State ex rel. Menz v. State Teachers Retirement Bd. of Ohio

[Cite as State ex rel. Menz v. State Teachers Retirement Bd. of Ohio, 2014-Ohio-2419.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jason Menz, :
Relator, :
v. : No. 13AP-586
The State Teachers Retirement : (REGULAR CALENDAR)
Board of Ohio,
:
Respondent.
:
D E C I S I O N
Rendered on June 5, 2014
Dietz Law Office, LLC, and James M. Dietz for relator.
Michael DeWine, Attorney General, and Lydia M. Arko, for
respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Jason Menz, has brought this original action seeking a writ of
mandamus ordering respondent, State Teachers Retirement Board of Ohio ("STRB"), to
vacate its decision denying his application for disability retirement benefits and to enter a
decision granting his application.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate of this court who examined the evidence
and issued a decision, including findings of fact and conclusions of law, which is
appended hereto. The magistrate recommended this court deny the request for a writ of
mandamus.
No. 13AP-586 2
{¶ 3} Relator objects to the magistrate's findings of fact through the following
objections:
The Magistrate failed to include in her Findings of Fact, the
fact that Dr. Berarducci stated that Relator was disabled as of
his June 19, 2012 evaluation. In addition, the Magistrate
failed to confirm that Dr. Berarducci, STRS' evaluator, stated
that Relator has been 'assiduous' in following his doctors'
instructions. Finally the Magistrate failed to include Dr.
Berarducci's statement that Relator's medical condition has
not, in part, improved because of the lack [of] available
medical personnel in his area and as such his chances for
'successful headache pain control' are forever elusive. At pages
8-9, the Magistrate references Dr. Berarducci's June 19, 2012
evaluation report, but only quotes from a very limited portion
of that Report. In fact, in that report Berarducci stated:
…Clearly, Mr. Menz likely will not be returning to work with
headache at the levels he describes today. To that extent, he is
"disabled", but declaration of permanent disability retirement
would seem to close off potential for future improvement. In
some patients, declaration of "total disability" only makes the
situation worse from the standpoint of allowing for eventual
improvement…
Ultimately, all pain problems improve, if the right
combination of physical and psychobehavioral measures can
be found. Mr. Menz has been assiduous in following the
recommendations given to him, but that state of successful
control has remained elusive. I do think he is hindered by
where he lives presently in that adequately aggressive and
creative medical/psychiatric therapies are not available to him
in his home environment. It [has] become less and less
feasible for him to travel distances to meet specialists he
needs. Nevertheless, I suspect that success in controlling his
headache will come if he has a pain "mentor" available to him
as he needs it, when he needs it, no matter how frequent that
interaction may become. Failing this kind of personalized,
daily, face-to-face interaction with the therapist seems to
mean (and likely will continue to mean) that no effective
solution in this case will evolve. As such, all of the various
conditions as currently defined in this case may mean that the
path leading to a successful outcome is too thin and insecure
such that successful headache pain control remain forever
elusive.
No. 13AP-586 3
{¶ 4} Because we find STRB abused its discretion in denying relator's disability
benefits application, we grant relator's request for a writ of mandamus.
I. Summary of Facts and Board Proceedings
{¶ 5} Relator worked as an elementary school principal with the Liberty Local
School District and is a member of the State Teachers Retirement System ("STRS").
Relator suffers from severe and debilitating headaches which have greatly affected his
ability to perform his customary job duties, causing him to frequently be absent from
work. During the 2010-2011 school year, relator was absent 132 days due to personal
illness. On March 10, 2011, Liberty Local Schools Board of Education declined to renew
relator's administrative contract.
{¶ 6} Beginning in August 2009, relator sought treatment at the University of
Pittsburgh Headache Center under Dr. Robert J. Kaniecki. Over the course of nearly two
years, relator visited the center on multiple occasions but continued to suffer from severe
headaches despite various treatments and medications. Ultimately, Dr. Kaniecki
concluded relator should be considered permanently disabled, as relator's "migraine
condition is expected to last at least an additional several years, if not a decade or two."
(Certified Record, at 23.)
{¶ 7} Relator filed a disability benefit application on June 17, 2011, which
attached a report from his attending physician, Dr. Kaniecki. After receiving relator's
disability application, STRS scheduled an independent medical evaluation by Dr. Albert
Berarducci. Dr. Berarducci examined relator on August 17, 2011 and submitted a report
stating he believed relator was temporarily disabled and relator's headaches were
"sufficiently disabling [and] [relator] likely will not tolerate an immediate return to his
previous occupation." (Certified Record, at 30.) Dr. Berarducci recommended relator
seek additional treatment and recommended a number of pain clinics to relator. STRS
notified relator it would delay consideration of his application pending his seeking
additional medical treatment as recommended by Dr. Berarducci.
{¶ 8} Following Dr. Berarducci's initial examination and report, relator traveled
to the Diamond Headache Center in Chicago for additional testing and headache
treatment. Despite treatment at the Diamond Headache Center, no resolution was found
and relator continued to suffer from debilitating headaches.
No. 13AP-586 4
{¶ 9} On April 12, 2012, relator returned to his attending physician, Dr. Kaniecki,
who submitted a report the following day. Dr. Kaniecki recounted the extensive list of
medications and treatments relator had in the previous two and one-half years in an
attempt to alleviate his headaches. Dr. Kaniecki stated, "[d]espite all these steps, [relator]
continues to report an underlying daily headache with severe headache 17 days per month
and incapacitating headache 5 days per month." (Certified Record, at 36.) Dr. Kaniecki
concluded for the second time that relator should be determined permanently disabled,
stating: "[i]t is my opinion, within a reasonable degree of medical certainty, that [relator]
is disabled from his position of school principal. It is also my medical opinion that he is
disabled from his position as a schoolteacher." (Certified Record, at 36.)
