[Cite as State ex rel Tessier v. State Teachers Retirement Sys., 2017-Ohio-4265.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. Maria Tessier,                             :

                 Relator,                                :
                                                                            No. 16AP-215
v.                                                       :
                                                                      (REGULAR CALENDAR)
State Teachers Retirement System,                        :

                 Respondent.                             :




                                          D E C I S I O N

                                        Rendered on June 13, 2017


                 On brief: Rachel C. Wilson, for relator.

                 On brief: Michael DeWine, Attorney General, John J.
                 Danish, and Mary Therese J. Bridge, for respondent.

                                              IN MANDAMUS

BROWN, J.
        {¶ 1} Relator, Maria Tessier, has filed an original action requesting this court
issue a writ of mandamus ordering respondent, State Teachers Retirement System, to
vacate a decision of the chair of the medical review board declaring void relator's second
or subsequent application for disability benefits and to enter an order that the second
application be processed and considered.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate.                      On February 27, 2017, the
magistrate issued the appended decision, including findings of fact and conclusions of
law, recommending that this court issue a writ of mandamus ordering respondent to
No. 16AP-215                                                                             2

vacate its decision declaring that the second application is void and to consider the
application in due course. No objections have been filed to that decision.
       {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law contained therein.      In accordance with the magistrate's
recommendation, relator's request for a writ of mandamus is granted.
                                                              Writ of mandamus granted.

                           KLATT and BRUNNER, JJ., concur.

                               ___________________
[Cite as State ex rel Tessier v. State Teachers Retirement Sys., 2017-Ohio-4265.]



                                             APPENDIX
                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State ex rel. Maria Tessier,                         :

                 Relator,                                :

v.                                                       :                          No. 16AP-215

State Teachers Retirement System,                        :                  (REGULAR CALENDAR)

                 Respondent.                             :


                               MAGISTRATE'S DECISION

                                     Rendered on February 27, 2017


                 Rachel C. Wilson, for relator.

                 Michael DeWine, Attorney General, John J. Danish and
                 Mary Therese J. Bridge, for respondent.


                                              IN MANDAMUS

        {¶ 4} In this original action, relator, Maria Tessier, requests a writ of mandamus
ordering respondent, State Teachers Retirement System of Ohio ("STRS") to vacate the
September 2, 2015 decision of the chair of the medical review board ("MRB") that
declared void relator's second or subsequent application for disability benefits that was
received by STRS on July 30, 2015, and to enter an order that the second application be
processed and considered in due course.
Findings of Fact:
        {¶ 5} 1. On May 19, 2014, relator completed a disability benefit application on a
form provided by STRS. Relator indicated on the form that she had been employed by the
Olmsted Falls City Schools as a "speech language pathologist."
        {¶ 6} Section 4 of the form asks the applicant to list specific diagnoses or
conditions that are causing disability. In response, relator listed five diagnoses: (1)
No. 16AP-215                                                                             4


"Fibromyalgia," (2) "Depression and anxiety," (3) "Migraines and recent concussion," (4)
"Hypothyroidism," and (5) "Asthma."
       {¶ 7} Section 5 of the form asks the applicant to identify her attending physician
or physicians.     In response, relator identified Virginia Vatev, M.D., and clinical
psychologist Debra Goran, Ph.D.
       {¶ 8} 2. STRS received the disability benefit application on May 22, 2014.
       {¶ 9} 3. Earlier, on April 21, 2014, Dr. Vatev completed an "Attending Physician's
Report" on a STRS form. This was also received by STRS on May 22, 2014.
       {¶ 10} 4. On June 3, 2014, MRB Chair Earl N. Metz, M.D., advised a four-month
period of psychiatric treatment before STRS proceeds with the disability benefit
application.
       {¶ 11} 5. By letter dated June 4, 2014, STRS informed relator:

               The STRS Ohio medical qualification for disability states that
               your condition must incapacitate you from the performance
               of duty for at least 12 months from the date your completed
               application was received. 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 your attending physician report, the Medical
               Review Board determined that you must secure psychiatric
               treatment for four months before further consideration of
               your application for disability benefits. The Retirement
               System cannot assume financial responsibility for such
               treatment. Following four months of treatment, you should
               request your doctor to furnish this office with a report
               regarding the treatment provided and progress you have
               made.

