[Cite as State ex rel. Basile v. Ohio Pub. Emps. Retirement Sys., 2015-Ohio-5366.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel. Lynn Basile,                      :
an incompetent person represented
by Guardian, Ralph Basile,                              :

                 Relator,                               :                   No. 14AP-974

v.                                                      :           (REGULAR CALENDAR)

Ohio Public Employees Retirement System, :

                 Respondent.                            :



                                          D E C I S I O N

                                   Rendered on December 22, 2015


                 Harvey Abens Iosue Co. LPA, Matthew B. Abens, and
                 David L. Harvey, III, for relator.

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

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Lynn Basile, by and through guardian Ralph Basile, brings this
original action seeking a writ of mandamus ordering respondent Ohio Public Employees
Retirement System ("OPERS") to vacate its order terminating relator's disability benefit.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that OPERS abused its discretion when it refused to
No. 14AP-974                                                                               2


consider reinstatement of relator's disability benefit ("benefit"). Accordingly, the
magistrate recommended that we grant the requested writ of mandamus.
       {¶ 3} Respondent sets forth the following objection to the magistrate's decision:
               OPERS' TERMINATION OF RELATOR'S DISABILITY
               BENEFITS WAS NOT AN ABUSE OF DISCRETION.

       {¶ 4} OPERS has not objected to the magistrate's factual findings. According to
the magistrate, OPERS approved relator's application for benefits in 1995 with the
condition that she seek psychiatric treatment. On April 26, 2011, the Cuyahoga County
Probate Court appointed relator's husband, Ralph Basile, as relator's guardian.          On
March 19, 2012, Ralph Basile submitted an annual statement of earnings to OPERS on
relator's behalf. OPERS Form EE provides in relevant part:
               All disability benefit recipients are required by state law to
               provide information about the additional employment and
               earnings after disability. The information will be used to
               assist OPERS in the proper administration of its disability
               benefits program. This form must be completed and
               returned to OPERS no later than April 15, 2012.

               Failure to comply with this request will result in
               suspension of your monthly disability benefit.

(Emphasis sic.)
       {¶ 5} In 2013, Ralph Basile did not submit an annual statement of earnings to
OPERS on relator's behalf. On or about April 22, 2014, OPERS terminated relator's
benefit, pursuant to R.C. 145.362, effective April 30, 2013, and subsequently refused to
consider relator's application for reinstatement of benefits. Relator initiated this original
action seeking a writ of mandamus ordering OPERS to vacate its order terminating
relator's benefit.
       {¶ 6} In order to be entitled to a writ of mandamus, relator must establish that
OPERS abused its discretion in terminating her benefit. State ex rel. Curtin v. Ohio Pub.
Emps. Retirement Sys., 10th Dist. No. 09AP-801, 2011-Ohio-2536, ¶ 8, citing State ex rel.
Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, ¶ 25. Ohio
Adm.Code 145-2-27, entitled "Disability benefit recipient's annual statement," provides,
in relevant part, as follows:
No. 14AP-974                                                                                  3


              (A)(1) On or before April fifteenth of each year, a disability
              benefit recipient shall file a statement with the public
              employees retirement system providing information
              including, but not limited to: work performed during the
              preceding calendar year, compensation received for work
              performed, and current medical information.

              ***

              (B) The recipient's statement shall be made on a form
              provided by the retirement system.

              (C) The failure of a recipient to file such statement shall
              result in the suspension of a disability benefit until such
              statement is filed. If such failure continues for one year, the
              disability benefit shall be terminated in accordance with
              section 145.362 of the Revised Code and is not subject to
              appeal to the public employees retirement board.

(Emphasis added.)
       {¶ 7} OPERS is required to suspend a recipient's benefit, pursuant to Ohio
Adm.Code 145-2-27, upon the "failure of a recipient to file" an annual statement of
earnings. However, Ohio Adm.Code 145-2-27 does not authorize OPERS to terminate a
benefit due to a continued failure to file the earnings statement. Rather, Ohio Adm.Code
145-2-27 states that, "[i]f such failure continues for one year, the disability benefit shall be
terminated in accordance with section 145.362 of the Revised Code."
       {¶ 8} R.C. 145.362 provides, in relevant part, as follows:
              Each disability benefit recipient shall file with the board an
              annual statement of earnings, current medical information
              on the recipient's condition, and any other information
              required in rules adopted by the board. The board may
              waive the requirement that a disability benefit recipient file
              an annual statement of earnings or current medical
              information if the board's medical consultant certifies that
              the recipient's disability is ongoing.

