State ex rel. Hayslip v. State Teachers Ret. Sys. Bd.

[Cite as State ex rel. Hayslip v. State Teachers Ret. Sys. Bd., 2021-Ohio-3495.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Gary L. Hayslip, :
Relator, : No. 20AP-64
v. : (REGULAR CALENDAR)
State Teachers Retirement System :
Board,
:
Respondent.
:
DECISION
Rendered on September 30, 2021
On brief: Hanna Rasnick Evanchan Palmisano Hobson &
Fox, LLC, and Scott M. Kolligian, for relator.
On brief: Dave Yost, Attorney General, Samuel A. Peppers
III, Pension Counsel and Mary Therese J. Bridge, for
respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Gary L. Hayslip, filed this original action seeking a writ of mandamus
ordering respondent, State Teachers Retirement System Board of Ohio ("STRS") to approve
his application for disability benefits.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate of this court. The magistrate issued the appended
decision, including findings of fact and conclusions of law, recommending that this court
deny relator's request for a writ of mandamus.
{¶ 3} Relator has filed timely objections to the magistrate's decision, and the case
No. 20AP-64 2
has now been submitted for ruling. The relator argues that the magistrate's finding that
STRS did not act in an unreasonable, arbitrary, or unconscionable matter was not
supported by the record, and specifically argues that the magistrate's finding that "the
actual job duties described by the employer, which were not contradicted by any evidence
in the record, are the substantive standard in this case and supersede any formal
classification as 'light duty' or 'sedentary duty' for purposes of ascertaining disability" was
unsupported and contradicted by the evidence in the record. (Mag's. Decision at 16.)
Relator contends that because Dr. James Kleja, M.D. determined that he "can perform
sedentary level job duties" and because vocational specialist Brett Salkin indicated that all
teaching positions are "light-duty" work, that there is no evidence in the record to support
respondents denial of benefits on the basis that relator was capable of performing the duties
of a substitute teacher.
{¶ 4} Mandamus is available as remedy to correct an abuse in determining benefits
eligibility by a state retirement fund. State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd.,
156 Ohio St.3d 433, 2019-Ohio-1568, ¶ 6. A relator seeking a writ of mandamus to a pension
board must establish a clear legal right to the relief sought, a clear legal duty on the part of
the respondent to perform the requested act, and the lack of an adequate remedy at law.
State ex rel. Riddell v. State Teachers Retirement Bd., 10th Dist. No. 13AP-660, 2014-Ohio-
1646, ¶ 20. "Because the final retirement-board decision is not appealable, mandamus is
available to correct an abuse of discretion by the board in its determination concerning
disability-retirement benefits." State ex rel. Hulls v. State Teachers Retirement Bd., 113
Ohio St.3d 438, 2007-Ohio-2337, ¶ 27. There is an abuse of discretion only if STRS acts in
a manner that is unreasonable, arbitrary, or unconscionable. State ex rel. Pipoly v. State
Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 14. STRS abuses its
discretion when it enters an order that is not supported by at least "some evidence." State
ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307,
¶ 20-21, citing State ex rel. Grein v. Ohio State Hwy. Patrol Retirement Sys., 116 Ohio St.3d
344, 2007-Ohio-6667, ¶ 9. The presence of contrary evidence is not dispositive, so long as
the "some evidence" standard has been met. State ex rel. Am. Std., Inc. v. Boehler, 99 Ohio
St.3d 39, 2003-Ohio-2457, ¶ 29. Mandamus will lie only if the board's decision is not
supported by any evidence. State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys.,
144 Ohio St.3d 367, 2015-Ohio-3807, ¶ 17.
No. 20AP-64 3
{¶ 5} Relator was examined by Dr. Kleja, M.D. on November 16, 2018, and
Dr. Kleja's report specifically reiterates relator's generalized statement of complaint that
"he can stand and walk for 20 or 30 minutes at a time and sit for 20 or 30 minutes at a time
before the pain becomes severe * * *." (Stipulated Record at 52.) Dr. Kleja examined relator
and reviewed the medical reports of the experts that relator had submitted with his
disability application. Overall, Dr. Kleja concluded that relator displayed "moderate to
severe pain behavior that is out of proportion to physical exam findings," id. at 54, and
specifically observed: (1) that "there is no evidence on physical examination today of
cervical radiculopathy and he has a normal strength in the upper limbs," (2) that relator
had "tenderness over his ankles with multiple tendon issues noted on [the] MRI of his right
ankle, but [they] appear to be chronic or old and not functionally limiting," (3) that relator's
low back pain and osteoarthritis of the knees could be alleviated and that neither condition
would "prevent him from performing the essential job duties of a substitute teacher" since
"he can change positions frequently," and that (4) relator's "functional capacity evaluation
confirmed [that] he can perform sedentary level job duties which would allow him
therefore to perform the task of a substitute teacher." Id. at 55 (Emphasis added.) Dr.