       {¶ 12} 6. On June 17, 2014, psychiatrist Diana Dale completed an Attending
Physician's Report.    The form asks the physician to identify the "[p]rimary medical
condition" for which treatment is being provided. In response, Dr. Dale wrote "Severe
Major Depression."
       {¶ 13} On the form, Dr. Dale certified that in her opinion, relator is incapacitated
for the performance of duty and that the disability "may be" considered to be permanent.
STRS received Dr. Dale's report on June 23, 2014.
No. 16AP-215                                                                             5


       {¶ 14} 7. By letter dated June 25, 2014, STRS informed relator that her disability
benefit application was being processed. Relator was informed that STRS had selected
psychiatrist Joel Steinberg, M.D., and Deborah Venesy, M.D. (physical medicine) to each
perform an independent medical examination.
       {¶ 15} 8. On July 9, 2014, at the request of STRS, relator underwent a
comprehensive psychiatric evaluation performed by Dr. Steinberg.             In his 22-page
narrative report, Dr. Steinberg states as follows beginning at page 21 of his report:
               MENTAL STATUS EXAM:
               APPEARANCE & BEHAVIOR: Ms. Tessier was clean and
               well groomed. She had large eyes, giving her an attractive
               appearance. She was wearing the knee brace on her left leg.
               She hobbled as she walked, but she did not use ambulatory
               aids. While seated, she sat with her left leg fully extended at
               the knee with her foot resting on another chair. Other than
               the fading skin rash and her moderate obesity, there were no
               distinguishing physical characteristics. Ms. Tessier's facial
               expressions included several episodes of brief tearfulness
               and frequent socially-appropriate smiling. Eye contact was
               good. Motor activity fell in the normal range. There were no
               specific mannerisms.

               SPEECH: Ms. Tessier's speech was clear and offered at a
               normal cadence, pitch and volume. Although it is true that
               she spoke Italian before English, English is also one of her
               native languages. There were no traces of any sort of accent.

               EMOTIONS: Ms. Tessier's mood was labile and included, as
               mentioned, episodes of tearfulness. Her affect was mood-
               congruent and appropriate.

               THOUGHT: Ms. Tessier's thoughts were well organized.
               There was a suitable abundance of ideas. No pathologic
               associations were noted. In particular, there were no
               distortions, delusions or ideas of reference. She did not
               describe depersonalization events.

               Ms. Tessier described her house as having been Martha
               Stewart level of organization and cleanliness, suggesting that
               she has some mild obsessive features, but none were
               apparent in the interview. She did not describe any phobias.
               She clearly has multiple and excessive somatic concerns. She
               did not report suicidal and/or homicidal ideation.

               PERCEPTIONS: Ms. Tessier did not report illusions or
               hallucinations.
No. 16AP-215                                                                       6



               SENSORIUM & INTELLECT: Ms. Tessier was alert. She was
               fully oriented to time, place, person, situation and
               circumstance. She transported herself from the Olmsted
               Falls area to my office alone. Her concentration seemed
               okay. She worked at a normal pace through the testing. She
               had arrived at about 8:10 or 8:15 a.m., spent 85 minutes with
               me and left the office at approximately 1 p.m. There were
               some disturbances in the office while she was here, but she
               kept working. Her memory for immediate, recent and
               remote events appeared to be intact. Her fund of knowledge
               was good. Her ability to abstract was estimated to fall at the
               higher end of the average range or perhaps beyond that. Her
               judgment about matters other than her health appeared to
               be sound. Her insight was fair. Her attitude toward me was
               good.

