[Cite as State ex rel. Cydrus v. Ohio Pub. Emps. Retirement Sys., 127 Ohio St.3d 257, 2010-
Ohio-5770.]




    THE STATE EX REL. CYDRUS, APPELLANT, v. OHIO PUBLIC EMPLOYEES
                     RETIREMENT SYSTEM ET AL., APPELLEES.
        [Cite as State ex rel. Cydrus v. Ohio Pub. Emps. Retirement Sys.,
                       127 Ohio St.3d 257, 2010-Ohio-5770.]
Public employees — Disability retirement — Termination of benefits — Writ of
        mandamus to restore benefits denied — Retirement board has no duty to
        explain reasons for termination — Lack of such duty does not violate
        separation of powers or due process — Board’s decision to terminate
        benefits was not abuse of discretion.
 (No. 2010-0707 — Submitted October 12, 2010 — Decided December 2, 2010.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 09AP-595, 2010-Ohio-1143.
                                 __________________
        Per Curiam.
        {¶ 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
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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 secretary because 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.




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        {¶ 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.,



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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 board received 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 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




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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.
       {¶ 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.
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.



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       {¶ 15} “It is axiomatic that in mandamus proceedings, the creation of the
legal duty that a relator seeks to enforce is the 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 must state “its basis of denial” of disability-retirement
benefits, that administrative rule was repealed on January 1, 2003, and the new
version of the rule has no such requirement. Ohio Adm.Code 145-2-23. See
Hamby v Ohio Pub. Emps. Retirement Sys., Franklin App. No. 08AP-298, 2008-
Ohio-5068, ¶ 17; 2002-2003 Ohio Monthly Record 1304.
       {¶ 17} Therefore, the retirement board had no duty under statute or
administrative rule to specify the evidence it relied upon or to explain its reasons
for terminating Cydrus’s disability-retirement benefits. See, e.g., State ex rel.
Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307,
902 N.E.2d 953, ¶ 23.
       {¶ 18} Nevertheless, Cydrus argues that the retirement board’s duty to
specify the evidence it relied upon and to explain its reasons for its decision arises
from constitutional considerations of separation of powers and due process.
       {¶ 19} The retirement system and retirement board’s claim that Cydrus
failed to raise her separation-of-powers argument in the court of appeals is
incorrect. She raised her separation-of-powers argument in her objections to the
magistrate’s decision.
       {¶ 20} Appellees next argue that because both constitutional claims were
not raised in any complaint or amended complaint and they did not consent to
their consideration, Cydrus waived both claims. Although we “need not address”




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the merits of a constitutional claim on appeal when it is not appropriate, we have
not held that a court is precluded from considering the merits of such claims if the
opposing parties have had the opportunity to fully respond. See State ex rel. Van
Dyke v. Pub. Emps. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, 793
N.E.2d 438, ¶ 42.
       {¶ 21} In contrast, the court of appeals in this case exercised its discretion
by addressing the merits of some of Cydrus’s constitutional claims, and the
retirement system and retirement board have briefed them.            Therefore, we
likewise address the merits.
                               1. Separation of Powers
       {¶ 22} Cydrus first claims that insofar as Ohio Adm.Code 145-2-23(C)(3)
permits the retirement board to terminate disability-retirement benefits without
specifying its reasons, it violates the separation-of-powers doctrine by abrogating
the plenary power of the judiciary to provide a meaningful review of the board’s
decisions. “While Ohio, unlike other jurisdictions, does not have a constitutional
provision specifying the concept of separation of powers, this doctrine is
implicitly embedded in the entire framework of those sections of the Ohio
Constitution that define the substance and scope of powers granted to the three
branches of state government.” S. Euclid v. Jemison (1986), 28 Ohio St.3d 157,
158-159, 28 OBR 250, 503 N.E.2d 136. “The administration of justice by the
judicial branch of the government cannot be impeded by the other branches of the
government in the exercise of their respective powers.” State ex rel. Johnston v.
Taulbee (1981), 66 Ohio St.2d 417, 20 O.O.3d 361, 423 N.E.2d 80, paragraph one
of the syllabus.
       {¶ 23} But administration of justice is not impeded by the lack of a statute
or rule requiring the board to explain the reasons for its denial or termination of
disability-retirement benefits. Reviewing an administrative record in a mandamus
proceeding in such a case is “not any more burdensome than reviewing a