{¶ 10} On June 19, 2012, Dr. Berarducci again examined relator. In his assessment
of relator's condition, Dr. Berarducci noted relator had not worked in his chosen
profession since the previous evaluation (August 17, 2011). In the same evaluation, Dr.
Berarducci stated, "[c]learly, [relator] likely will not be returning to work with [the]
headache at the levels he describes today. To that extent, he is 'disabled,' but
declaration of permanent disability retirement would seem to close off potential for future
improvement." (Emphasis added.) (Certified Record, at 58.)
{¶ 11} Dr. Berarducci noted in his assessment, "[relator] has been assiduous in
following the recommendations given to him, but that state of successful control has
remained elusive." (Certified Record, at 58.) Dr. Berarducci went on to conclude, "I see
no immediate resolution of this problem based on the large volume of information that I
have reviewed for this evaluation and for the evaluation dated August 17, 2011." (Certified
Record, at 59.)
{¶ 12} The physicians of the Medical Review Board reviewed both the evidence and
Dr. Berarducci's evaluations and concurred with Dr. Berarducci's opinion. On August 14,
2012, the Medical Review Board recommended to STRB to deny relator's disability
application. STRB voted to deny relator's application on September 20, 2012. Relator
appealed STRB's denial and submitted additional medical evidence for review.
{¶ 13} Dr. Berarducci reviewed the additional documentation in January 2013
regarding relator's ongoing medical treatments. In his assessment, Dr. Berarducci stated:
No. 13AP-586 5
[Relator] clearly has shown that he has not for at least the
past 18 months and likely will not return to his
previous position in teaching, but I still maintain that
this is for reasons lying outside my personal expertise in the
specialty of Neurology. To me it is clear that Mr. Mertz is not
'neurologically disabled'. It is obvious to me that he will
not return to work in the next 12 months and to that
extent he fits the legal definition of 'permanent'
disability from teaching.
(Bold emphasis added; underlining in original.) (Certified Record, at 113.)
II. Magistrate's Decision and Relator's Objections
{¶ 14} A writ of mandamus is the appropriate remedy to seek "relief from an
adverse determination concerning disability retirement benefits or other retirement
decisions." See State ex rel. Pontillo v. Pub. Emps. Retirement Sys. Bd., 98 Ohio St.3d
500, 2003-Ohio-2120, ¶ 23; State ex rel. Moss v. Ohio St. Hwy. Patrol Retirement Sys.,
97 Ohio St.3d 198, 2002-Ohio-5806, ¶ 6; and State ex rel. McMaster v. School Emps.
Retirement Sys., 69 Ohio St.3d 130 (1994). A relator must demonstrate: (1) he has a clear
legal right to the relief prayed for; (2) STRB has a clear legal duty to provide the requested
relief; and (3) relator has no plain and adequate remedy in the ordinary course of law.
State ex rel. Gill v. School Emps. Retirement Sys. of Ohio, 121 Ohio St.3d 567, 2009-Ohio-
1358, ¶ 18.
{¶ 15} A determination by STRB whether a person is "entitled to disability
retirement benefits is reviewable in mandamus to correct an abuse of discretion." State
ex rel. Bruce v. State Teachers Retirement Bd. of Ohio, 153 Ohio App.3d 589, 2003-Ohio-
4181, ¶ 95 (10th Dist.), citing State ex rel. Pipoly v. State Teachers Retirement Sys., 95
Ohio St.3d 327, 2002-Ohio-2219, ¶ 14. "Abuse of discretion" means a decision that is
unreasonable, arbitrary, or unconscionable. Id.{¶ 16} The magistrate concluded STRB did not abuse its discretion when it relied
on an independent medical opinion that relator was not incapacitated due to a
neurological condition. Specifically, the magistrate stated that the objective medical
evidence presented does not support relator's argument that he is permanently disabled
as defined under R.C. 3307.62(C). Therefore, the magistrate recommended we deny
relator's request for a writ of mandamus.
No. 13AP-586 6
{¶ 17} With respect to the magistrate's findings of fact, relator argues Dr.
Berarducci, in fact, found relator was disabled. Relator also objects to the magistrate's
failure to include that relator had been "assiduous" in following his doctor's instructions,
and that relator's medical condition had not improved, in part, due to a lack of medical
personnel in his area. Relator also argues no statutory requirement exists requiring
relator to present evidence of a neurological or physical cause for his headaches. Relator
concludes that STRB abused its discretion when it denied relator's disability benefits and
STRB is required to grant relator's application for disability retirement.
{¶ 18} Under R.C. 3307.62, a member of STRS is entitled to disability coverage
when STRB accepts the member's application. In part, R.C. 3307.62(C) provides:
Medical examination of the member shall be conducted * * *
to determine whether the member is mentally or
physically incapacitated for the performance of duty by a
disabling condition, either permanent or presumed to be
permanent for twelve continuous months following the
filing of an application.
(Emphasis added.)
{¶ 19} Relator filed for STRB disability on June 17, 2011. Included with his
application, relator attached a report of Dr. Kaniecki. In his report, Dr. Kaniecki stated
relator had visited the center multiple times from August 2009 to May 2011. Dr. Kaniecki
concluded relator was "permanently" disabled as relator's "debilitating medical condition"
had lasted beyond one year, and Dr. Kaniecki expected the disability to last "at least an
additional several years." (Certified Record, at 23.)