               DISCUSSION: Ms. Tessier has had psychiatric symptoms
               for most of her life and she has been receiving mental health
               care for most of her adult life. She herself views her most
               pressing problem as that of fibromyalgia. In my opinion, she
               has a chronic dysthymic problem with superimposed
               episodes of Major Depressive Disorder, but these
               problems have not prevented her from working in the past. I
               believe that she is in a very difficult situation struggling with
               management and having been "demoted", as she put it.
               While it is easy to understand why she might want to leave
               her position under those circumstances, it does not appear to
               me that her depression is of a disabling level of severity. A
               rheumatologist may feel differently and see her as disabled
               based on the fibromyalgia.

               RECOMMENDATION OF MEDICAL EXAMINER:
               On July 9, 2014, I examined Maria Grazia Tessier. I hereby
               certify that, in my opinion, the applicant is not considered
               to be permanently or presumed to be permanently (12
               continuous months) incapacitated on a psychiatric basis for
               the performance of duty, and that she should not be retired
               on a psychiatric basis.

               I have performed an independent medical evaluation of the
               above named person. I have not provided care for this
               person. The opinions rendered are on the basis of the
               medical documentation, history and physical findings and
               are independent of the requesting party.

(Emphasis sic.)
No. 16AP-215                                                                           7


       {¶ 16} 9. On August 1, 2014, at the request of STRS, relator was examined by Dr.
Venesy who practices with the Cleveland Clinic Foundation.     In her five-page narrative
report, Dr. Venesy states:
               As requested, I personally saw and examined Ms. Maria
               Tessier on August 1, 2014 at the Cleveland Clinic. Ms. Tessier
               was provided a brochure and information regarding the
               nature of an independent medical evaluation as performed at
               the Cleveland Clinic including the limited confidentiality and
               where this letter would be sent.

               Ms. Tessier is applying for disability based on fibromyalgia,
               depression, anxiety, migraine headaches, a recent mild
               concussion, hypothyroidism, and asthma. Ms. Tessier is a
               50-year-old right-hand dominant speech and language
               pathologist who was diagnosed with fibromyalgia many
               years ago. She noticed that over the past couple of years, her
               stress has increased and she has had more difficulty with an
               increased case load at work. She complains of pain in her
               neck and upper back, a crawling sensation that goes down
               the back, increased fatigue, depression, and difficulty
               managing the paperwork involved with her job. She is on
               vacation right now. She also has a left knee injury as a result
               of an auto accident in March 2014, and she is scheduled to
               have knee surgery next week. As noted, her fatigue, pain, and
               depression have increased over the past couple of years
               especially after the recent auto accident. She also notes a
               mild concussion which has improved, but she has seen a
               neurologist for a different type of headache after the auto
               accident.

               From a fibromyalgia treatment perspective, she has tried all
               kinds of medications and alternative treatment, including
               Lyrica, Cymbalta, and Savella. She was unable to take these
               medications due to side effects. She has had physical therapy
               but not aquatic therapy. She is receiving counseling for
               depression. She has tried acupuncture without any change.
               She has also participated in the integrative medicine clinic at
               the Cleveland Clinic without much success. She has tried
               massage, Reiki, yoga, and meditation.

               Her symptoms in regard to pain are worse with prolonged
               walking activity. Right now, over the summer, she is able to
               do laundry and lie down and unload the dishwasher and lie
               down, so she is able to manage her symptoms that way. She
               feels better with a hot shower, sleep, and meditation.
No. 16AP-215                                                                        8