Kleja's opinion and recommendation was that relator "can perform the essential duties of
his job of a substitute teacher and therefore should not be medically retired," id., and also
that relator "was not physically or mentally incapacitated from his or her job duties for 12
continuous months from the application date." (Mag's Decision at ¶ 17, citing Stipulated
Record at 56.)
{¶ 6} On review, we reject relator's argument and overrule relator's objections to
the magistrate's decision. Dr. Kleja's report constitutes "some evidence" supporting the
STRS order denying benefits. See State ex rel. Marchiano, 2009-Ohio-307, ¶ 20-21, and
State ex rel. Grein, 2007-Ohio-6667, ¶ 9. Accordingly, the fact that there is contrary
evidence that technically classifies teaching as "light duty" rather than "sedentary duty" is
not dispositive in this case, as the "some evidence" standard has been met. See State ex rel.
Am. Std., Inc., 2003-Ohio-2457, ¶ 29. Therefore, we adopt the magistrate's decision as our
own, including the findings of fact and the conclusions of law therein. In accordance with
the magistrate's decision, we conclude that the commission properly exercised its
jurisdiction, and did not abuse its discretion in denying relator's request for benefits.
No. 20AP-64 4
Relator's requested writ of mandamus is accordingly denied.
Writ of mandamus denied.
DORRIAN, P.J., concurs in judgment only.
MENTEL, J., concur.
________________
No. 20AP-64 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Gary L. Hayslip, :
Relator, :
v. : No. 20AP-64
State Teachers Retirement System Board, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on March 30, 2021
Hanna Rasnick Evanchan Palmisano Hobson & Fox, LLC, and
Scott M. Kolligian, for relator.
Dave Yost, Attorney General, Samuel A. Peppers III, and
Mary Therese J. Bridge, for respondent.
IN MANDAMUS
{¶ 7} Relator, Gary L. Hayslip, seeks a writ of mandamus ordering respondent,
State Teachers Retirement System Board ("STRS" or "board" as appropriate) to vacate its
order denying relator's application for disability benefits, and enter an order granting such
benefits, including retroactive benefits payable from the time of application.
Findings of Fact:
{¶ 8} 1. STRS is a state agency established and governed under statutes set forth
in Chapter 3307 of the Ohio Revised Code.
{¶ 9} 2. The board oversees STRS and issues final decisions on disability benefit
eligibility. R.C. 3307.04; R.C. 3307.62.
No. 20AP-64 6
{¶ 10} 3. Hayslip worked for Akron Public Schools as a substitute teacher, and was
an eligible participant in STRS, as defined by R.C. 3307.01(C).
{¶ 11} 4. Hayslip submitted a disability benefit application on September 28, 2018
with supporting documentation. (Stip. at 8-11.)
{¶ 12} 5. With his disability application, Hayslip attached the STRS "Report by
Employer" form supplied by Akron Public Schools, which contains the following job
description:
Description of job duties the applicant last performed: Delivers
daily instruction to assigned students as directed by classroom
teacher. Works on different assignments based upon vacancies
created by planned or unplanned teacher absences.
Correction fluid/tape used
In what ways does the applicant's performance of duties show
probably disability for further service?
Unknown at this time.
Does job require any special working condition or physical
demands such as lifting/kneeling? If so, please specify (pounds
lifted, frequency of kneeling, use of stairs, etc.).
Standing, sitting, walking, intermittently throughout work day.
Please describe any accommodations made under the
Americans with Disabilities Act.
Mr. Hayslip has not requested any accommodations, however,
he did resign from his part-time teaching assignment citing
increased health problems/issues. His resignation from the
part-time position was effective 04/12/2018.