{¶ 20} As explained above, the record demonstrates Dr. Berarducci, consistent
with the conclusions of each of the other physicians who treated relator, considered
relator unable to return to employment as a teacher or principal. Indeed, Dr. Berarducci
twice opined that relator has met the statutory definition of permanently disabled.
Furthermore, Dr. Berarducci twice in the same medical evaluation admitted facts
sufficient to render relator incapacitated to work; first by saying he had not worked in at
least 18 months because of headaches, and again by stating he did not believe relator
would be able to return to work within the next 12 months.
No. 13AP-586 7
{¶ 21} The magistrate's recommendation relies, in part, on the Supreme Court of
Ohio's holding in State ex rel. VanCleave v. School Emps. Retirement Sys., 120 Ohio
St.3d 261, 2008-Ohio-5377. In VanCleave, the court stated that "subjective complaints
are not conclusive of disability, and objective medical evidence is still relevant to a
determination of the severity of the condition." Id. at ¶ 47. However, the facts presented
in VanCleave are distinguishable from those in the present case. In VanCleave, a
disagreement existed between the disability applicant's treating physician and the
independent medical examiner assigned by the School Employees Retirement System
("SERS"). The applicant's treating physician found the applicant was permanently
disabled and unable to perform the duties of her job for at least 12 months. In contrast,
SERS's medical examiner concluded the applicant "did not suffer from a disability that
would preclude her [from] return[ing] to her last assigned duties." Id. at ¶ 44.
{¶ 22} Here, the examining physicians are in agreement that relator is prevented
from working because of his debilitating headaches. Furthermore, each of the physicians
has stated unequivocally that relator is unable to return to work within the next 12
months.
{¶ 23} Other cases that have addressed this situation are similarly distinguishable
on their facts. STRB argues the Supreme Court of Ohio, in State ex. rel. Morgan v. State
Teachers Retirement Bd. of Ohio, 121 Ohio St.3d 324, 2009-Ohio-591, affirmed
VanCleave's holding that a physician could consider a lack of objective medical evidence
showing that one's physical limitations are caused by symptoms of the medical condition
alleged when determining whether one was disabled or not. Again, the case is
distinguishable. Specifically, the examining physician in Morgan opined, " 'I do not find
anything on today's examination of an objective nature that would, in my opinion,
preclude [Morgan] from [Morgan's] previous job.' " Id. at ¶ 8. The physician certified
that Morgan was capable of resuming her regular duties. Id. at ¶ 9; see also State ex rel.
Riddell v. State Teachers Retirement Bd., 10th Dist. No. 13AP-660, 2014-Ohio-1646, ¶ 14
(where the court upheld the board's decision to terminate the relator's disability benefits
where the independent medical examiner found that although the relator had been unable
to perform her job duties, she was " 'not physically disabled from doing so' ").
No. 13AP-586 8
{¶ 24} Here, unlike the above cases, Dr. Berarducci repeatedly stated, based on the
symptoms presented, that relator was disabled and would not be able to return to his
previous position within the next year. Therefore, pursuant to R.C. 3307.62(C), relator is
a member who is "mentally or physically incapacitated for the performance of duty by a
disabling condition, either permanent or presumed to be permanent for twelve
continuous months" since the time he filed his disability retirement application.
{¶ 25} Because all the evidence in the record supports that relator has been unable
to work in his previous position since October 2010 and will not be able to resume his
duties for at least the next 12 months, we find STRB abused its discretion when it
determined relator was not entitled to disability retirement benefits.
{¶ 26} Following an independent review of this matter, we sustain relator's
objections and reject the magistrate's recommendation. Accordingly, we grant a writ of
mandamus compelling respondent to vacate its denial of disability benefits to relator and
compelling respondent to grant relator disability retirement benefits pursuant to R.C.
3307.62.
Objections sustained; writ granted.
KLATT and CONNOR, JJ., concur.
No. 13AP-586 9
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Jason Menz,
:
Relator, No. 13AP-586
:
v. (REGULAR CALENDAR)
:
The State Teachers Retirement
Board of Ohio, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on January 24, 2014
Dietz Law Office, LLC, and James M. Dietz, for relator.
Michael DeWine, Attorney General, and Allan K. Showalter,
for respondent.
IN MANDAMUS
{¶ 27} Relator, Jason Menz, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, State Teachers Retirement Board
("board"), to find that he is entitled to a disability retirement.
Findings of Fact:
{¶ 28} 1. Relator was employed as an elementary school principal with the
Liberty Local School District in Cortland, Ohio, and is a member of the State Teachers
Retirement System ("STRS").
No. 13AP-586 10
{¶ 29} 2. During the 2010-2011 school year, relator was absent a total of 132 days
due to personal illness.
{¶ 30} 3. On March 10, 2011, relator's administrative contract was not renewed
by the Liberty Local Schools Board of Education.
{¶ 31} 4. Relator completed a disability benefit application and indicated that the
nature of his physical/mental disability was:
The nature of my disability is complications from debilitating
migraine headaches. I experience an [average] of 20
headaches a month. The headaches rate to a severity of 9/10
more than half the time. I have been to the [emergency
room] several times for my headaches. I have been under the
care of the Director of, The Headache Center, University of
Pittsburgh Medical Center since.