       {¶ 17} 10. Dr. Venesy also completed an STRS form captioned "Medical
Examiner's Evaluation Form."
       {¶ 18} On the form, Dr. Venesy certified that relator "is not" considered to be
permanently or presumed to be permanently (12 continuous months from date of
application) incapacitated for the performance of duty, and that she "should not" be
retired.
       {¶ 19} 11. Pursuant to Ohio Adm.Code 3307:1-7-01(I), three physicians were
chosen to be the MRB panel in relator's case. The MRB physicians are (1) psychiatrist
Jeffery C. Hutzler, M.D., (2) Claire V. Wolfe, M.D., and (3) James Allen, M.D.
       {¶ 20} 12. On August 15, 2014, Dr. Hutzler wrote to Dr. Metz. Following his
review of the medical reports of record including the reports of Drs. Steinberg and
Venesy, Dr. Hutzler stated:
               After reviewing these documents it is my recommendation
               that Maria Tessier is not considered to be permanently or
               presumed to be permanently incapacitated for the
               performance of duty and that she should not be retired from
               a global medical or psychiatric standpoint.

       {¶ 21} 13. On August 16, 2014, Dr. Wolfe wrote:

               Maria Tessier is a 50 [year old] speech and language
               pathologist who has worked for the Olmsted Falls City
               Schools. She alleges inability to continue working due to
               fibromyalgia, depression and anxiety.

               Ms. Tessier was diagnosed with fibromyalgia several years
               ago. She has been unable to tolerate most medications, is
               intolerant of exercise & has not responded to alternative
               therapies. She has nevertheless been able to continue
               teaching up to the current time when additional stresses at
               work with administration have worsened her anxiety and
               depression and thus her fibromyalgia. A recent motor vehicle
               accident in 3/2014 added a mild concussion, a left knee
               injury and more pain.

               Her concussion workup was negative for severe head trauma
               and she has been able to work, care for her son, drive and
               care for her needs. Her left knee workup has documented
               mild degenerative changes, ligamentous strain, and a
               possible meniscal injury for which surgery was to have been
               done. Her concussion and knee events would not be expected
No. 16AP-215                                                                       9


               to be incapacitating for twelve months. Her fibromyalgia is
               long-standing and is also not impairing for teaching.

               Ms. Tessier has also had lifelong issues with depression and
               anxiety with psychiatric treatment since she was a teenager.
               Her thorough IME evaluation by Dr. Joel Steinberg noted
               diagnoses of dysthymia and somatoform disorder. She was
               able to attend the exam unaccompanied, participated fully in
               all testing and the interview, and it was Dr. Steinberg's
               impression that, although impaired, she was still capable of
               teaching.

               There is no documentation in the record that would
               contradict the findings of Drs. Venesy and Steinberg and I
               would agree with their impressions that Ms. Tessier is not
               disabled from her job.

       {¶ 22} 14. On August 16, 2014, Dr. Allen wrote to Dr. Metz:

               In summary, this speech and language teacher has been
               determined to not be disabled due to psychiatric disease or
               fibromyalgia by independent medical examiners who are
               experienced in these conditions. Laboratory testing indicates
               that she is no longer hypothyroid while on thyroid hormone
               replacement. She is no longer anemic. She will be having
               knee surgery this month and is anticipated to require being
               off work for a period of time while recovering from that
               surgery. I recommend that disability retirement be denied.
               She will require being off work for a period of time following
               her knee surgery until cleared to return to duties (from a
               post-op knee surgery standpoint) by her surgeon.

       {¶ 23} 15. On August 19, 2014, Dr. Metz wrote to the retirement board:

               The disability application of the above named member and
               the findings of the appointed examiners have been studied
               by the following Medical Review Board members, Dr. Claire
               Wolfe, Dr. James Allen, and Dr. Jeffery Hutzler. The Medical
               Review Board concurs with the opinions of the appointed
               examiners and recommends that disability benefits be
               denied.

       {¶ 24} 16. By letter dated August 21, 2014, STRS informed relator that the MRB
concluded that relator does not meet the criteria for "permanent disability."
No. 16AP-215                                                                               10


       {¶ 25} 17. By letter dated September 19, 2014, STRS informed relator that the
STRS retirement board took official action at its meeting on September 18, 2014 to deny
the application for disability benefits.
       {¶ 26} The STRS letter also informed relator that she had the right to appeal the
retirement board decision "based on additional medical evidence contrary to the findings
of the Medical Review Board."
               The STRS letter further advised:
               You have the right to again apply for disability benefits if you
               can show through medical records progression of the former
               disabling condition or a new condition expected to last at
               least 12 months from the date the new application is filed
               with STRS Ohio.

