[Cite as DeMatteo v. State Teachers Retirement Sys., 2018-Ohio-3635.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Teri F. DeMatteo,                       :

                Relator,                              :

v.                                                    :                 No. 17AP-678

State Teachers Retirement System and                  :           (REGULAR CALENDAR)
State Teachers Retirement System Ohio
Retirement Board,                                     :

                Respondents.                          :




                                         D E C I S I O N

                                  Rendered on September 11, 2018


                On brief: Law Offices of Gary A. Reeve, and Gary A. Reeve,
                for relator.

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

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, P.J.
        {¶ 1} Relator, Teri F. DeMatteo, has filed an original action requesting this court
issue a writ of mandamus ordering respondent, the Board of the State Teachers
Retirement System, to either vacate its denial of relator's appeal and process that appeal
in a normal fashion, or to vacate respondent's denial of relator's disability benefits
application and grant such benefits retroactive to the date on which she first filed for
benefits.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, the matter was referred to a magistrate of this court. The magistrate issued the
                                                                                             2

appended decision, including findings of fact and conclusions of law, recommending this
court issue a writ of mandamus ordering respondent to accept relator's appeal and give
her the opportunity to present medical evidence which is contrary to the report of the
independent medical examiner.
       {¶ 3} Respondent has filed two objections to the magistrate's report. Specifically,
respondent asserts that: (1) its denial of relator's disability benefits appeal as untimely did
not constitute an abuse of discretion, and (2) there was some evidence to support its
denial of relator's disability benefits application.
       {¶ 4} With respect to the first objection, respondent's arguments regarding
whether it appropriately denied relator's appeal were adequately addressed by the
magistrate.    For the reasons stated in the decision of the magistrate, we overrule
respondent's objection to the magistrate's conclusion that respondent abused its
discretion when it determined relator's notice of appeal was untimely.
       {¶ 5} Respondent's second objection to the magistrate's decision involves the
merit issue, i.e., whether there was some evidence to support respondent's denial of the
application for disability benefits.     However, in light of our determination that the
magistrate properly concluded respondent abused its discretion in denying relator's
administrative    appeal    as   untimely,    we   further   agree   with   the   magistrate's
recommendation that this matter be remanded to respondent to afford relator the
opportunity to present, in accordance with Ohio Adm.Code 3307:1-7-05(2)(a), "additional
medical evidence contrary to the findings of the independent medical examiners."
       {¶ 6} Following an examination of the magistrate's decision, as well as an
independent review of the record, we overrule respondent's objections to the magistrate's
decision. Accordingly, we adopt 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, we grant a writ of mandamus ordering respondent to
accept relator's appeal and to provide her the opportunity to present additional medical
evidence regarding the issue of whether she is entitled to disability benefits.
                                          Objections overruled; writ of mandamus granted.

                                  KLATT and SADLER, JJ., concur.
                                                                                            3

                           _______________APPENDIX


                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State ex rel. Teri F. DeMatteo,                :

              Relator,                         :

v.                                             :                No. 17AP-678

State Teachers Retirement System and           :          (REGULAR CALENDAR)
State Teachers Retirement System Ohio
Retirement Board,                              :

              Respondents.                     :



                          MAGISTRATE'S DECISION

                                  Rendered on April 27, 2018


              Law Offices of Gary A. Reeve, and Gary A. Reeve, for relator.