{¶ 32} 5. With his application, relator filed a report from Robert J. Kaniecki,
M.D. In that May 6, 2011 report, Dr. Kaniecki provided the following history of relator's
headaches:
Jason Menz is a 38-year-old gentleman we initially saw on
August 5, 2009, at our offices at the University of Pittsburgh
Headache Center. At that time, he was a 36-year-old
gentleman describing headaches dating back to the age of
eight. He does recall headaches between ages 8 to 14, but
between ages 14 and 24 his headache situation had improved
noticeably. By age 24, the headaches had returned, and
during his 30s, they have escalated significantly. For the 6 to
12 months prior to his initial visit, he was averaging 20
headache days per month with five being
severe/incapacitating. He described unilateral or bilateral
headaches, which would involve throbbing discomfort that
worsened with activity, reaching a severity of 9/10. Nausea
and vomiting were more problematic in the past, but he
continued to experience sensitivities to light and noise. He
would also experience a "hangover" of fatigue. At that time,
we recommended amitriptyline for headache stabilization
and Imitrex injections for attacks[.]
Since the initial visit in August of 2009, we have had the
opportunity to see Jason on multiple occasions. He was
again seen in our offices on December 21, 2009, March 12,
2010, May 6, 2020 [sic], June 28, 2010, September 29, 2010,
December 1, 2010, January 6, 2011, April 11, 2011, and
No. 13AP-586 11
May 2, 2011. During this stretch of time, he has continued to
experience approximately 20 headaches days per month with
10 being severe and 5 incapacitating. There have been
occasional emergency department visits and frequent
absences from work were necessary. Earlier this year, we
started a period of medical leave to begin a more aggressive
exercise and therapeutic program, but nevertheless, he has
continued to experience a relatively high headache
frequency. His headache impact test (HIT-6) scores, which
indicate the level of disability associated with migraine, have
remained in the "severe impact" range despite numerous
medication adjustments. We recently instituted a Botox
program to stabilize his headache disorder.
{¶ 33} Ultimately, Dr. Kaniecki opined that relator should be found to be
permanently disabled, stating:
Jason approached me about the possibility of an occupation-
specific disability and it has been brought to my attention
that he is eligible for STRS disability retirement when
suffering from a debilitating medical condition, which
prevents patients from performing their most recent
teaching positions. It is my opinion that Mr. Menz is
presently unable to perform his job as an elementary school
principal. His migraine condition is expected to last at least
an additional several years, if not a decade or two, and given
the refractory nature of his headaches over the past 18
months, it is my expectation that he will continue to suffer
intermittent disability from protracted migraine episodes.
Since the definition of "permanent" disability is listed as a
condition extending beyond one year, I would certify him as
permanently disabled.
{¶ 34} 6. After receiving relator's application, STRS scheduled relator for an
independent medical evaluation with Albert L. Berarducci, Jr., M.D. In his August 17,
2011 report, Dr. Berarducci first discussed the state of the medical record which he was
given to review, indicating that he had two copies of a letter from Dr. Kaniecki dated
May 6, 2011 and noted further that the letter did not reveal the treatment strategy
employed by Dr. Kaniecki. Dr. Berarducci noted there was a reference to relator having
been seen by Dr. Mays at the Cleveland Clinic Foundation, Dr. Tamulonis, a neurologist
in Youngstown, Ohio, and Dr. Maggiano, a local neurologist in the Cortland, Ohio area;
however, Dr. Berarducci noted that there were no records from those neurologists
No. 13AP-586 12
presented for him to review. Dr. Berarducci noted that relator presented four pages of
personal statements prepared by himself, his wife, and his mother. Relator indicated
that he began having headaches when he was six years old. The headaches went into
remission for a time, but began again when he was married to his current wife in 2003,
and accelerated in 2005 when his daughter was born.
{¶ 35} Thereafter, Dr. Berarducci indicated that the neurological portion of his
examination was normal and recommended that relator attempt an alternative
approach to headache management before disability was considered. Specifically, Dr.
Berarducci indicated:
ASSESSMENT: Mr. Menz has chronic daily headache that
has been at the current level of severity
(frequency/duration/intensity) for the last eight years, or
since he married his current wife. There was an unquantified
acceleration in his headache when his daughter was born.
Though these two specific dates stand out not only to Mr.
Menz, and also to his wife, they have gone unexplored as
stressors and/or generators of headache in all prior
headache evaluations over the last eight years in Pittsburgh,
Cleveland, Youngstown, and local to his home in Cortland,
Ohio. As I see it, this is one of the larger failings of the
therapeutic plans employed by physicians treating Mr. Menz.
That is, he has not effectively dealt into the psychobehavioral
underpinnings of this headache syndrome, which I suspect
are more significant than has been elucidated in the past.
Though diagnosable psychopathology likely is not a
significant contributor to the day to day "disability" he
asserts is present, psychobehavioral fitness and endurance
very likely contribute to pain intolerance, which leaves Mr.
Menz to choose avoidance behaviors such as social withdraw
from family affairs as a consequence of this headache.
Paradoxically, he is able to exert himself physically in his
exercise regimen even going so far as to say that physical
exercise is a kind of "therapy" for him to get through a day in
which he awakens fearing the worst with regard to headache
impact on the day ahead. The incongruity of these poies [sic]
of physical reaction to headache pain begs further definition.
All of these elements need deeper and more flexible
evaluation, if Mr. Menz is going to reach a self sustaining,
more effective program of headache management at any time
in the near future.
No. 13AP-586 13
In body of this report I referred to the therapies employed by
Mr. Menz as "passive." That is, his physicians have told Mr.
Menz to do many things over the years as treatment for the
headache. It seems Mr. Menz has dutifully followed all
recommendations, but on a superficial level. He has never
addressed deeper levels of headache awareness, progressing
to a better understanding of how his particular physical and
psycho-behavioral constitution permits the development of
his headache problem and ultimate incapacity.
Taking an alternative, "mindfulness" approach to headache
management will require specific instruction. That is, Mr.