              The board shall annually examine the information submitted
              by the recipient. If a disability benefit recipient refuses to
              file the statement or information, the disability benefit shall
              be suspended until the statement and information are filed.
              If the refusal continues for one year, the recipient's right to
No. 14AP-974                                                                                 4


              the disability benefit shall be terminated as of the effective
              date of the original suspension.

(Emphasis added.)
       {¶ 9} R.C. 145.362 permits the board to terminate a benefit only if the recipient
"refuses" to file an annual statement of earnings and such "refusal continues for one year."
The words "refuses" and "refusal" are not defined in the relevant portions of either the
Ohio Revised Code or the Ohio Administrative Code.
       {¶ 10} In Mfrs. Hanover Trust Co. v. Gene R. Brockmeyer & Co., 4 Ohio App.3d
125, 127 (10th Dist.1982), this court defined "refusal" in the context of service of process
as follows: " 'the "denial of anything demanded, solicited or offered for acceptance." * * *
[U]sing words such as * * * "denial," connote willfulness.' " Id., quoting In re Masters, 165
Ohio St. 503, 506 (1956), quoting Webster's New International Dictionary (2 Ed.). In the
context of an administrative license suspension, the Supreme Court of Ohio defined a
"refusal" to submit to a chemical test as conduct which would justify the belief of a
reasonable person in the position of the requesting officer that such requested person was
capable of refusal and manifested unwillingness to take the test. Andrews v. Turner, 52
Ohio St.2d 31, 36 (1977).
       {¶ 11} By contrast, "Webster's New Collegiate Dictionary defines the verb 'fail' as
'to fall short' or 'to be unsuccessful.' " Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222,
225 (1982), fn. 9. "According to Webster's New International Dictionary (2 Ed.), the word
'failure' means 'omission to perform, esp. an appointed function; a default; as, failure of
justice; failure to keep a promise.' " (Emphasis omitted.) State ex rel. Flask, Jr. v. Collins,
148 Ohio St. 45, 49 (1947). Thus, the commonly used definition of "fails" or "failure" does
not imply willfulness.
       {¶ 12} R.C. 1.42, pertaining to statutory construction, states that "[w]ords and
phrases shall be read in context and construed according to the rules of grammar and
common usage. Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly." R.C.
145.362 uses the words "refuses" or "refusal" rather than "fails" or "failure." Applying the
commonly recognized definition of these words in the context of a decision to terminate a
recipient's benefit, we find that the words "refuses" or "refusal" connote willfulness,
No. 14AP-974                                                                                5


whereas the words "fails" or "failure" do not. See Brockmeyer; In re Masters. There is no
contention that these words have been given a particular or technical meaning either by
the General Assembly or otherwise.
       {¶ 13} In this instance, there has been no determination by an OPERS staff
member that relator refused to file an earnings statement. Nor has there been any
determination by the board, pursuant to R.C. 145.362, that relator has refused to file the
annual statement of earnings and that such "refusal continue[d] for one year." In a
February 24, 2014 letter to relator and her guardian, OPERS informed relator that her
monthly disability benefits were suspended for "non-compliance with the Annual
Employment and Earnings requirement." The letter warns relator that "your monthly
disability allowance and health care coverage will be terminated for non-compliance." In
a June 6, 2014 letter to relator and her guardian, Disability Benefits Supervisor Jeremy L.
Polley informs relator that, "[d]ue to your continued non-compliance with [the Annual
Statement of Employment and Earnings], your disability benefit, including health care
coverage has been terminated as of April 30, 2013." In her September 10, 2014 response
to relator's request for reinstatement, OPERS Associate Counsel Lauren N. Gresh states
that "OPERS suspended [relator's] disability benefits effective April 1, 2013 due to the
failure to comply with employment and earnings statements." The letter concludes that
"[t]here is presently no opportunity to become compliant with the earnings statement
after the benefit has been suspended for a year and terminated by operation of law."
       {¶ 14} While a finding of a failure to comply with the annual statement of earnings
requirement provides OPERS with a legal basis to suspend a recipient's benefit, pursuant
to Ohio Adm.Code 145-2-27, termination of a benefit is warranted under R.C. 145.362
only if the recipient's "refuses" to file the annual statement of earnings and the "refusal
continues for one year." There has been no such finding by OPERS in this case. Whether
such a finding is justified under the particular facts of this case is a matter for OPERS to
determine in the first instance.
       {¶ 15} Based upon the foregoing, it is our determination that OPERS abused its
discretion by terminating relator's benefit, pursuant to R.C. 145.362, in the absence of a
finding that relator refused to file an annual statement of earnings and that relator's
refusal continued for one year. For the reasons set forth in this decision, we issue a writ of
No. 14AP-974                                                                             6


