State ex rel. Vancleave v. School Emps.

• Decision Date: 12 November 2008
• Docket Number: No. 2007-2442.,2007-2442.
• Citation: 2008 Ohio 5377,120 Ohio St.3d 261,898 N.E.2d 33
• Parties: The STATE ex rel. VANCLEAVE, Appellant, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM, Appellee.
• Court: Ohio Supreme Court

898 N.E.2d 33

120 Ohio St.3d 261

2008-Ohio-5377

The STATE ex rel. VANCLEAVE, Appellant, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM, Appellee.

No. 2007-2442.

Supreme Court of Ohio.

Submitted June 3, 2008.

Decided November 12, 2008.

Fell & Marcus Co., L.P.A., and George N. Fell II, Toledo, for appellant.

Nancy Hardin Rogers, Attorney General, and Todd A. Nist, Assistant Attorney General, for appellee.

PER CURIAM.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus to compel appellee, School Employees Retirement System ("SERS"), to vacate its decision denying the application of appellant, Susan E. VanCleave, for disability-retirement benefits. Because we hold that SERS did not abuse its discretion in denying VanCleave's application, we affirm.

SERS Membership and Employment

{¶ 2} VanCleave has been a member of SERS since 1985. She was originally employed by the Washington Local Schools near Toledo as a school bus driver. She became a custodian at Monac Elementary School in February 1996 and received good performance evaluations in that position.

{¶ 3} In July 1996, while she was cleaning a bathroom wall at the school, VanCleave fell off a ladder, landing directly on her buttocks, lower back, and legs. As a result of the pain she experienced due to the fall, VanCleave left work in April 1998.

Application for Disability-Retirement Benefits and Initial Denial of Benefits and Appeal

{¶ 4} VanCleave filed an application for disability-retirement benefits¹ with SERS in June 2000. Her treating physician, Richard A. Koepke, D.O., certified that VanCleave "is physically and/or mentally incapacitated for a period of at least 12 months and is unable to perform the duty for which [she was] formerly responsible as a school employee." (Emphasis sic.) Dr. Koepke listed VanCleave's primary disabling conditions as "[h]erniated disc L4-5, degenerative disc disease lumbar spine, [and] bilateral sciatic neuralgia," and her underlying condition as "[f]ibromyalgia."

{¶ 5} SERS ordered a medical examination of VanCleave by Claire V. Wolfe, M.D. Dr. Wolfe conducted a physical examination of VanCleave in October 2000. Dr. Wolfe noted that VanCleave complained of constant pain to her lower back, right buttock, and leg. Dr. Wolfe further found upon her examination of VanCleave that "[p]alpitation revealed profound tenderness in the anterior chest bilaterally, moderate tenderness in the right lateral epicondyle and mild on the left, marked tightness in the left upper trapezius, mild tightness in the levators and cervical paraspinals. She was moderately tender in the lower back. She was severely tender with palpitation in the right buttock, moderately on the left. Both greater trochanders were tender, as were the medial knees."

{¶ 6} Dr. Wolfe diagnosed VanCleave with "[f]ibromyalgia syndrome" and "[l]umbar degenerative disk disease without active radiculopathy" and included the following in her recommendations:

{¶ 7} "Ms. Crooks [n.k.a. VanCleave] has MRI documentation of lumbar degenerative disk disease with a bulge at L4-5 primarily to the left. Almost all of her symptoms are to the right. After several years of symptoms, she has no objective neurologic deficits. She has had normal electrodiagnostic studies in the past. Her low back symptoms are most compatible with her fibromyalgia diagnosis. I do not find anything on today's examination that would preclude her from continuing work as a custodian."

{¶ 8} Based upon this examination, Dr. Wolfe certified that VanCleave "is not physically * * * incapacitated for a period of at least 12 months and is able to perform the duty for which [she was] responsible * * * as a school employee." (Emphasis sic.)

{¶ 9} An SERS medical advisory committee reviewed VanCleave's application and the evidence and concluded that VanCleave was not permanently disabled from performing her duties as a school custodian. The committee recommended that VanCleave's application be denied, and SERS adopted the committee's recommendation and denied the application.

{¶ 10} VanCleave appealed the decision, requested a personal appearance before the SERS retirement board, and submitted additional documentation in support of her appeal. Included in her additional submission was a letter from Dr. Koepke in which he noted that he had examined VanCleave in February 2001 and diagnosed her as having (1) degenerative disc disease L4-5, (2) chronic spinal sprain, (3) fibromyalgia, which was confirmed by multiple evaluations by specialists and was created or significantly aggravated by her July 1996 work injury, and (4) sciatic neuralgia. Dr. Koepke concluded that VanCleave could not return to her previous work as a janitor. Dr. Koepke noted that although VanCleave had undergone various treatments, including physical therapy, she remained unable to perform her previous duties.

