State ex rel. Cydrus v. Ohio Pub. Employees Ret. Sys.

• Decision Date: 02 December 2010
• Docket Number: No. 2010-0707.,2010-0707.
• Citation: 938 N.E.2d 1028,2010 -Ohio- 5770
• Parties: The STATE ex rel. CYDRUS, Appellant, v. OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM et al., Appellees.
• Court: Ohio Supreme Court

938 N.E.2d 1028 2010 -Ohio- 5770 The STATE ex rel. CYDRUS, Appellant, v. OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM et al., Appellees. No. 2010-0707. Supreme Court of Ohio. Submitted Oct. 12, 2010. Decided Dec. 2, 2010.

Charles Zamora Co., L.P.A., and Charles Zamora, Columbus, for appellant.

Richard Cordray, Attorney General, and Dennis P. Smith Jr. and Hilary R. Damaser, Assistant Attorneys General, for appellees.

PER CURIAM.

*258 {¶ 1} This is an appeal from a judgment denying a writ of mandamus to compel appellees, Ohio Public Employees Retirement System and Ohio Public Employees Retirement Board, to vacate their order terminating the disability-retirement benefits of appellant, Patricia D. Cydrus, and to issue a new order finding her entitled to benefits, or in the alternative, to compel appellees to issue a new order adequately explaining the reasons for the termination of benefits. Because the retirement board did not abuse its discretion in terminating Cydrus's disability-retirement benefits, we affirm the judgment denying the writ.

Facts

{¶ 2} Patricia D. Cydrus was employed as an executive secretary by the Ohio Department of Youth Services. While employed with the department, Cydrus was a contributing member of appellee Ohio Public Employees Retirement System. In 1999, Cydrus was involved in an automobile accident and later experienced chronic headaches.

{¶ 3} A December 2000 MRI of Cydrus's brain revealed a "Chiari I Malformation." "Arnold Chiari Malformation Type I" is a "congenital abnormality * * * characterized by the underdevelopment of the bone at the base of the skull (posterior cranial fossa) and overcrowding of the normally developed hindbrain." Lawson v. United States (D.Md.2006), 454 F.Supp.2d 373, 378, citing Grossman & Yousem, Neuroradiology: The Requisites (2003) 436. According to Cydrus's treating physician at that time, Lawrence P. Frick, M.D., this condition "allows a portion of the brain to herniate through the skull base which then applies pressure on that part of the brain as well as obstructs the normal flow of cerebrospinal fluid." In January 2002, Cydrus underwent surgery to correct the problem, but she continued to experience severe headaches.

{¶ 4} Almost a year later, Cydrus applied for disability-retirement benefits from the public employees retirement system. She stated that she was incapacitated from her duties as an executive secretarybecause of severe muscle spasms, headaches, and continuous symptoms, which required medications that did not help her and which resulted in daily pain, poor balance, and sensitivity to light. Cydrus supported her application with Dr. Frick's report, which stated that "her condition is permanently disabling in that she has not responded to all therapy so far and it has been almost one year since her surgery."

{¶ 5} The retirement board initially denied Cydrus's application based in part on an independent medical examination. On appeal and following a second examination, the board approved the application conditioned upon her reexamination in a year. In following years, after annual independent medical examinations and a record review, the retirement board approved the continuation of disability-retirement benefits conditioned upon Cydrus's annual reexamination.

*259 {¶ 6} In 2008, the retirement board ordered Cydrus to be examined by a psychiatrist and a neurologist to determine whether she remained permanently disabled. The psychiatrist, Richard H. Clary, M.D., examined her and concluded that "her depression alone is not work prohibitive and does not cause long term disability." The neurologist, Gerald S. Steiman, M.D., examined her and observed that she had "tenderness throughout the paraspinal, lateral neck and trapezius muscles but no evidence of muscle guarding" and "no evidence of a painful tender or trigger point in the occipital, low cervical, trapezius, or supraspinatus regions." Based on his examination and review of her medical records and history, Dr. Steiman concluded that Cydrus is not permanently disabled from the performance of her position as a public employee.

{¶ 7} James R. Moore, M.D., reviewed the results of the examinations and recommended that the retirement board terminate Cydrus's disability-retirement benefits based on "insufficient objective evidence of permanent disability due to chronic daily headache." On November 13, 2008, the retirement board accepted the medical advisor's recommendation and terminated Cydrus's disability-retirement benefits. It concluded that "[b]ased upon all the medical information and recommendations," Cydrus was "no longer considered to be permanently disabled from the performance of duty as Executive Secretary," because "there is insufficient objective evidence of permanent disability due to chronic daily headache." The retirement board notified Cydrus by letter that she could appeal the board's determination by filing a written notice of intent to provide additional objective medical evidence within 30 days and submitting that evidence within 45 days from her written notice. See also Ohio Adm.Code 145-2-23(B)(3) and (C).