(Stip. at 15.)
{¶ 13} 6. Hayslip attached the report and recommendation of two of his attending
physicians in the Veteran's Administration healthcare system.
{¶ 14} 7. Paul Fantauzzo, D.O., submitted a report and recommendation dated
September 4, 2018 supported by numerous treatment records. (Stip. at 19.) Dr. Fantauzzo
opined that Hayslip was disabled, the disability was expected to last 12 or more months,
No. 20AP-64 7
and was based on disabling symptoms of neck pain caused by cervical radiculopathy.
Dr. Fantauzzo also identified other conditions for which he was treating Hayslip as diabetes
melitis, degenerative joint disease of the shoulder, and gastro esophageal reflex disease
("GERD"). (Stip. at 18.) These last conditions were not identified as disabling of
themselves. Relying in part on a functional capacity evaluation ("FCE") prepared by
physical therapist Christopher Wood, Dr. Fantauzzo concluded that Hayslip was still fit for
sedentary job positions. (Stip. at 19.)
Among the treatment notes submitted with Dr. Fantauzzo's report, again
relying on the FCE, is the following observation from August 14, 2018:
I do feel client is capable of sedentary work. However, will
require a job he can freely move from sit to stand and avoid
any prolonged sitting or standing. He does not need to lay
down during the course of the work shift.
(Stip. at 26.)
{¶ 15} 8. Attached to Dr. Fantauzzo's report is a prescription form dated August 14,
2018, stating as follows: "Mr. Hayslip, due to medical condition, should only be allowed to
work three days weekly." (Stip. at 16.)
{¶ 16} 9. Dr. Fantauzzo also relied on an MRI report from April 2, 2018 included
with physical therapist Wood's FCE. (Stip. at 31.) This MRI examined Hayslip's ankles and
produced the following result:
Impression:
[One] 1 commission oval bone fragment at the distal border of
the right fibula anteriorly-probably old posttraumatic in
nature. No osteochondral lesions seen. No definite
osteonecrosis, stress fracture, acute displaced fracture or
dislocation seen.
[Two] Probable old ATFL tear and at least old mild injuries of
the remaining ankle ligaments although superimposed acute to
subacute injuries cannot be excluded-particularly involving the
ligaments within the sinus tarsi.
[Three] At least mild diffuse right Achilles tendinosis with at
least mild subacute to old partial-thickness tearing of the deep
and intrasubstance fibers of the distal Achilles tendon along the
calcaneus insertion site.
No. 20AP-64 8
[Four] Old partial thickness tear of the right flexor hallucis
longus musculotendinous junction and proximal tendon
suggested. Peroneus bravis tendinosis-if not longitudinal
splitting of fibers.
(Stip. at 32-33.)
{¶ 17} 10. Johnny Alayon, DPM, provided the second attending physician report.
Dr. Alayon relied on MRIs, x-rays, and EMGs to conclude that the primary medical
condition of ankle pain was disabling and expected to last at least 12 months or more.
Dr. Alayon' s report was supported by his own progress reports, and a radiology report.
Dr. Alayon described Hayslip's disabling symptoms as bilateral ankle pain and neuralgia.
He described in his notes documented crepitus of the left ankle, unequal leg strength,
bilateral anterior and medial ankle pain, and positive Tinel's signs. (Stip. at 38-39.)
{¶ 18} 11. Although Dr. Alayon as a podiatrist furnished an opinion only regarding
the disabling condition of ankle pain, in the record here, his report is supported by
treatment notes from other providers describing Hayslip's other conditions.
{¶ 19} 12. Regarding Hayslip's shoulder complaints, a radiology report dated
September 17, 2018 prepared by Radiologist Craig George found the following:
There is degenerative change at the acromioclavicular joint.
This may contribute to impingement syndrome. The
glenohumeral joint is maintained. There is no fracture, bony
erosion, or soft tissue calcification.
(Stip. at 40.)
{¶ 20} 13. An additional MRI of Hayslip's cervical spine revealed mild degenerative
changes with a C5-C6 disc protrusion, central canal narrowing, and mild chord
compression. Similar results at C6-C7 and mild left foraminal narrowing at the C3-C4 level.
(Stip. at 64-65.) A lumbar MRI revealed similar results. (Stip. at 148.)