{¶ 11} The medical advisory committee found that the additional submissions did not constitute additional objective medical evidence as defined in former Ohio Adm. Code 3309-1-41. The committee recommended that VanCleave's appeal be denied. In March 2001, SERS notified VanCleave that its retirement board had upheld its original decision to deny her request for disability-retirement benefits. SERS also denied her request for a personal appearance before the board.

First Mandamus Case and Remand for Appeal Hearing

{¶ 12} In September 2002, VanCleave filed a mandamus action in the Court of Appeals for Franklin County challenging the denial by the SERS board of her application for disability-retirement benefits. By agreement of the parties, the mandamus action was dismissed and the matter was remanded for an appeal hearing before the board.

{¶ 13} Before the hearing, VanCleave submitted updated records and reports in support of her application. This additional information included a May 2003 letter by Dr. Koepke, in which he diagnosed VanCleave as having (1) chronic spine sprain, (2) degenerative disc disease with previous herniation, (3) bilateral sciatic neuralgia, (4) fibromyalgia, (5) myospasm and myositis, and (6) chronic neuropathic pain syndrome. Dr. Koepke concluded that VanCleave's pain was "too disabling [for her] to perform her duties" as either a janitor or bus driver.

{¶ 14} The documentation also included several reports of Allan G. Clague, a neurologist who had diagnosed VanCleave with neuropathic pain syndrome and was treating her for that condition. Dr. Clague determined that VanCleave could not return to her former position and that because she could perform the required duties for only short periods of time, she was totally and permanently medically disabled.

{¶ 15} VanCleave also submitted an April 2003 psychiatric evaluation of her by Melanie Thombre, M.D, diagnosing her as suffering from secondary mental disability, i.e., cognitive disorder, sleep disorder due to pain, and mood disorder due to chronic pain. Dr. Thombre concluded that VanCleave is totally and permanently disabled for her previous work as a school custodian and bus driver.

{¶ 16} At the hearing, VanCleave and her husband testified that she could not perform her previous position of school custodian. The medical advisory committee thereafter ordered that VanCleave be reexamined by Dr. Wolfe. Dr. Wolfe reexamined her in September 2003 and diagnosed VanCleave as suffering from (1) fibromyalgia syndrome, (2) depression and chronic anxiety, and (3) lumbar degenerative disease without acute radiculopathy.

{¶ 17} Dr. Wolfe again concluded that VanCleave "is not physically * * * incapacitated for a period of at least 12 months from the date of application and is able to perform the duty for which [she was] responsible * * * as a school employee." (Emphasis sic.) Dr. Wolfe based her conclusion that VanCleave was not physically incapacitated on her opinion that although VanCleave had fibromyalgia, she was not precluded from working:

{¶ 18} "People with fibromyalgia are, in fact, generally distressed. The question of disability is more difficult to assess because it is a subjective one. I do not believe the fibromyalgia is functionally disabling, even for Mrs. VanCleave's job as a custodian. However, every physician that she has seen has told her that she cannot return to that, that her pain complaints will only be worse with that type of activity and it would be therefore very difficult, I think, for her to believe that she could return to such activity even if she went through a work hardening program. It is difficult when you are the treating physician to be `objective' and not take the subjective pain into consideration. However, based on my review of all the data and the examinations, I do not believe there are objective abnormalities that would preclude Mrs. VanCleave's work." (Emphasis sic.)

{¶ 19} The medical advisory committee relied on Dr. Wolfe's new medical evaluation and recommended that its original decision to deny VanCleave's application for disability-retirement benefits be upheld and that the appeal be denied. In November 2003, the SERS retirement board upheld its decision to deny the application.

Second Mandamus Action

{¶ 20} In December 2006, more than three years after the retirement board's decision, VanCleave filed a complaint in the Court of Appeals for Franklin County for a writ of mandamus to compel SERS to pay disability-retirement benefits to her. In the alternative, VanCleave requested a writ of mandamus ordering the SERS board to vacate its denial of benefits and state its specific bases for its denial, including an explanation of how VanCleave's mental condition was determined without evaluation by a board-appointed psychologist or psychiatrist. VanCleave further requested, in the alternative, a writ of mandamus ordering the SERS board to revoke its denial of her application and to have her evaluated by a board-appointed psychologist or psychiatrist, and ordering that any board decision thereafter specify the...