Menz needs to understand how it is that a particular
environmental stressor triggers his headache—how his
constitution promotes and predisposes him to maximum
intensity headache so frequently—and what to do about it
when such a headache is triggered. There is no headache
syndrome that cannot be curtailed by one treatment measure
or another. I have recommended to Mr. Menz that he
consider a "second opinion" headache evaluation to gain just
this type of perspective on his headache as distinguished
from what it has been in the past or what it is destined to
become on the present trajectory in the future. I gave him
information about the Michigan Head-Pain & Neurological
Institute (MHPNI) in Ann Arbor, Michigan to accomplish
such a second opinion. He is free to go wherever he feels he
is likely to get the best information and the Diamond
Headache Clinic in Chicago, Illinois was brought up by Mr. &
Mrs. Menz as well. No matter where he chooses to get further
help with headache management, Mr. Menz needs to be
more pro-active in the treatment of his own headache
syndrome. A declaration of permanent disability retirement
will likely be counterproductive in this case as it only frees
him from the stresses and pressures of his job while not
actually treating the underlying problem. This headache
syndrome could flower again in the future when faced by
different stressors meeting inadequate personal resistance,
resulting in headache activity that recreates this same level
of incapacity.
One additional physiologic feature that that Mr. Menz needs
to address is the potential toxicity of Imitrex used exclusively
by injection. He uses no other analgesic regimen aside from
Imitrex. He and his wife estimate that he takes 3-4 injections
of Imitrex weekly, roughly double the maximum allowable
for an individual week. This has been a constant treatment
No. 13AP-586 14
plan for many months, if not years. Imitrex toxicity may be
contributing significantly to the overall headache profile
reported today. An alternative treatment strategy promoting
diminished use of Imitrex will test the "rebound headache
hypothesis" to his ultimate overall benefit.
In short, Mr. Menz presents a significant headache problem
as it is currently constituted. However, passive pain control
strategies currently employed guarantee there will be no
progressive evolution to a more effective personal plan to
control this headache. He has had problem headaches since
he was six years old and suffered a concusion (no
relationship with the current headache, however). That
accident should not have guaranteed a future of
incapacitating headaches. Search for a more effective
treatment strategy should begin now, before declaring Mr.
Menz to be permanently disabled. There is reason for
optimism, but only with a carefully revised approach to
headache management, organized so that Mr. Menz
orchestrates his behaviors and activities "mindfully" with the
tacit acknowledgment that his life path and life choices can
be either headache promoting or therapeutic in and of
themselves.
From a purely neurological perspective, I do not think that
Mr. Menz should be declared permanently disabled from
teaching. His headache as currently described is sufficiently
disabling that he likely will not tolerate an immediate return
to his previous occupation without additional instruction in a
different philosophy of headache pain management. I
recommend that a temporary disability status be arranged
for Mr. Menz so that he can go about finding a
multidisciplinary, self-evolving treatment protocol for
managing his headache. I have given him some
recommendations and information regarding the Michigan
Head-Pain & Neurological Institute. There are other similar
chronic pain clinics throughout the United States (Diamond
Headache Clinic, Scripps—La Jolla, Boston Pain Center, to
name but a few) that emphasize a "mindful" approach to
headache management dovetailed with a minimalist but
effective medicinal regimen that is not overly toxic to the
daily functioning the headache sufferer.
No. 13AP-586 15
{¶ 36} 7. In a letter dated August 31, 2011, STRS notified relator that it was going
to delay consideration of his application for six months so that he could secure
additional medical treatment. Specifically, that letter provides:
At this time the Medical Review Board concluded that your
condition might improve within the 12 month period
following receipt of your application.
After reviewing the Independent Medical Examiner's report,
the Medical Review Board determined that you must secure
medical 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
including any test results completed during that period,
regarding the treatment provided and progress you have
made.
Please inform us of the name and address of the physician
you will be seeing for treatment.
After receiving your doctor's report, we will arrange for
reexamination.
{¶ 37} 8. Thereafter, relator traveled to Chicago, Illinois for an evaluation.
Relator has attached copies from St. Joseph's Hospital; however, there are no reports
that were generated from this visit. Instead, it appears that relator was given certain
medications at the time he was discharged and certain instructions, including:
MEDICATIONS AT THE TIME OF DISCHARGE:
[One] Bystolic 5 mg daily.
[Two] Toradol 10 mg 1 pill twice a day as needed for
headache pain. Max of 20 pills per month.
[Three] Norflex 100 mg 1 pill twice a day as needed for
headache pain. Max of 20 pills per month.
[Four] Migranal nasal spray 1 spray each nostril onset of the
headache. Repeat in 15 minutes and again in 2h if needed. A
max of 6 spays per day and 2 days per week.
[Five] Pristiq 50 mg daily.
[Six] Duxaril 75 mg 2 pills at bedtime.
DISCHARGE INSTRUCTIONS:
No. 13AP-586 16
The patient was given a follow-up appointment with Dr.
Pinilla, Dr. Shiba, and biofeedback for April 5th. Diet: The
patient was advised to follow a low tyramins free diet.
Activities: Resume activities as tolerated.