mandamus ordering OPERS to vacate its order terminating relator's benefit and make a
determination whether, pursuant to R.C. 145.362, relator has refused to file the statement
of earnings and, if so, whether such refusal continued for one year.          Accordingly,
respondent's objection is overruled.
      {¶ 16} Following review of the magistrate's decision, an independent review of the
record, and due consideration of respondent's objection, we find that the magistrate has
determined the pertinent facts, and we adopt them as our own. Though we agree with the
magistrate's recommendation in this case, we disagree with the magistrate's reasoning.
Accordingly, we adopt the magistrate's conclusions of law as modified herein. For the
reasons set forth in this decision, we overrule respondent's objection, and we grant a writ
of mandamus ordering respondent to vacate its order terminating relator's benefit and
make a determination whether, pursuant to R.C. 145.362, relator has refused to file the
statement of earnings and, if so, whether such refusal continued for one year. The
requested writ of mandamus is granted.
                                                                      Objection overruled;
                                                              writ of mandamus granted.

                        BROWN, P.J., and HORTON, J., concur.
                             _________________
No. 14AP-974                                                                         7


                                    APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
Lynn Basile, an incompetent person
represented by Guardian, Ralph Basile,       :

             Relator,                        :

v.                                           :                    No. 14AP-974

Ohio Public Employees Retirement System, :                   (REGULAR CALENDAR)

             Respondent.                     :



                         MAGISTRATE'S DECISION

                               Rendered on July 27, 2015


             Harvey Abens Iosue Co. LPA, Matthew B. Abens and
             David L. Harvey III, for relator.

             Michael DeWine, Attorney General, John J. Danish and
             Mary Therese Bridge, for respondent Ohio Public
             Employees Retirement System.


                                    IN MANDAMUS
      {¶ 17} In this original action, relator, Lynn Basile, the ward of her husband and
legal guardian, Ralph Basile, requests a writ of mandamus ordering respondent, Ohio
Public Employees Retirement System ("OPERS" or "respondent"), to reinstate her
disability benefits that respondent terminated as of April 30, 2013.
Findings of Fact:
      {¶ 18} 1. Effective July 1, 1995, respondent approved relator's application for
disability benefits with the condition that she seek psychiatric treatment and be re-
examined in one year.
No. 14AP-974                                                                          8


      {¶ 19} 2. R.C. 145.362 provides that a disability recipient shall file with OPERS
an annual statement of earnings pursuant to rules adopted by the Public Employment
Retirement Board ("board"). R.C. 145.362 further provides:
              The board shall annually examine the information submitted
              by the recipient. If a disability benefit recipient refuses to file
              the statement or information, the disability benefit shall be
              suspended until the statement and information are filed. If
              the refusal continues for one year, the recipient's right to the
              disability benefit shall be terminated as of the effective date
              of the original suspension.

