is simply an invitation that this court reweigh the
evidence for the OPERS board. That Dr. Hawkins' July 10, 2014 report may be
inconsistent with reports of other doctors does not in any way diminish the evidentiary
value of Dr. Hawkins' report.
{¶ 85} Accordingly, based upon the above analysis, the magistrate concludes that
OPERS did not abuse its discretion by relying on the July 10, 2014 report of Dr. Hawkins.
Effect of Relator's Involuntary Separation from her Employment
No. 14AP-1060 25
{¶ 86} As earlier noted, effective September 30, 2011, relator was involuntarily
separated from her employment at the Gallipolis Development Center on grounds that
she was unable to perform her job duties due to a disabling illness, injury, or condition.
{¶ 87} According to relator, given her involuntary separation from employment, it
was "unreasonable" and a "gross abuse of discretion" to deny her application for a
disability benefit. (Relator's Brief, 19.) Relator cites to no authority to support her
argument. Respondent does not respond to the argument.
{¶ 88} Disposition of this issue is aided by State ex rel. Schwaben v. School Emps.
Retirement Sys., 76 Ohio St.3d 280 (1996).
{¶ 89} Harriet I. Schwaben ("Schwaben") began driving a school bus for the
Tallmadge City School District in September 1984. As a result of her employment,
Schwaben was a member of the School Employees Retirement System ("SERS"). In
September 1991, Schwaben was diagnosed by her attending physician, Victoria Codispoti,
M.D., as suffering from clinical depression. Dr. Codispoti prescribed Prozac and Desyrel.
{¶ 90} Schwaben stopped driving a school bus in May 1993 and, the next month,
applied for disability retirement benefits with SERS.
{¶ 91} In accordance with the procedures set forth in R.C. 3309.39, the SERS
board selected Jeffery Hutzler, M.D., to examine Schwaben. Dr. Hutzler concluded that
Schwaben was capable of driving a school bus. Dr. Hutzler determined that Schwaben
was not incapacitated in any way in her ability to drive a bus. He stated: "[i]n fact, if
anything, she is more alert and capable as a driver because she was treated for her
depression." Id. at 280.
{¶ 92} In September 1993, the SERS medical advisory committee concurred with
Dr. Hutzler's findings. Thereafter, the committee chairman recommended to the
retirement board that the application for disability retirement benefits be denied.
{¶ 93} Consequently, in October 1993, the board denied Schwaben's application.
Schwaben then appealed to the board but failed to submit additional medical evidence as
required by an SERS rule. The board denied the appeal and the further request for
reconsideration.
No. 14AP-1060 26
{¶ 94} In February 1994, the Summit County Health Department disqualified
Schwaben as a school bus driver. She was disqualified on the basis that she used Prozac
and Desyrel to control her condition.
{¶ 95} In January 1995, Schwaben filed a mandamus action against SERS in this
court. Following this court's denial of the writ, Schwaben appealed as of right to the
Supreme Court of Ohio.
{¶ 96} On appeal, in her second proposition of law, Schwaben contented that the
determination of whether a disability interferes with a school bus driver's ability to
perform his or her job lies solely within the province of the State Board of Education, not
SERS. Schwaben suggested that a school bus driver who is medically disqualified from
driving a school bus pursuant to former R.C. 3327.10 qualifies, automatically, for
disability retirement benefits under R.C. 3309.39. The Schwaben court disagreed.
{¶ 97} In explaining its decision, the Schwaben court heavily relied upon its prior
decision in Fair v. School Emps. Retirement Sys., 53 Ohio St.2d 118 (1978), a case this
magistrate will not discuss here.
{¶ 98} In denying the writ, the Schwaben court observed that, under R.C. 3309.39,
the determination of whether a member of SERS is entitled to disability benefits rests
solely within the province of SERS. The Schwaben court further noted that to hold
otherwise, would place the determination of eligibility for disability retirement within the
province of an agency having no responsibilities whatsoever for the administration and
control of the retirement funds.
{¶ 99} Applying the reasoning of Schwaben, to the instant case, under R.C. 145.35,
the determination of whether an OPERS member is entitled to a disability benefit rests
solely within the province of OPERS. To hold that the employer can determine whether
an OPERS member is entitled to a disability benefit is not supported by any authority
submitted by relator.
{¶ 100} Based upon Schwaben, the magistrate rejects relator's argument that
her involuntary separation from her employment as an LPN at the Gallipolis
Development Center requires the OPERS board to grant her application for a disability
benefit.
No. 14AP-1060 27
{¶ 101} 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).