{¶ 38} 9. Dr. Kaniecki submitted a report dated April 13, 2012, wherein he stated
as follows:
This letter regards the medical condition of Jason Menz, a
39-year-old gentleman I most recently saw in our offices on
April 12, 2012, for ongoing management of a chronic daily
headache disorder. He initially presented to our attention in
August of 2009, describing a long-standing history of
episodic headache dating back to the age of eight but
progression of headache to a near-daily basis since 2007 or
2008. Over the past 2 1/2 years, we have attempted to
stabilize his headaches with a number of different
medications, numbering approximately two dozen in terms
of drugs aimed to either prevent or treat individual headache
attacks. He has undergone extensive diagnostic testing, and
most recently underwent re-evaluation through a second
opinion at the Diamond Headache Center in Chicago. There
he underwent a four-day hospital inpatient program as well
as outpatient treatment medication changes. Despite all
these steps, Jason continues to report an underlying daily
headache with severe headache 17 days per month and
incapacitating headache 5 days per month. He has shown no
significant improvement despite a number of medication
changes and trials of both occipital nerve blocks and Botox
injections since August of 2011. Although we will continue to
aggressively manage Jason, His [sic] lack of improvement
despite all these measures results in a significant measure of
disability.
It is my opinion, within a reasonable degree of medical
certainty, that Mr. Menz is disabled from his position of
school principal. It is also my medical opinion that he is
disabled from his position as a schoolteacher. We are
encouraging further employment opportunities that are
more "flexible" and scheduling permitting absences and
schedule adjustments when necessary. Please inform us if
any further information is necessary.
{¶ 39} 10. Relator was again evaluated by Dr. Berarducci. In his June 19, 2012
report, Dr. Berarducci noted that the Chicago records he was provided were essentially a
No. 13AP-586 17
discharge summary indicating the medications provided to relator and noted that, due
to financial concerns, relator had not been able to reschedule an appointment with the
clinic for follow-up care. Dr. Berarducci again noted that relator had not been
aggressively pursuing a combination of anti-depressants and psychotropic medications
to supplement his traditional psychological counseling noting that there was no
neurological explanation for relator's unusually intractable headache syndrome. Dr.
Berarducci noted that relator needed to deal with his insomnia and there needed to be
more aggressive work in the psychiatric realm. He noted that relator had attempted
stress reduction and relaxation exercises but noted that relator's purely personal
attempts to control his headache pain, with no one but himself to advise and guide him,
were not likely to be successful. Dr. Berarducci concluded as follows:
I will leave to the committee the decision whether or not
disability retirement should eventually be declared. This is
not my bias all things considered, but I see no immediate
resolution of this problem based on the large volume of
information that I have reviewed for this evaluation and for
the evaluation dated August 17, 2011. From a neurological
perspective Mr. Menz has no measurable cause or reason to
be permanently disabled. His inability to work resides only
on his assertions he cannot work (hence the suspicions about
malingering) or on purely psychobehavioral causes
(depression, personality make-up, etc).
PLAN: 1. More extensive sleep medicine evaluation to correct
insomnia…
2. More aggressive, personalized psychiatric
evaluation centered on exploration pain-allied treatments …
3. Return to clinic PRN.
{¶ 40} 11. Thereafter, the physicians comprising the Medical Review Board
reviewed the evidence and provided their recommendations. In his July 25, 2012
report, James N. Allen, M.D., recommended that disability retirement be denied,
stating:
In summary, this school principal has a long history of
chronic headache dated to age 8. His headaches have become
worse over the past decade to the point that he has stopped
working as a principal but is currently working in another
business. A brain MRI has shown a small pineal cyst but
No. 13AP-586 18
these are very common (present in up to 10% of healthy
people) and rarely cause symptoms when they are this small.
His headache has not been easy to categorize into a specific
type and he seems to best fit a chronic pain syndrome. As
with many other patients with chronic pain syndromes, he
has no abnormalities on physical exam or objective testing to
explain his symptoms. Disability can often be
counterproductive in the management of chronic pain in that
a primary goal of treatment is to assimilate the patient back
into a regular home and work environment with strategies to
manage pain within the context of these environments. In
this regard, disability can often create a barrier to optimal
pain management. I recommend that disability retirement be
denied.
{¶ 41} 12. In his July 25, 2012 report, Jeffrey C. Hutzler, M.D., also
recommended that relator not be considered permanently incapacitated from the
performance of his job duties, stating:
After reviewing these documents it is my recommendation
that Jason Menz is not considered to be permanently or
presumed to be permanently incapacitated for the
performance of duty and that he should not be retired.
Further psychiatric evaluation would be unlikely to shed
more light upon the excellent evaluation performed by
B[e]rarducci.
{¶ 42} 13. In his August 8, 2012 report Barry Friedman, M.D., opined that a
psychiatric evaluation might prove beneficial, and stated:
Following review of the available records and the thorough
evaluations performed by Dr. Berarducci in 2011 and 2012 I
believe the applicant's best interests are served by further
discussion of this case at a meeting of the Medical Review
Board. Consideration should also be given to the benefit that
might be obtained from a psychiatry disability evaluation
prior to a final determination in this difficult case.
{¶ 43} 14. In a letter dated August 14, 2012, relator was notified that the board
concluded he did not meet the criteria for permanent disability and that his case would
be presented to the board in September.
No. 13AP-586 19
{¶ 44} 15. In a letter dated September 21, 2012, relator was notified that the
board denied his application for disability benefits and informed him of his right to
appeal.
{¶ 45} 16. Relator appealed and his attorney submitted a letter reiterating that
relator had done everything his doctors had asked him to do and, as recommended by
Dr. Berarducci, had traveled to Chicago for treatment. Counsel asserted that one year
had already passed since Dr. Berarducci first examined relator and relator was still not
able to return to work because of his headaches. As such, counsel asserted that clearly
relator was permanently disabled.