      {¶ 20} 3. Pursuant to the statute, respondent provides a form that is annually
mailed to all disability benefit recipients. The form has been revised from time to time
over the years.    However, as pertinent here, the form is captioned "Statement of
Employment and Earnings After Receipt of a Disability Benefit." The form is designated
as form EE.
      {¶ 21} 4. On March 7, 2005, relator executed form EE for calendar year 2004.
The form asks: "Were you employed in the year 2004?" In response, relator marked the
"No" box.     However, relator also indicated that her employer was "Jesus Helper
Messenger." Relator also wrote "Prayer Warrior Messenger."
      {¶ 22} 5. On March 7, 2006, relator executed form EE for the year 2005. The
form asks: "Were you employed in the year 2005?" In response, relator marked the
"Yes" box.
      {¶ 23} The form then asks the name of the employer. In response, relator wrote:
"Christ the King our Lord and Saviour [sic]."
      {¶ 24} The form also asks that the recipient report her earnings for the year.
Relator indicated she had no earnings for the year.
      {¶ 25} 6. On March 16, 2010, relator executed form EE for the year 2009.
Relator indicated by her mark of the "No" box that she was not employed in the year
2009. However, she then wrote that her employer is "Jesus" and that her job duties are
"Helper." She further wrote: "Office Work[,] One Flew Over the Cuckoo Nest. Need
Help. Thank you."
No. 14AP-974                                                                            9


      {¶ 26} 7. According to relator's counsel in this action, relator's completion of the
EE forms for the years 2005, 2006, and 2010 show that relator "did not have full
command of her mental faculties during this time period." (Relator's brief, 1.)
      {¶ 27} 8. On April 26, 2011, Ralph Basile was appointed guardian of the person
of his wife, Lynn Basile, by the Cuyahoga County Probate Court ("probate court").
      {¶ 28} 9. On May 2, 2011, Ralph Basile was appointed guardian of the person and
the estate of Lynn Basile by the probate court.
      {¶ 29} 10. In May 2011, Ralph Basile submitted to OPERS a hand-written letter
informing that he is the guardian of Lynn Basile. In the letter, Ralph Basile provided his
address: "6107 Greene Dr.[,] Brook Park[,] Ohio[,] 44142." Ralph Basile also provided
OPERS letters of guardianship from the probate court.
      {¶ 30} 11. By letter dated March 12, 2012, addressed to both Lynn Basile and
Ralph Basile as guardian, OPERS informed that form EE for the year 2011 had been
received by OPERS, but the form had been completed incorrectly.
      {¶ 31} 12. On March 19, 2012, Ralph Basile completed another form EE for the
year 2011 and he signed the form. Ralph Basile submitted a correctly completed form
EE to OPERS.
      {¶ 32} 13. Form EE completed by Ralph Basile on March 19, 2012 contained the
following preprinted information and advice:
             All disability benefit recipients are required by state law to
             provide information about additional employment and
             earnings after disability. The information will be used to
             assist OPERS in the proper administration of its disability
             benefits program. This form must be completed and
             returned to OPERS no later than April 15, 2012.

             Failure to comply with this request will result in
             suspension of your monthly disability benefit.

(Emphasis sic.)

      {¶ 33} 14. The record contains an internal OPERS document on which OPERS
staff may record information regarding communications between the OPERS member
and OPERS staff. This document is identified in the table of contents to the certified
No. 14AP-974                                                                         10


record as the "OPERS Communication Printout for the period of 01/05/2004 to
09/11/2014." This document shall be subsequently referred to as the "Communication
Printout."
         {¶ 34} 15. The "Communication Printout" contains the following March 19, 2012
entry:
               [T]he EE statement was rejected - spoke w/ Sandra DB adv
               the GDN paperwork has been rec'd & updated - adv the GDN
               need to complete the EE statement.

         {¶ 35} 16. In 2013, as guardian, Ralph Basile failed to submit form EE for the
year 2012.
         {¶ 36} 17. The record contains a letter from OPERS dated February 24, 2014 that
is jointly addressed to "Lynn Iris Basile[,] Ralph F. Basile GDN" at the address: 6107
Greene Dr., Brookpark, Ohio, 44142. The letter states:
               As you may already be aware, your monthly disability
               benefits were suspended effective May 1, 2013 as a result of
               your non-compliance with the Annual Employment and
               Earnings requirement.