       {¶ 27} 18. On December 16, 2014, relator, through counsel, timely filed an appeal
of the September 18, 2014 decision of the retirement board. With her appeal, relator
submitted additional medical evidence.
       {¶ 28} 19. On January 25, 2015, Dr. Metz wrote to the retirement board:

               Additional information was received─either relating to
               arthroscopic surgery on her right knee in August 2014 or to
               problems antecedent to her independent examinations.
               None of this material adds in a substantial way to her
               application. The recommendation of the MRB remains the
               same.

       {¶ 29} 20. On February 18, 2015, an appeal hearing was held before the STRS
Disability Review Panel. Relator appeared at the hearing with her counsel.
       {¶ 30} 21. By letter dated February 20, 2015, STRS informed relator that, on
February 19, 2015, the retirement board took official action to affirm its prior decision to
deny the application for disability benefits.
       {¶ 31} 22. On June 3, 2015, relator completed another disability benefit
application on a form provided by STRS.
       {¶ 32} At section 4 of the form, the applicant is asked to state the specific diagnoses
or conditions that are causing disability. In response, relator listed six conditions: (1)
"Fibromyalgia," (2) "Major Recurrent Depression," (3) "Generalized Anxiety Disorder,"
(4) "Knee pain," (5) "Migraine Headaches," and (6) "Diabetes Mellitus." At section 5 of
No. 16AP-215                                                                             11


the form, the applicant is asked to identify her attending physicians. In response, relator
listed (1) Dr. Virginia Vatev, (2) Dr. Diana Dale, and (3) Melanie Higgins, Ph.D.
       {¶ 33} 23. On July 30, 2015, STRS received relator's second disability benefit
application.
       {¶ 34} 24. Earlier, on May 27, 2015, relator was examined by psychologist Melanie
Higgins, Ph.D.    Based on the examination, Dr. Higgins completed an "Attending
Physician's Report" on June 22, 2015. On the report, Dr. Higgins certified that relator is
incapacitated for the performance of duty and that the disability is expected to last 12 or
more months from the date of certification. Dr. Higgins' report was received by STRS on
July 30, 2015.
       {¶ 35} 25. According to STRS, Dr. Higgins' report is invalid because an attending
physician's report must be completed by an M.D., D.O., or D.P.M., as indicated on the
form. Also according to STRS, Dr. Higgins' report is invalid because the examination on
which it is based did not occur within "the last two months" of the application date as
required by Ohio Adm.Code 3307:1-7-01(B).
       {¶ 36} 26. Earlier, on April 8, 2015, relator was examined by Dr. Vatev. Based on
the examination, Dr. Vatev completed an "Attending Physician's Report," on May 18,
2015. On the form, Dr. Vatev certified that relator is incapacitated for the performance of
duty and that the disability is expected to last 12 or more months from the date of
certification.
       {¶ 37} The form asks the attending physician to state the "[p]rimary medical
condition for which I am providing treatment."
       {¶ 38} In response, Dr. Vatev wrote: "[Left] knee injury/surgery meniscus tear
3/8/14." Dr. Vatev's report was received by STRS on July 30, 2015.
       {¶ 39} According to STRS, Dr. Vatev's report is invalid because the examination on
which it is based did not occur within "the last two months" of the application date as
required by Ohio Adm.Code 3307:1-7-01(B).
       {¶ 40} 27. On May 12, 2015, relator was examined by psychiatrist Diana Dale.
Based on the examination, Dr. Dale completed an "Attending Physician's Report" on June
16, 2015.
       {¶ 41} In response to the form's query to state the "[p]rimary medical condition for
which I am providing treatment," Dr. Dale wrote "Major Recurrent Depression,
No. 16AP-215                                                                                12