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summary judgment entered by a trial court without a detailed opinion. See Civ.R.
52.” Pipoly, 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 21.
       {¶ 24} “Although it may be preferable from a policy standpoint that a
retirement board explain its reasoning for its decision, the General Assembly is
the final arbiter of public policy.” State ex rel. VanCleave v. School Emps.
Retirement Sys., 120 Ohio St.3d 261, 2008-Ohio-5377, 898 N.E.2d 33, ¶ 27. As
we recently observed in rejecting a separation-of-powers claim, “[i]t is not the
role of the courts ‘to establish legislative policies or to second-guess the General
Assembly’s policy choices.’ ” Stetter v. R.J. Corman Derailment Servs., L.L.C.,
125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch v.
Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212.
                                   2. Due process
       {¶ 25} Cydrus also claims that due process requires a more detailed
retirement board decision. This court has already rejected a similar claim that the
School Employees Retirement System had a duty based on procedural due
process to identify the evidence it relied upon and to briefly explain its reasons for
denying disability-retirement benefits. VanCleave, 120 Ohio St.3d 261, 2008-
Ohio-5377, 898 N.E.2d 33, ¶ 23. We held that “[e]ven if it were assumed that
[the employee] has a property interest in a disability-retirement benefit, she has
not demonstrated in this case that she did not receive due process regarding her
claim for that benefit.” Id. at ¶ 31. We determined that the following factors
established that she had received the requisite due process:           (1) after her
application for disability benefits was denied, she sought reconsideration of that
decision and obtained a personal appearance before the board to present her
position, (2) after the hearing, the retirement system medical advisory committee
requested and received another medical evaluation, (3) after the board upheld its
original decision to deny benefits, she had the opportunity to obtain the medical
evaluations and the opinion of the medical advisory committee members and to




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argue in her subsequent mandamus action that the board had abused its discretion
in relying on one of the medical reports. Id. at ¶ 31, citing State ex rel. Haylett v.
Ohio Bur. of Workers’ Comp. (1999), 87 Ohio St.3d 325, 332-333, 720 N.E.2d
901. See also Mathews v. Eldridge (1976), 424 U.S. 319, 334-335, 96 S.Ct. 893,
47 L.Ed.2d 18 (in determining what process is due, factors include the value, if
any, of additional procedural safeguards).
       {¶ 26} As in VanCleave, Cydrus received the requisite due process: (1)
after the retirement board initially decided to terminate her disability-retirement
benefits, the board notified her of its decision and the availability of appeal, (2)
she was given the opportunity to submit to the board additional objective medical
evidence in support of her appeal, and she did so by providing Dr. Sylvester’s
report, (3) after the retirement board denied her appeal and upheld its decision
terminating her benefits, she was able to challenge the decision in this mandamus
case, and (4) the medical advisors’ recommendations and the board’s decisions
were available to her and indicated reliance on the examination reports by Dr.
Steiman and Dr. Clary. Indeed, unlike the claimant in VanCleave, Cydrus did not
have the opportunity for a personal appearance upon reconsideration, and the
board did not request another medical evaluation for her appeal. But these are
insignificant distinctions. Cydrus raised claims both in the court of appeals and in
this appeal that the retirement board had abused its discretion by relying on Dr.
Steiman’s report and ignoring Dr. Sylvester’s report. As in VanCleave, it is
unclear here how Cydrus’s mandamus claim has been prejudiced by the lack of a
more descriptive retirement board decision.
       {¶ 27} Therefore, neither the separation-of-powers doctrine nor due
process requires that the retirement board support its decision terminating
Cydrus’s disability-retirement benefits by specifically identifying the evidence it
relied upon and explaining the reasons for its decision. The retirement board does
not have a clear legal duty in this regard, and Cydrus is not entitled to the