               Effective retroactively to April 30, 2013, your monthly
               disability allowance and health care coverage will be
               terminated for non-compliance.

               In order to avoid termination of your disability allowance
               and health care coverage, we must receive the enclosed 2012
               Annual Statement of Employment and Earnings, completed
               in its entirety, in our office by April 15, 2014.

               If the enclosed 2012 Annual Statement of Employment and
               Earnings is not received by April 15, 2014, your monthly
               disability allowance and health care coverage will be
               terminated on April 22, 2014, retroactively to April 30, 2013.

               This will be our final request for this information.

(Emphasis sic.)

         {¶ 37} 18. The "Communication Printout" contains the following April 11, 2014
entry:
No. 14AP-974                                                                            11


               [A]ttempted to contact recipient and guardian re recipient's
               non compliance for E&E process and the termination of her
               monthly benefits. * * * no answer - 2 attempts made and * * *
               - Ralph guardian, call unable to be completed 2 attempts
               made.

         {¶ 38} 19. The record contains a letter from Disability Benefits Supervisor
Jeremy L. Polley dated June 6, 2014. The letter is jointly addressed to "Lynn Iris
Basile[,] Ralph F. Basile GDN" at the appropriate street address. The letter informs:
               This is a follow up to our prior correspondence regarding
               your failure to meet obligations under Ohio law to continue
               receiving benefits from OPERS and the resulting termination
               of your disability benefit. Due to your continued non-
               compliance with these requirements, your disability benefit,
               including health care coverage has been terminated as of
               April 30, 2013.

         {¶ 39} 21. The "Communication Printout" contains the following June 9, 2014
entry:
               Ralph F. Basile/Gdn/ * * * - explained that per letter sent out
               on 6/6/14 Disability benefit has been terminated as on
               4/30/13 due to no response for E&E statements from 2013 &
               2014. Spoke to Sophia/Disability said that mbr/gdn will
               need to send a request in writing to re-instate benefit in
               request needs to give the reason for not responding to opers
               requests, then will be reviewed and disability will determine
               whether the account will be terminated or not. Also needs to
               send in E&Es for 13&14. Adv no turn around time for process
               of determination. Gave fax * * * to send in requests adv can
               not send in E&E for 13 & 14 by fax will need to be sent by
               mail.

         {¶ 40} 22. The "Communication Printout" contains the following June 27, 2014
entry:
               Ralph F. Basile & attorney on phone, guardian auth account
               to be discussed w/ attorney. Advised will need to send in
               completed 2013/2014 E & Es and provide, in writing, a
               request to reinstate benefits along w/ written reason for not
               responding to OPERS E & E requests & other letters
               requesting a response. Letter & completed 2013/2014 E & Es
               will be reviewed. Disability will determine whether the
               account will be reinstated or not.
No. 14AP-974                                                                       12


      {¶ 41} 23. On July 24, 2014, guardian Ralph Basile's attorney, Kevin M. Preston,
faxed the following letter to OPERS:
             The undersigned represents Ralph F. Basile, Guardian of Iris
             L. Basile, ow [sic] Lynn I. Basile, an incompetent (see copy of
             Letters of Guardianship attached). Mrs. Basile is a member
             of OPERS and we are trying to reinstate her benefits which
             were suspended in April, 2013. It would appear that several
             "compliance" forms were mailed to the house address
             (Greene Drive, Brook Park, Ohio) and never made it into the
             hands of the Guardian. Since the ward did not known how to
             complete the forms, it appears that the same were never sent
             in and the benefits were suspended.

             Therefore, Mr. Basile has completed OPERS Form LL-2 to
             have any OPERS documentation requested by me to be sent
             to my address. Please forward to this office any "compliance"
             forms which are due to be filed by Mrs. Basile and any other
             documents which are necessary to reinstate her benefits. By
             his signature below and on the LL-2 form, Mr. Basile is
             requesting that any "compliance" forms required to be filed
             in the future be sent to my address.