{¶ 21} 14. Hayslip received epidural injections in his cervical spine and pursued
chiropractic treatment for neck and low back pain. (Stip. at 48, 81.)
{¶ 22} 15. X-rays of Hayslip's knees show advanced osteoarthritis and bone-on-
bone occurrence. (Stip. at 66.) Hayslip's treating physicians with the Veteran's
Administration acknowledged the necessity of total knee replacement but refused the
surgery because of Hayslip's morbid obesity.
No. 20AP-64 9
{¶ 23} 16. STRS acknowledged Hayslip's disability application by letter dated
October 9, 2018. This outlined the initial review of his application as follows:
Your application included Attending Physician's Reports from
Drs. Alayon and Fantauzzo. Examinations for determining
eligibility for disability benefits will be assigned by the Medical
Review Board only for the conditions listed as permanently
disabling and supported with medical evidence by your
physician(s). Your attending physician(s) provided support for
the following conditions, cervical radiculopathy and ankle pain,
to be processed.
(Stip. at 171.)
{¶ 24} 17. Hayslip was examined by James Klejka, M.D., on behalf of STRS on
November 16, 2018. (Stip. at 51-55.) Dr. Klejka's report included a physical examination
and a review of Hayslip's medical records and job description. Dr. Klejka described
Hayslip's complaints as bilateral ankle pain with foot numbness and tingling, chronic low
back pain, chronic neck pain, chronic bilateral shoulder pain, bilateral hand numbness and
tingling due to carpal tunnel syndrome. (Stip. at 52.) Dr. Klejka questioned Hayslip's self-
reported pain: "He is a pleasant male with moderate to severe pain behavior that is out of
proportion to physical exam findings. He continually groans even when at rest with grunts
and groans with any movement of any body part." (Stip. at 54.) After reviewing the
previous FCE reported by Dr. Fantauzzo, Dr. Klejka noted the therapist's inconsistencies in
testing: "Specifically, on Jamar grip testing the patient can grip only 7 pounds on the right
and 1.5 pounds on left but during functional capacity evaluation could hold a 10 pound box
without dropping it." (Stip. at 54.) Based on his own examination, Dr. Klejka observed:
There is no evidence on physical examination today of a
cervical radiculopathy and he has a normal strength in the
upper limbs. Although he also complains of bilateral shoulder
pain, x-rays reveal only mild degenerative changes of the
acromioclavicular joints bilaterally. This does not appear to be
functioning disabling.
(Stip. at 55.)
Dr. Klejka acknowledged Hayslip's ankle symptoms:
Clinically, he does have [illegible] and tenderness over his
ankles with multiple tendon issues noted on MRI of his right
ankle that appear to be chronic or old and not functionally
No. 20AP-64 10
limiting. While his arthritis may be a painful condition, his
current job as a substitute teacher allows him to change
position from standing to sitting frequently. Per the patient's
report he can stand for 20-30 minutes at a time and it therefore
does not prevent him from performing his job duties.
(Stip. at 55.)
{¶ 25} Dr. Klejka further concluded that Hayslip's chronic low back pain and
osteoarthritis in his knees did not prevent him from functioning as a substitute teacher,
because the job description permitted frequent changes from sitting to standing position.
Overall, Dr. Klejka reported:
His behavior today suggests significant symptom
magnification making it difficult to gauge the veracity of his
history and subjective complaints. Furthermore, his functional
capacity evaluation confirmed he can perform sedentary level
job duties which would allow him therefore to perform the task
of a substitute teacher.
(Stip. at 55.)
Dr. Klejka ultimately concluded that Hayslip was not physically or mentally
incapacitated from his job duties for 12 continuous months from the application date.
(Stip. at 56.)
{¶ 26} 18. Three members of the STRS Medical Review Board independently
reviewed Hayslip's records and Dr. Klejka's report and produced individual
recommendations. Claire V. Wolfe, M.D., summarized Hayslip's medical records and
noted test observations indicating magnification of symptoms including "widespread non-
anatomic tenderness & pain on simulated rotation." (Stip. at 58.) Dr. Wolfe concluded that
x-rays of Hayslip's shoulders and ankles found only mild changes in the affected joints and
ligaments. (Stip. at 58.) Dr. Wolfe concluded that Hayslip had "very little objective
abnormality" and "[a]lthough he probably does have carpal tunnel syndrome, it would not
preclude teaching: He has no neurologic abnormalities from his neck/back complaints and
no significant changes that would suggest diabetic neuropathy of a degree that would
impair him from teaching. I find nothing that would preclude Mr. Hayslip from substitute
teaching." (Stip. at 58.)