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requested extraordinary relief in mandamus to compel the board to provide a more
detailed decision.
                     C. Evidence Supporting Board’s Decision
       {¶ 28} To be entitled to the requested writ of mandamus to compel the
retirement board to vacate its decision terminating her disability-retirement
benefits, Cydrus must establish that the board abused its discretion. See State ex
rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254,
899 N.E.2d 975, ¶ 25. To prove an abuse of discretion, she must show that the
retirement board’s decision was unreasonable, arbitrary, or unconscionable. Id.
In addition, the retirement board does not abuse its discretion if there is sufficient
evidence to support its determination. State ex rel. Lucas Cty. Bd. of Mental
Retardation & Dev. Disabilities v. Pub. Emps. Retirement Bd., 123 Ohio St.3d
146, 2009-Ohio-4694, 914 N.E.2d 1038, ¶ 16.
       {¶ 29} Cydrus asserts that the retirement board abused its discretion by
relying on Dr. Steiman’s report in its decision. She dismisses the report as
irreconcilable with the ongoing medical reports of her treating physicians and a
prior report of a retirement system medical advisor. She describes the report as
“complete nonsense” for opining that her headaches were not work-prohibitive
because they were subjective.
       {¶ 30} These assertions lack merit. Nothing in R.C. 145.362 or Ohio
Adm.Code 145-2-23 requires the retirement board to credit the findings of either
Cydrus’s treating physicians or one of the consultative physicians over the
findings of a different independent medical examiner. See, e.g., Pipoly, 95 Ohio
St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 26 (construing an analogous
retirement-disability provision).    Notably, other doctors who had examined
Cydrus in the past and whose reports are also part of the retirement board’s
records expressed opinions that were similar to those held by Dr. Steiman. And
Dr. Steiman’s emphasis on the lack of objective medical evidence to support




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Cydrus’s medical claims is not fatal.        “[E]ven for medical conditions with
symptoms that are often unsupported by objective medical evidence, ‘subjective
complaints are not conclusive of disability, and objective medical evidence is still
relevant to a determination of the severity of the condition.’ ” Morgan, 121 Ohio
St.3d 324, 2009-Ohio-591, 904 N.E.2d 506, ¶ 23, quoting VanCleave, 120 Ohio
St.3d 261, 2008-Ohio-5377, 898 N.E.2d 33, ¶ 47.
       {¶ 31} Therefore, the retirement board did not abuse its discretion by
relying on Dr. Steiman’s medical report in terminating Cydrus’s disability-
retirement benefits.   It constituted sufficient evidence to support the board’s
determination.
                             D. The Board’s Finding
       {¶ 32} Cydrus claims that the retirement board also abused its discretion
by failing to consider the new additional medical evidence she submitted in
support of her appeal of the board’s termination of her disability-retirement
benefits. She asserts that the retirement board ignored the report of her treating
physician, Dr. Sylvester.     Ohio Adm.Code 145-2-23(B)(3) requires that a
recipient of disability-retirement benefits whose benefits have been terminated
support an appeal of the decision with “additional objective medical evidence,”
Ohio Adm.Code 145-2-23(B)(3)(b), which is defined as “current medical
evidence documented by a licensed physician specially trained in the field of
medicine covering the illness or injury for which the disability is claimed [that]
has not been considered previously by the retirement board.” Ohio Adm.Code
145-2-23(B)(3)(d).
       {¶ 33} The board, however, specified that the decision was “[b]ased upon
all the medical information and recommendations.” It was free to discount Dr.
Sylvester’s report because the imaging results she cited were not provided to the
board until after the deadline for submission under Ohio Adm.Code 145-2-




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23(B)(3) had expired. As Dr. Sylvester noted, the neurosurgeon who issued the
new imaging report concluded that Cydrus’s medical condition was stable.
       {¶ 34} Under these circumstances, the retirement board did not abuse its
discretion by determining that Cydrus had not submitted sufficient objective
evidence of permanent disability entitling her to the continuation of her disability-
retirement benefits. She did not submit sufficient evidence to overcome the
presumption that the retirement board acted properly by considering and rejecting
Dr. Sylvester’s recommendation. See State ex rel. Toledo Blade Co. v. Seneca
Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 29,
quoting State ex rel. Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581,
590, 50 O.O. 465, 113 N.E.2d 14 (“ ‘in the absence of evidence to the contrary,
public officers, administrative officers and public boards, within the limits of the
jurisdiction conferred by law, will be presumed to have properly performed their
duties and not to have acted illegally but regularly and in a lawful manner’ ”).
                                    Conclusion
       {¶ 35} Based on the foregoing, the retirement board and retirement system
did not act in an arbitrary, unconscionable, or unreasonable manner in terminating
Cydrus’s disability-retirement benefits. Therefore, we affirm the judgment of the
court of appeals denying the requested extraordinary relief in mandamus.
                                                                Judgment affirmed.
       BROWN, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
       PFEIFER, J., concurs in judgment only.
                              __________________
       Charles Zamora Co., L.P.A., and Charles Zamora, for appellant.
       Richard Cordray, Attorney General, and Dennis P. Smith Jr. and Hilary R.
Damaser, Assistant Attorneys General, for appellees.
                            ______________________




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