      {¶ 42} 24. By letter dated September 10, 2014 from OPERS Associate Counsel
Lauren N. Gresh, Mr. Preston was informed:
             The following information is provided in response to your
             correspondence of July 24, 2014, and pursuant to the
             Authorization for Release of Account Information executed
             by Ralph Basile in his capacity as Guardian of Lynn I. Basile.

             As you are aware, OPERS suspended Ms. Basile's disability
             benefits effective April 1, 2013 due to the failure to comply
             with employment and earnings statements. R.C. 145.362
             provides that each disability benefit recipient shall file with
             the Board an annual statement of earnings and it shall
             annually examine the information submitted by the
             recipient. If the disability benefit recipient refuses to file the
             statement, the benefit shall be suspended until the statement
             and information are filed. If the refusal continues for one
             year, the recipient's right to the disability benefit shall be
             terminated as of the effective date of the original suspension.

             Ms. Basile and her guardian completed several earnings
             statements in the past to continue her receipt of the benefit. I
             have enclosed copies of all relevant forms and
No. 14AP-974                                                                            13


              correspondence for your reference. To OPERS' knowledge,
              the address used to communicate with the guardian
              regarding all account matters was and is still accurate. He
              received the final termination letter that was sent to the
              same address. Even if the guardian was unable to view
              OPERS' many correspondence on this topic, as fiduciary to
              his ward, a guardian would have to be aware that benefits
              were no longer being paid by OPERS for an extended period
              of time and use such knowledge to cure the situation. There
              is presently no opportunity to become compliant with the
              earnings statement after the benefit has been suspended for
              a year and terminated by operation of law.

       {¶ 43} 25. On November 24, 2014, relator, Lynn Basile, and her guardian, Ralph
Basile, filed this mandamus action.
Conclusions of Law:
       {¶ 44} Two issues are presented: (1) whether relator had a clear legal right to
receive the notice provided by former Ohio Adm.Code 145-2-23(B), and (2) whether
respondent abused its discretion in failing to consider reinstatement of the disability
benefit.
       {¶ 45} The magistrate finds: (1) relator did not have a clear legal right to receive
the notice provided by former Ohio Adm.Code 145-2-23(B), and (2) respondent did
abuse its discretion in failing to consider reinstatement of the disability benefit.
       {¶ 46} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
                                        First Issue
       {¶ 47} Ohio Adm.Code 145-1-09 as amended effective May 8, 2014 and in effect
on the date of the September 10, 2014 Gresh letter and currently, states:
              (A) The public employees retirement board authorizes its
              staff to make determinations required under Chapter 145. of
              the Revised Code, including, but not limited to, membership,
              exemptions or exclusions from membership, earnable salary,
              benefits,    and    employer      reporting.     Membership
              determinations may be appealed to the retirement board
              pursuant to rule 145-1-11 of the Administrative Code.
              Determinations mandated by statute may not be appealed to
              the board.
No. 14AP-974                                                                     14


       {¶ 48} Former Ohio Adm.Code 145-2-23 as amended effective March 24, 2013
and in effect on the date of the Gresh letter, stated:
              (A) This rule applies when the public employees retirement
              board either denies an application for a disability benefit
              filed pursuant to section 145.35 of the Revised Code or
              terminates a disability benefit pursuant to section 145.362 of
              the Revised Code.

              (B)

              (1) After the board has either denied an application for, or
              terminated, a disability benefit, the member shall be notified
              in writing of such action.

              (2) The notice shall be sent by regular mail.

              (3) The notice shall include the following information:

              (a) The board's denial or termination of the disability benefit.

              (b) The member's right to file a written request to appeal.
              Such written request to appeal must be received by the board
              no later than thirty days from the date of the notice of denial
              or termination.

              (c) Failure of a member to submit a written request to appeal
              shall make the board's action final as to such application or
              benefit.

              (d) In addition to the written request to appeal, the member
              must also submit additional objective medical evidence. Such
              additional evidence shall be 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 and such evidence has not been
              considered previously by the board. Such additional medical
              evidence shall be presented on a form provided by the
              retirement system.