No. 20AP-64 11
{¶ 27} 19. James Allen, M.D., reached similar conclusions regarding the medical
history, and summarized his findings as follows:
In conclusion, this STRS member has a number of painful
conditions including neck and ankle arthritis but an
independent medical examiner has determined that none of his
conditions preclude him from performing teaching duties. I
recommend that the independent medical examiner's report be
accepted, and that disability retirement be denied.
(Stip. at 59.)
{¶ 28} 20. Ronald Whisler, M.D., was the third Medical Review Board member to
examine Hayslip's records. He similarly concluded that Dr. Klejka had found no evidence
on examination of cervical radiculopathy and found normal strength of the upper limbs.
(Stip. at 60.) He adopted Dr. Klejka's findings that Hayslip's foot and ankle issues would
not be functionally incapacitating, nor would bilateral carpal tunnel syndrome preclude the
essential job duties of a substitute teacher. Dr. Whisler summarized as follows:
In summary, this STRS member has a history of
musculoskeletal pain determined by the independent medical
examiner not to be incapacitating to perform his duties as a
substitute teacher. I recommend that disability retirement be
denied.
(Stip. at 60.)
{¶ 29} 21. The STRS Medical Review Board duly produced a recommendation that
benefits be denied, expressed in a letter to the board by Martin Gottesman, M.D., dated
January 3, 2019. (Stip. at 61.)
{¶ 30} 22. STRS informed relator by letter dated January 3, 2019 of these results
and informed him that his case would be presented to the STRS board with the Medical
Review Board's negative recommendation. (Stip. at 174.) The board then rejected Hayslip's
application for disability benefits at its February 21, 2019 meeting and communicated its
decision to Hayslip by letter dated February 22, 2019. (Stip. at 176.)
{¶ 31} 23. Hayslip appealed the board's February 22, 2019 denial of disability
benefits with a notice of appeal received by the board on March 7, 2019. (Stip. at 180.)
{¶ 32} 24. To support his appeal, Hayslip submitted additional medical evidence,
including a report by Todd Hochman, M.D., an internist. Dr. Hochman conducted a
No. 20AP-64 12
physical exam of Hayslip and reviewed his prior medical records, opining that Hayslip was
restricted to lifting no greater than ten pounds occasionally, medically required the use of
a cane for standing or walking, and that Hayslip could sit or stand for three to six hours in
a work day, and stand or walk for up to one and one-half hours. (Stip. at 151.) Dr. Hochman
concluded that Hayslip was limited to sedentary work. (Stip. at 151.)
{¶ 33} 25. Hayslip obtained an opinion from a vocational specialist, Brett Salkin, for
an assessment of whether Hayslip's physical limitations impacted the position of substitute
teacher. Salkin opined there were no school teaching positions that could be performed at
the sedentary exertional level, and noted that a pertinent reference work, the Dictionary of
Occupational Titles, defines all teaching positions as light-duty work, not sedentary. (Stip.
at 153-54.)
{¶ 34} 26. The additional medical evidence in support of the appeal was again
referred to Dr. Klejka, who found nothing to alter his prior assessment of Hayslip's
disability. Dr. Klejka again noted the conditions cited in relator's application, chronic neck
pain with cervical and disc issues, radicular symptoms, and degenerative ankle conditions
of themselves, did not preclude Hayslip's ability to function as a substitute teacher. Dr.
Klejka again noted the other health issues, including morbid obesity, knee arthritis, and
depression. (Stip. at 160.) Dr. Klejka specified that his opinion was limited to the specific
conditions cited in the application for disability:
Based on the review of the new evidence above, regarding his
application for disability based only on cervical radiculopathy
and ankle pain, it is my medical opinion that Mr. Hayslip can
perform the essential duties of his job as a substitute teacher
and therefore he should not be medically retired.
(Stip. at 161.)
{¶ 35} 27. The Medical Review Board again submitted a memorandum from
Dr. Gottesman dated September 8, 2019 noting the Medical Review Board's continued
recommendation that disability benefits be denied. (Stip. at 162-65.)