{¶ 8} Cydrus gave written notice of her intent to appeal the retirement board's decision terminating her disability-retirement benefits on December 3, 2008. Within 45 days, her primary-care physician, Jennifer E. Sylvester, M.D., submitted her report concluding that Cydrus "is considered totally disabled due to her headaches and the associated symptoms related to her treatment measures for these headaches." Dr. Sylvester noted that "[i]t has been shown on imaging studies that she still has a protrusion of the cerebellar tonsil that was initially documented at 9.7-mm, now has progressed to 14-mm through the foramen magnum. She was seen by a new neurosurgeon, Dr. Bonasso, who at this time, feels that she is stable, but could progress in the future." The imaging report cited by Dr. Sylvester is included in the board's files, but does not bear a time-stamp showing when the boardreceived it and instead includes a facsimile notation that it was received by the board on March 9, 2009, after the deadline for submitting additional evidence had passed.

{¶ 9} On January 20, 2009, Maurice C. Mast, M.D., a medical advisor for the board, recommended that the retirement board terminate Cydrus's disability-retirement*260 benefits. Dr. Mast noted in his recommendation that he had "reviewed the results of the recent examination(s) performed on" Cydrus, and that "[b]ased on the findings presented there is insufficient objective evidence of permanent disability due to [n]o additional new information." On that same day, the retirement board upheld its previous decision to discontinue Cydrus's disability-retirement benefits. The board found that there was insufficient objective evidence of permanent disability and that Cydrus had provided no new information. The board stated that its decision was final.

{¶ 10} In June 2009, Cydrus filed a complaint in the Court of Appeals for Franklin County for a writ of mandamus to compel the retirement board and the retirement system to vacate the order terminating her disability-retirement benefits and to issue a new order finding her entitled to these benefits. In the alternative, Cydrus requested a writ of mandamus directing that the retirement board and the retirement system issue a new order adequately explaining its reasons for the decision. After appellees filed an answer and the parties submitted a copy of the administrative record and their briefs, the court of appeals magistrate issued a decision recommending that the court deny the writ of mandamus. Cydrus submitted objections to the magistrate's decision. On March 23, 2010, the court of appeals overruled her objections, adopted the magistrate's decision, and denied the writ. State ex rel. Cydrus v. Ohio Pub. Emps. Retirement Sys., Franklin App. No. 09AP-595, 2010-Ohio-1143, 2010 WL 1060624.

{¶ 11} This cause is now before us on Cydrus's appeal as of right.

Legal Analysis

A. Mandamus—General Standard

{¶ 12} Cydrus requests extraordinary relief in mandamus, challenging the retirement board decision terminating her disability-retirement benefits. "[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. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 14. The determination of whether a retirement-system member is entitled to the continued receipt of disability-retirement benefits is within the exclusive authority of the retirement board, R.C. 145.362, and the board's denial of an appeal from the termination of these benefits is final and not subject to appeal. See Ohio Adm.Code 145-2-23(C)(3).

{¶ 13} Because there is no right to appeal the retirement board's decision terminating disability-retirement benefits, mandamus is an appropriate remedy. *261 State ex rel. Pontillo v. Pub. Emps. Retirement Sys. Bd., 98 Ohio St.3d 500, 2003-Ohio-2120, 787 N.E.2d 643, ¶ 23; State ex rel. Morgan v. State Teachers Retirement Bd., 121 Ohio St.3d 324, 2009-Ohio-591, 904 N.E.2d 506, ¶ 20.

B. Explanations of Terminations

{¶ 14} Cydrus first addresses her request for a writ of mandamus to compel the retirement board to issue a new decision explaining why it had terminated her disability-retirement benefits.

{¶ 15} "It is axiomatic that in mandamus proceedings, the creation of the legal duty that a relator seeks to enforce isthe distinct function of the legislative branch of government, and courts are not authorized to create the legal duty enforceable in mandamus." (Emphasis deleted.) Pipoly, 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. There is no statute imposing a duty on the retirement board to explain its decision terminating disability-retirement benefits.

{¶ 16} In addition, although former Ohio Adm.Code 145-11-02 specified that the retirement board...