              (e) Failure to provide the additional medical evidence within
              forty-five days of the member's appeal request shall make the
              board's action final to such application or benefit unless an
              extension for submission of such evidence has been
              requested and granted within the forty-five days. Only one
No. 14AP-974                                                                             15


              extension, not to exceed forty-five days, may be granted by
              the board's staff.

       {¶ 49} According to relator, former Ohio Adm.Code 145-2-23(B) provided her a
clear legal right to receive the notice that informs the member of a right to file a written
request to appeal. It is undisputed that respondent did not issue the notice described at
former Ohio Adm.Code 145-2-23(B). The magistrate disagrees with relator's argument
that she had a clear legal right to the notice.
       {¶ 50} Clearly, relator's situation falls under Ohio Adm.Code 145-1-09(A).
Because respondent's decision regarding the consequences of relator's failure to file the
annual statement of earnings for calendar year 2012 was mandated by R.C. 145.362,
there was no right to appeal the decision to the board.
       {¶ 51} Relator's argument for the applicability of former Ohio Adm.Code 145-2-
23 is focused on paragraph (A) of the rule. To reiterate, former Ohio Adm.Code 145-2-
23(A) provides:
              This rule applies when the public employees retirement
              board either denies an application for a disability benefit
              filed pursuant to section 145.35 of the Revised Code or
              terminates a disability benefit pursuant to section 145.362
              of the Revised Code.

(Emphasis added.)

       {¶ 52} According to relator, because paragraph (A) contains the words
"terminates a disability benefit," it must apply to the termination of a disability benefit
as occurred here. However, relator's argument ignores that paragraph (A) applies when
the board terminates a disability benefit.        Here, the board did not terminate the
disability benefits. Rather, it was the OPERS staff that made the determination to
terminate relator's disability benefit pursuant to Ohio Adm.Code 145-1-09(A). Clearly,
former Ohio Adm.Code 145-2-23 does not provide for a notice regarding a right to
appeal to the board when the determination to terminate the disability benefit is
covered under Ohio Adm.Code 145-1-09.
       {¶ 53} Moreover, it is clear from a reading of former Ohio Adm.Code 145-2-23
that the rule pertains to denial or termination of a disability benefit based upon medical
No. 14AP-974                                                                             16


evidence that the board weighs in reaching its determination. As respondent correctly
puts it here, former Ohio Adm.Code 145-2-23 applied only when the board is
determining the "medical status" of the member. (Respondent's brief, 11.)
       {¶ 54} Thus, the magistrate concludes that relator did not have a clear legal right
to receive the notice provided by former Ohio Adm.Code 145-2-23(B).
                                      Second Issue
       {¶ 55} The second issue is whether respondent abused its discretion when it
refused to consider reinstatement of the disability benefit that had been terminated.
       {¶ 56} On this issue, the focus is upon the September 10, 2014 letter of Associate
Counsel Lauren Gresh, which is the final written decision of respondent.
       {¶ 57} Apparently, Gresh did not consider reinstatement. Rather, she explained
"[t]here is presently no opportunity to become compliant with the earnings statement
after the benefit has been suspended for a year and terminated by operation of law."
This explanation strongly suggests that Gresh believed that R.C. 145.362 prohibits
consideration of reinstatement. However, the statute does not state that a disability
benefit cannot be reinstated following termination.
       {¶ 58} Interestingly, as indicated by several entries on the "Communication
Printout," OPERS staff believed that reinstatement could occur and that it could be
requested. In fact, OPERS advised relator's attorney to submit completed EE forms for
calendar years 2013 and 2014. As the June 27, 2014 entry put it, "[d]isability will
determine whether the account will be reinstated or not."
       {¶ 59} Significantly, there is no evidence in the record to even suggest that relator
was employed during the year 2012 at issue or that she was employed during any other
year since she obtained her disability award in 1995. Thus, relator lost her disability
benefit only because of the failure of her guardian to submit form EE in a timely
manner.
       {¶ 60} Based upon the above analysis, the magistrate concludes that respondent
abused its discretion in failing to consider relator's request for reinstatement of her
disability benefit.
No. 14AP-974                                                                           17


       {¶ 61} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering respondent to consider relator's request for reinstatement of her
disability benefit.


                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE




                              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).