Generalized Anxiety Disorder."        Dr. Dale also listed "Fibromyalgia" as an "other
significant medical condition." Dr. Dale's report was received by STRS on July 30, 2015.
       {¶ 42} According to STRS, Dr. Dale's report is invalid because the examination on
which it is based was not performed within "the last two months" of the application date
as required by Ohio Adm.Code 3307:1-7-01(B).
       {¶ 43} 28. By letter or memorandum dated August 4, 2015, STRS informed
relator:
               We received an incomplete disability application packet.
               Processing of your disability application cannot begin until
               all portions of your application packet are received. Please
               return or complete the additional information checked below
               within the next 30 days. Failure to respond by
               September 4, 2015 may result in the cancellation of your
               application.

(Emphasis sic.)

       {¶ 44} The STRS letter identified the following preprinted language as describing
the problem:
               Attending Physician's Reports need to be received by STRS
               Ohio within 60 days of most recent appointment date. Please
               schedule another appointment with the doctors listed above
               and have them submit updated reports within 60 days of the
               appointment date.

       {¶ 45} STRS identified the attending physician's reports of Drs. Dale, Vatev and
Higgins as being non-compliant with the rule.
       {¶ 46} 29. On August 18, 2015, relator was examined by psychologist Melanie
Higgins. In her new "Attending Physician's Report," received by STRS on August 31,
2015, Dr. Higgins certified that relator is incapacitated for the performance of duty and
that the disability is expected to last 12 or more months from the date of certification, i.e.,
August 18, 2015.
       {¶ 47} In response to the query to state the "[p]rimary medical condition for which
I am providing treatment," Dr. Higgins wrote: "Increased depression since auto accident
injury March 2014."
       {¶ 48} 30. On August 20, 2015, relator was examined by psychiatrist Diana Dale.
In her new "Attending Physician's Report," received by STRS on August 31, 2015, Dr. Dale
No. 16AP-215                                                                              13


certified that relator is incapacitated for the performance of duty and the disability is
expected to last 12 or more months from the date of certificate.
       {¶ 49} In response to the query to state the "[p]rimary medical condition for which
I am providing treatment," Dr. Dale wrote "Major Recurrent Depression, Generalized
Anxiety Disorder." Dr. Dale again listed "Fibromyalgia" as the "other significant medical
condition" which is "disabling."
       {¶ 50} On August 26, 2015, relator was examined by Dr. Vatev.            In her new
"Attending Physician's Report," received by STRS on August 31, 2015, Dr. Vatev certified
that relator is incapacitated for the performance of duty and that the disability is expected
to last 12 months or more from the date of certification.
       {¶ 51} In response to the query to state the "[p]rimary medical condition for which
I am providing treatment," Dr. Vatev wrote "[Left] knee injury/surgery meniscus tear
3/8/14."
       {¶ 52} The "Attending Physician's Report" form also asks the physician to identify
"[o]ther significant medical condition(s)" and to indicate by marking a box whether the
condition is "disabling."     In response, Dr. Vatev listed three significant medical
conditions:    (1) "fibromyalgia," (2) "new onset [diabetes mellitus] II," and (3)
"depression." By her mark, Dr. Vatev indicated that the diabetes is not disabling, but the
fibromyalgia and depression are disabling.
       {¶ 53} 31. According to STRS, upon the August 31, 2015 receipt of the new
attending physician's reports, STRS marked the second application complete.
       {¶ 54} 32. By letter dated September 2, 2015, STRS informed relator:
               According to the Administrative Code 3307:1-7-05 C, any
               subsequent applications for disability benefits filed after a
               denial of benefits shall be submitted with objective and
               pertinent medical evidence supporting progression of the
               former disabling condition or evidence of a new disabling
               condition. If such evidence is evaluated by the medical
               review board and found to be inadequate to establish the
               progression of the disabling condition or the existence of a
               new disabling condition, the application shall be voided and
               a notice will be sent to the applicant. If two years have
               elapsed since the date the member's contributing service
               terminated, no subsequent application shall be accepted.