{¶ 36} 28. The STRS review panel conducted a hearing on September 18, 2019. The
board again denied disability benefits by order dated September 19, 2019. The board stated
in its decision as follows:
No. 20AP-64 13
Based on the Disability Review Panel's conclusion and review
of the entire medical record, on September 19, 2019, it was
moved by Ms. Walters, seconded by Mr. Rhodes that the
previous position of the Retirement Board be affirmed and that
disability benefits be denied.
(Stip. at 2.)
{¶ 37} 29. Hayslip filed his complaint in mandamus with this court on February 3,
2020.
Discussion and Conclusions of Law:
{¶ 38} A relator seeking a writ of mandamus addressed to a pension board, as with
other administrative agencies, must establish a clear legal right to the relief sought, a clear
legal duty on the part of the respondent to perform the requested act, and the lack of an
adequate remedy in the ordinary course of law. State ex rel. Riddell v. State Teachers
Retirement Bd., 10th Dist. No. 13AP-660, 2014-Ohio-1646, ¶ 20.
{¶ 39} By statute, the determination of whether a member is entitled to disability
retirement benefits is solely within the province of the STRS board. State ex rel. Hulls v.
State Teachers Retirement Bd., 113 Ohio St.3d 438, 2007-Ohio-2337, ¶ 26; State ex rel.
Kelly v. State Teachers Retirement Sys. of Ohio, 10th Dist. No. 11AP-527, 2012-Ohio-4613,
¶ 9 ("The board is deemed to know what a teaching job entails and whether the recipient is
disabled from it."). "Because the final retirement-board decision is not appealable,
mandamus is available to correct an abuse of discretion by the board in its determination
concerning disability-retirement benefits." Hulls at ¶ 27. "An abuse of discretion occurs
when a decision is unreasonable, arbitrary, or unconscionable." State ex rel. Altman-Bates
v. Pub. Emps. Retirement Bd., 148 Ohio St.3d 21, 2016-Ohio-3100, ¶ 22. "The board has
not abused its discretion if there is 'some evidence' to support its determination." Id.; State
ex rel. Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio St.3d 111, 2012-Ohio-46, ¶ 2;
State ex rel. Ewart v. State Teachers Retirement Sys. Bd. of Ohio, 10th Dist. No. 18AP-826,
2019-Ohio-2459, ¶ 23-24.
{¶ 40} Members of STRS who are unable to perform their duties for at least 12
months from receipt of their completed application because of a physical or mental
condition may apply for disability benefits. R.C. 3307.62(C). The STRS board will appoint
No. 20AP-64 14
a medical review board to address disability applications. Ohio Adm.Code 3307:1-7-
02(A)(3). Once an application is submitted, an independent medical examiner will evaluate
the applicant and prepare a report for the board. R.C. 3307.62(C). If the independent
medical examiner determines the applicant is mentally or physically incapacitated for 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 and the board
agrees, STRS will grant the application for disability benefits. Ohio Adm.Code 3307:1-7-
02(A)(3); R.C. 3307.62(F); State ex rel. Castle v. State Teachers Retirement Sys., 10th Dist.
No. 15AP-845, 2016-Ohio-1245, ¶ 50. "Simply put, the statute requires the independent
physician to determine whether the applicant is mentally or physically incapacitated for
work by a disabling condition for 12 continuous months after filing the application." State
ex rel. Menz v. State Teachers Retirement Bd., 144 Ohio St.3d 26, 2015-Ohio-2337, ¶ 20.
{¶ 41} Hayslip bears the burden in this case of demonstrating that Dr. Klejka's
report does not constitute "some evidence" to support the board's decision. Hayslip argues
that Dr. Klejka and the Medical Review Board members should not have limited their
assessment of disability to the two conditions of cervical radiculopathy and ankle pain, and
should have considered the many other physical limitations revealed in the medical
records. Hayslip also argues that Dr. Klejka never reconciled the inconsistency between
Hayslip's uncontradicted restriction to sedentary work and the more demanding
requirements of work as a substitute teacher.