{¶ 46} 17. Relator also submitted additional medical evidence including the
November 6, 2012 letter from William E. Beckett and an interpretive report of the
Minnesota Multi Phasic Personality Inventory-2-Restructured Form ("MMPI-2-RF"),
which recommended that relator be evaluated for somatoform disorder if the physical
origin for his head pain complaints had been ruled out. Mr. Beckett's letter was written
in response to Dr. Berarducci's reports. Mr. Beckett is very critical of Dr. Berarducci's
reports and reiterates that relator continues to suffer headaches regardless of the steps
he takes to find relief.
{¶ 47} 18. The additional medical evidence relator submitted was given to
Dr. Berarducci for his review.
{¶ 48} 19. In a letter dated January 7, 2013, Dr. Berarducci noted that Mr.
Beckett indicated he was submitting notes from a doctor for whom he had great respect,
but there were no notes included with Mr. Beckett's letter. Further, Dr. Berarducci
noted that there was no indication who had performed or interpreted the MMPI-2-RF,
but discussed it, stating:
MMPI-2-RF data suggest that Mr. Menz can be said to have
'Somatoform disorder, if physical origin for head pain
complaints has been ruled out'—which in my view has. The
MMPI-2-RF report bases this diagnosis on the 'Substantive
Scale Interpretation…Somatic/Cognitive Dysfunction… The
test taker reports experiencing head pain and is likely to
present with multiple somatic complaints and be prone to
developing physical symptoms in response to stress…[']
(Emphasis mine).
No. 13AP-586 20
Perhaps this is why Mr. Menz began experiencing his current
headache in 2003 after marriage to his current wife and why
this headache problem accelerated after the birth of his
daughter in 2005. Perhaps this is also why his headache has
seemed to be so infinitely malleable and inscrutable over the
years evading good faith attempts to help him cope with
'stress' in its various forms and ultimately to avoid the
resulting headache and psychobehavioral dysfunction. These
and many other contradictory facets of the headache profile I
have come to understand are expressed and analyzed more
fully in the clinical notes of 8/17/2011 and 6/19/2012. Please
refer to them for details, as I will not reiterate them for this
report.
{¶ 49} Ultimately, Dr. Berarducci again concluded that relator was not disabled,
stating:
In short, Mr. Menz does not have an objectively measurable
neurological condition that invariably should result in the
headache that 'disables' him. He clearly has shown that he
has not for at least the past 18 months and likely will not
return to his previous position in teaching, but I still
maintain that this is for reasons lying outside my personal
expertise in the specialty of Neurology. To me it is clear that
Mr. Menz is not 'neurologically disabled'. It is obvious
to me that he will not return to work in the next 12 months
and to that extent he fits the legal definition of 'permanent'
disability from teaching. As I have logically maintained
and/or strongly implied in previous writings, Mr. Menz is
unable to return to work because of a psychobehavioral
condition that has now been defined as 'somatoform
disorder'―a condition proved by the MMPI-2-RF on 10/4/12
data only made available to me in this recent submission of
documents. After review of the new information I stand fully
by my words and conclusions as previously expressed.
(Emphasis sic.)
{¶ 50} 20. Various physicians from the board again reviewed relator's
application and the additional medical evidence he had submitted. Dr. Allen again
recommended that disability retirement be denied, stating:
In summary, this school principal has a long history of
chronic headache dating to age 8 and pre-dating his
employment as an educator. There has been no physical
No. 13AP-586 21
basis for his headaches despite an exhaustive diagnostic
work-up. His headaches therefore best fit into a chronic pain
syndrome. He has been able to resume employment in a
non-education-related field. I do not question that he has
headaches, however all forms of chronic pain syndromes
without physical basis are rarely grounds for permanent
disability. Also, somatoform disorders are rarely, if ever, a
basis for permanent disability. Disability can often be
counterproductive in the management of chronic pain in that
a primary goal of treatment is to assimilate the patient back
into a regular home and work environment with strategies to
manage pain within the context of these environments. In
this regard, disability can often create a barrier to optimal
pain management and can prevent optimal treatment. I
continue to recommend that disability retirement be denied.
{¶ 51} 21. Dr. Friedman recommended a psychiatric evaluation:
Given his long term very atypical course and the absence of a
clearly defined organic neurologic diagnosis the potential for
a somatoform disorder exists but at this point is only offered
as an MMPI diagnosis. I do not believe that Mr. Menz can
function on a daily basis as a school teacher and while I favor
disability, a better understanding of his mental health may
help establish his diagnosis and clarify his disability status. I
believe the issues raised in his appeal may require further
discussion, a psychiatric evaluation and/or personal
appearance by the applicant prior to a final determination.
{¶ 52} 22. Dr. Hutzler again recommended that disability retirement be denied.
{¶ 53} 23. The board again voted to deny relator's request for disability
retirement.
{¶ 54} 24. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 55} Relator asserts that a writ of mandamus is appropriate here where all the
medical evidence confirms that he is mentally or physically incapacitated from the
performance of his duty as an elementary school principal by a disabling condition that
has existed for at least 12 months from the date of his application.
{¶ 56} Relator asserts that the only dispute in this case concerns his treatment,
but not the fact that his headaches prevent him from performing his duties as a
principal.
No. 13AP-586 22
{¶ 57} It is this magistrate's decision that relator has not demonstrated that the
board abused its discretion here.
{¶ 58} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 59} Mandamus is the appropriate remedy where there is no statutory right of
appeal from a decision of a public retirement system. State ex rel. Pipoly v. State
Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219; State ex rel. Mallory v.
Pub. Emp. Retirement Bd., 82 Ohio St.3d 235 (1998); State ex rel. Van Dyke v. Pub.
Emp. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123; State ex rel. Schaengold v.
Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760. As such, the
determination by STRS and its retirement board of whether a person is entitled to
disability retirement benefits is reviewable in mandamus because R.C. 3307.62 does not
provide for an appeal from the administrative determination. Id. Determination of
whether a member of STRS is entitled to disability retirement is fully within the
discretion of the board. See R.C. 3307.62(F) and Fair v. School Emps. Retirement Sys.,
53 Ohio St.2d 118 (1978).
{¶ 60} In order to qualify for a disability retirement, a member of STRS must
submit medical evidence establishing that they are mentally or physically incapacitated
from the performance of duty by a disabling condition, either permanent or presumed to
be permanent for 12 continuous months following the filing of an application. See R.C.
3307.62(C).
{¶ 61} In the present case, when he filed his application for disability retirement,
relator indicated that the nature of his physical/mental disability was:
The nature of my disability is complications from debilitating
migraine headaches. I experience an [average] of 20
headaches a month. The headaches rate to a severity of 9/10
more than half the time. I have been to the [emergency
room] several times for my headaches. I have been under the
care of the Director of, The Headache Center, University of
Pittsburgh Medical Center since.
No. 13AP-586 23
{¶ 62} In support of his application, relator attached a report from Dr. Kaniecki, a
neurologist. In response, STRS had relator examined by Dr. Berarducci, also a
neurologist.
{¶ 63} In his August 17, 2011, June 19, 2012, and January 7, 2013 reports, Dr.
Berarducci clearly opined that there was no physical neurological explanation for relator's
headaches. In his August 17, 2011 report, Dr. Berarducci specifically noted that relator's
treatment to date had been passive, i.e., relator has simply done what his physician's have
told him to do. Dr. Berarducci noted that relator had never addressed the deeper levels of
headache awareness nor had he progressed to a better understanding of how his
particular physical and psychobehavioral constitution permit the development of his
headaches and ultimate incapacity. As early as 2011, Dr. Berarducci inferred that simply
taking medications was not going to resolve relator's headache issue. Dr. Berarducci
specifically recommended that relator be granted a temporary disability so that he could
pursue a multidisciplinary, self-evolving treatment protocol to manage his headaches.
{¶ 64} The board seemingly followed Dr. Berarducci's advice, giving relator six
months to seek treatment. Relator did so; unfortunately, relator did not present much in
the way of medical evidence explaining what treatments were attempted in Chicago.
Relator was at the headache clinic for less than a week and it appears they tried different
medications, some counseling, and biofeedback. Relator did not pursue anything
thereafter. Needless to say, relator's condition did not improve.
{¶ 65} Dr. Berarducci examined relator again in June 2012. Dr. Berarducci again
explained that the neurological examination was normal and that no physical cause had
been identified to explain relator's unusually intractable headache syndrome.
Dr. Berarducci again opined that if the right combination of psychobehavioral measures
could be found, relator's headaches should resolve.
{¶ 66} Part of relator's argument is that he was disabled in August 2011 when
Dr. Berarducci first examined him and he was still disabled in June 2012 when
Dr. Berarducci examined him a second time. As such, relator asserts this demonstrates
that he was actually permanently incapacitated for the performance of his duties for 12
months or longer. In other words, because his condition did not improve between August
No. 13AP-586 24
2011 and June 2012, relator contends that the medical evidence clearly demonstrates that
he is entitled to a disability retirement.
{¶ 67} As noted above, relator contends that he is permanently incapacitated due
to the disabling condition of migraine headaches. However, Dr. Berarducci opined on
three occasions that relator was not incapacitated from a neurological condition. In State
ex rel. VanCleave v. School Emps. Retirement Sys., 120 Ohio St.3d 261, 2008-Ohio-5377,
the Supreme Court of Ohio stated:
[S]ubjective complaints are not conclusive of disability, and
objective medical evidence is still relevant to a determination
of the severity of the condition.
Id. at ¶ 47.
{¶ 68} The objective medical evidence presented supports Dr. Berarducci's
conclusion that relator is not disabled from a neurological condition.
{¶ 69} Furthermore, the fact that relator might be disabled due to a condition he
does not allege causes his disability, namely somatoform pain disorder, STRS is not
required to refer relator for a medical evaluation by someone in that field. In State ex
rel. Bruce v. State Teachers Retirement Bd. of Ohio, 153 Ohio App.3d 589, 2003-Ohio-
4181 (10th Dist.), the relator argued that STRS abused its discretion when it did not
have Bruce evaluated by a psychiatrist when she had indicated on her disability
application that chronic fatigue syndrome and fibromyalgia were causing her disability.
Finding that Bruce had failed to present evidence that she was incapacitated by a
psychological disorder, this court found that it was within STRS' discretion not to
appoint a psychiatrist to examine her pursuant to R.C. 3307.62(C).
{¶ 70} The magistrate recognizes that relator was and is in a predicament. He is
no longer working as a principal and he has two years from the date of his last service to
apply for disability retirement. Relator has headaches and those headaches are
debilitating. He has attempted certain treatments which have been completely
unsuccessful. From a financial standpoint, the magistrate is certain that relator and his
family are experiencing real difficulties. However, relator is still required to
demonstrate the presence of a disabling condition. The magistrate does not dispute that
relator has significant symptoms; however, Dr. Berarducci opined that relator had not
No. 13AP-586 25
presented evidence of a neurological/physical cause for his headaches. As such, the
majority of the treatment that relator has attempted has been unsuccessful. While there
is evidence that relator has undergone some counseling, there are no medical records
submitted detailing that therapy and/or treatment.
{¶ 71} Finding that the board did not abuse its discretion when it denied relator's
application for disability retirement benefits, it is this magistrate's decision that this
court should deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
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).