               The Chairman of the Medical Review Board reviewed your
               application and medical reports and made the determination
No. 16AP-215                                                                           14


               that there is no objective medical evidence to show
               progression or a new condition supported by your attending
               physicians as disabling, since the completion of your prior
               application in February 2015; therefore, the disability
               application received on July 30, 2015 is void.

       {¶ 55} 33. On March 23, 2016, relator, Maria Tessier, filed this mandamus action.

Conclusions of Law:
       {¶ 56} As stated in the September 2, 2015 STRS letter, the MRB chair declared
void relator's subsequent or second application based on his review. Apparently, the
chair's decision to void the second application has been treated by STRS as a final
decision.   There is no indication in the record that the MRB evaluated the second
application.
       {¶ 57} Because the MRB chair did not obtain authority to issue a final decision to
declare a subsequent application void without MRB review until Ohio Adm.Code 3307:1-
7-05(C) was amended effective June 10, 2016, STRS abused its discretion in failing to
further process the second application.
       {¶ 58} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
                            Relevant Administrative Rules
               Effective May 8, 2014, former Ohio Adm.Code 3307:1-7-05(C) stated:
               Any subsequent applications for disability benefits filed after
               a denial or termination of benefits shall be submitted with
               additional medical evidence not previously submitted in
               connection with prior applications for disability benefits,
               supporting progression of the former disabling condition or
               evidence of a new disabling condition. If such evidence is
               evaluated by the medical review board and found to be
               inadequate to establish the progression of the disabling
               condition or the existence of a new disabling condition, the
               application shall be voided and a notice will be sent to the
               applicant.

       {¶ 59} Effective June 10, 2016, Ohio Adm.Code 3307:1-7-05(C) was amended. It
currently states:
               Any subsequent applications for disability benefits filed after
               a denial or termination of benefits shall be submitted with
               additional medical evidence not previously submitted in
               connection with prior applications for disability benefits,
No. 16AP-215                                                                         15


               supporting progression of the former disabling condition or
               evidence of a new disabling condition. If such evidence is
               evaluated by the medical review board chair and found to be
               inadequate to establish the progression of the disabling
               condition or the existence of a new disabling condition, the
               application shall be voided and a notice will be sent to the
               applicant. The decision of the medical review board chair
               shall be final.

               Ohio Adm.Code 3307:1-7-01 currently provides the following definitions:
               (B) "Application" includes all of the following: an application
               for disability benefits; an attending physician's report based
               on an examination that was completed within the last two
               months and includes medical evidence, an employer report,
               and a job description provided by the last employer. The
               application for disability benefits, attending physician's
               report and employer report shall be made on forms provided
               by the retirement system. * * *

               (C) "Attending physician" shall mean an applicant's
               physician of choice, who has established a therapeutic
               relationship with the applicant and has completed a report
               and certified on forms provided by the retirement system
               that in the attending physician's opinion an applicant is
               incapacitated for the performance of duty by a disabling
               condition that is presumed to be permanent. The attending
               physician shall provide standard objective and pertinent
               medical evidence supporting the opinion.

               ***

               (G) "Independent medical examiner" shall mean a
               competent physician neither involved in a treatment
               relationship with an applicant or recipient nor otherwise
               employed by the retirement system, who shall be designated
               by the chair of the medical review board to conduct an
               impartial examination.

               ***

               (I) "Medical review board" shall mean the group of
               independent physicians designated by the retirement board
               under the direction of a chair appointed by the retirement
               board to assist in the evaluation of medical examinations and
               information. The members of the medical review board may
               be asked in panels of three or more to review any application
               and provide their conclusions as to whether an applicant will
No. 16AP-215                                                                        16


               be mentally or physically incapacitated            from    the
               performance of duty for at least twelve months.