{¶ 42} An STRS member applying for disability benefits is entitled to receive them
if the applicant 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 board's receipt of an application." R.C. 3307.62(C). Hayslip
challenges Dr. Klejka's assessment and the board's determination that the sole disabling
conditions that would be considered were cervical radiculopathy and disabling and
degenerative ankle conditions. Hayslip points to a myriad of other disabling physical
conditions described in his medical evidence, including severe arthritic conditions in his
knees, the need to use a cane, morbid obesity, degenerative shoulder joint disease, GERD,
and diabetes. Ohio Adm.Code 3307:1-7-01(B) sets the requirement for a disability
application, including an attending physician's report based upon an examination
No. 20AP-64 15
conducted within two months of the report and supporting medical documentation. Ohio
Adm.Code 3307:1-7-01(C) further develops the guidelines for the physician's report,
specifying that the physician should have established a "therapeutic relationship" with the
applicant and completed a report that the applicant is "incapacitated for the performance
of duty by a disabling condition that is presumed to be permanent." Hayslip, in this case,
submitted reports from his two attending physicians who certified two disabling
conditions: cervical radiculopathy and ankle pain. Hayslip now argues the commission
was bound to consider all the other medical circumstances related in the records. Hayslip
relies on State ex rel. Bruce v. State Teachers Retirement Bd. of Ohio, 153 Ohio App.3d
589, 2003-Ohio-4181 (10th Dist.) for the proposition that STRS is required to expand the
scope of medical inquiry and examine all the medical evidence, whether certified as
disabling or not by the attending physician's report. Bruce, to the contrary, states only that
STRS has discretion to expand the scope of medical inquiry but is in no way required to do
so.
{¶ 43} As required by statute and regulation, the board's independent medical
expert, Dr. Klejka, personally examined Hayslip and reviewed his records. In addition to
the limited basis for disability announced in Hayslip's application, and based on those
designated conditions, Dr. Klejka performed the independent medical examination and
record review. Dr. Klejka's report indicated a comprehensive physical examination and
assessment of all Hayslip's conditions. Even considering all the conditions, and the report
does not, until its final conclusions expressly limit its examination, Dr. Klejka ultimately
determined that relator could perform his job as a substitute teacher.
{¶ 44} Based on examination and record review, Dr. Klejka determined that Hayslip
suffered from cervical stenosis, C6 radiculopathy, bilateral ankle pain with arthritic
changes, tendinitis noted of the right ankle, probable bilateral carpal tunnel syndrome,
chronic low back pain, probable osteoarthritis of the knees with crepitus audible on physical
exam, overall chronic pain syndrome with depression, well balanced by probable symptom
magnification. (Stip. at 55.) Dr. Klejka concluded that Hayslip, when working, would need
to change position from standing to sitting frequently, and was in fact limited to sedentary
job duties, as stated in the FCE found in the record. Dr. Klejka's report constitutes some
evidence to support the board's decision.
No. 20AP-64 16
{¶ 45} With respect to the conclusion that an applicant who has a declared
functional capacity of work activity no greater than sedentary work could perform
substitute teacher duties classified as light duty, the board does not express an argument to
the contrary.
{¶ 46} Dr. Klejka did not declare Hayslip to be capable of either sedentary or light-
duty work, but framed his opinion of Hayslip's capacity to work exclusively in terms of the
defined alternate sitting and standing requirements for a substitute teacher as presented in
the school system's job description. The vocational specialist, Brett Salkin, opined to the
contrary that no teaching positions can be performed at the sedentary exertional level,
based upon definitions found in the Dictionary of Occupational Titles, which describes all
teaching positions as light-duty work. Dr. Klejka's medical record review noted and did not
discard the FCE evaluation undertaken in August 2018, which restricted Hayslip to
sedentary work.
{¶ 47} The magistrate finds the actual job duties described by the employer, which
were not contradicted by any evidence in the record, are the substantive standard in this
case and supersede any formal classification as "light duty" or "sedentary duty" for purposes
of ascertaining disability. Dr. Klejka opined, and the board's Medical Review Board agreed,
that Hayslip can perform the essential duties of his job as substitute teacher. There is some
evidence in the record to support the board's conclusion, and it is therefore the magistrate's
decision and recommendation that the writ of mandamus be denied based on the absence
of any abuse of discretion on the part of the board.
/S/ MAGISTRATE
MARTIN L. DAVIS
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),
No. 20AP-64 17
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).