               (J) A disabling condition shall be "presumed to be
               permanent," if it physically or mentally incapacitates an
               applicant from the performance of regular duty for a period
               of at least twelve months from the date of the retirement
               system's receipt of the completed application.

               Ohio Adm.Code 3307:1-7-02 currently provides:
               (A) The retirement board shall appoint an independent
               physician to serve as chair of the medical review board and
               as medical advisor to the retirement board. The chair so
               appointed shall:

               (1) Request and review medical evidence from the applicant
               or applicant's attending physicians and other relevant
               sources regarding the nature, findings, extent, treatment,
               duration and functional limitations imposed by the
               conditions the applicant claims as disabling.

               Any medical evidence or other information submitted by or
               on behalf of an applicant or recipient that is determined by
               the chair of the medical review board to not be objective or
               pertinent to the applicant's or recipient's claimed medical
               condition will not be considered, including duplicate records,
               internet articles or medical records not related to the current
               application or reexamination.

               (2) Assign and oversee competent and impartial independent
               medical examiners to conduct the medical examinations and
               tests the chair deems necessary and appropriate to the
               evaluation of an application. Examinations will be assigned
               only for conditions listed on the application and supported
               as disabling by the attending physician.

                                   Relevant Case Law
      {¶ 60} Mandamus is the appropriate remedy when no statutory right of appeal is
available to correct an abuse of discretion by an administrative body such as the STRS
retirement board. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d
327, 2002-Ohio-2219, ¶ 14.
      {¶ 61} The STRS retirement board abuses its discretion─and a clear right to
mandamus exists─if it enters an order that is not supported by some evidence. State ex
rel. Woodman v. Ohio Public Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-
No. 16AP-215                                                                              17

3807, citing State ex rel. Nese v. State Teachers Retirement. Bd. of Ohio, 136 Ohio St.3d
103, 2013-Ohio-1777, ¶ 26.
       {¶ 62} STRS has no clear legal duty cognizable in mandamus to specify what
evidence it relied on and to explain the reasoning for its retirement board's decision.
Pipoly at ¶ 22.
       {¶ 63} In determining whether to grant an application for disability benefits, the
STRS retirement board is not required to give greater weight to the medical reports and
opinions of the applicant's treating physicians. Pipoly at ¶ 23-25. See State ex rel. Bell v.
Indus. Comm., 72 Ohio St.3d 575 (1995) (The Industrial Commission is not required to
give enhanced weight to the attending physician's report in determining whether to award
permanent total disability compensation).
                                         Analysis
       {¶ 64} As announced by the September 2, 2015 STRS letter to relator, pursuant to
Ohio Adm.Code 3307:1-7-05(C), the MRB chair determined that there is no objective
medical evidence to show progression or a new condition supported by the attending
physicians as disabling with respect to relator's second application received by STRS on
July 30, 2015. According to the September 2, 2015 STRS letter, because the MRB chair
made the determination, the second application is void.
       {¶ 65} At the time that the MRB chair rendered his determination that the second
application is void, former Ohio Adm.Code 3307:1-7-05(C) did not grant to the MRB chair
the authority to issue a final decision as to relator's second application. The authority to
issue a final decision as to a subsequent application was not expressly given to the MRB
chair until Ohio Adm.Code 3307:1-7-05(C) was amended effective June 10, 2016, i.e.,
after the MRB chair's September 2, 2015 determination at issue here. Accordingly, STRS
has abused its discretion by treating the September 2, 2015 decision of the MRB chair as a
final order declaring the second application void.
       {¶ 66} Accordingly, based on the foregoing analysis, it is the magistrate's decision
that this court issue a writ of mandamus ordering respondent to vacate its decision
declaring that the second application is void, and to consider the application in the due
course of law.
                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE
No. 16AP-215                                                                       18



                               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).