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


                                      IN MANDAMUS

       {¶ 7} Relator, Teri F. DeMatteo, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, the board of the State Teachers
Retirement System ("STRS" or "board"), to either vacate its denial of relator's appeal,
process that appeal in a normal fashion, or vacate the denial of relator's disability benefits
and grant those disability benefits retroactive to the date on which she first filed.
Findings of Fact:
       {¶ 8} 1. Relator worked at Columbus State Community College ("CSCC") on a
part-time basis as an adjunct instructor in the American Sign Language interpreting
                                                                                         4

major. (Information concerning her schedule and/or number of courses taught was not
found in the stipulation of evidence.)
       {¶ 9} 2. On May 4, 2017, relator filed her application for disability benefits with
STRS. Relator indicated the last day she worked as an adjunct professor at CSCC was
December 19, 2015. Relator listed the following conditions which, in her opinion, were
causing her disability: rheumatoid arthritis and fibromyalgia. In the section where she
was asked to describe specific job duties she was unable to perform due to the disabling
conditions, relator stated:
              As an instructor in the IEP, using sign language is a
              requirement.     Joint swelling and pain caused by the
              rheumatoid arthritis prohibited my physical ability to do so.
              Additionally, chronic fatigue, a symptom of both diseases,
              factored in. Brain fog, a symptom of the fibromyalgia and a
              side effect of the rheumatoid arthritis medication impaired
              my ability to think and process clearly. Driving from
              Johnstown to CSCC was physically challenging and
              exhausting. I was worn out before class even started. Despite
              having lesson plans prepared, it was difficult to stay focused
              and maintain continuity of presenting the material. It was
              frustrating to not be able to freely use sign language as a
              modeling tool for the students.

       {¶ 10} 3. In support of her application, relator submitted the April 24, 2017 report
of her treating physician, Matthew Mundwiler, M.D., who indicated the primary medical
conditions for which he was providing treatment to relator was the rheumatoid arthritis,
and the date of onset was December 2015. Dr. Mundwiler indicated, in his opinion,
relator's rheumatoid arthritis was disabling, was expected to last at least 12 or more
months, and the date the condition first presented relator from completing her job duties
was February 1, 2016. Dr. Mundwiler indicated the fibromyalgia was not, in his opinion,
disabling. Dr. Mundwiler noted the following disabling symptoms: pain, fatigue, and
shortness of breath, and noted the following physical exam findings: synovitis bilateral
hands, slow healing wounds.
       {¶ 11} 4. STRS's Medical Review Board authorized Ronald L. Whisler, M.D., to
examine relator. In his June 22, 2017 report, Dr. Whisler noted relator's chief complaints
were joint, hand, and back pain. Dr. Whisler provided the following explanation of
relator's symptoms:
                                                                                    5

                This member teaches sign language at CSU as an adjunct
                instructor in sign language interpreting major. She states that
                December 2015 she suddenly developed marked swelling and
                stiffness with arthralgias of the hands and wrist – left first
                then right. The symptoms resulted in loss of mobility and
                inability to function at her job and her last day of instruction
                was December 19, 2015.

                Her other musculoskeletal symptoms consist of back pain
                with scoliosis neck pain, left hip pain and bilateral knee pain.
                She states that she has been afflicted with fibromyalgia since
                1992 with associated body pain-fatigue-stiffness-light
                sensitivity-panic attacks-ringing in the ears-flu like
                symptoms- and brain fog. She takes lyrica and Effexor for the
                fibro.

                Her symptoms are every day and all day. Her pain is
                aggravated by standing too long in one position but also
                aggravated by activity. Pain is relieved by heat-rest stretching,
                massage and by Biofreeze. She notes swelling in her fingers
                and her morning stiffness is all day stiffness. Symptoms worst
                am and evening.

                When her hands suddenly swelled, her nurse practice
                specialist ordered blood tests and discovered that the tests for
                rheumatoid arthritis were positive. She was referred to Dr.
                Mundwiler a rheumatologist who prescribed 10 mg weekly
                methotrexate. She continued to have the pain and stiffness
                with swelling. The dose of methotrexate was increased to 20
                mg weekly that was intolerable because of nausea and hair
                loss. She was then prescribed Arava which also induced
                intolerable nausea and the hair loss continued. She has been
                seeing her rheumatologist about every 4-6 weeks and does get
                IM injections of Kenalog which helps her symptoms for about
                1 week.

                A few months ago, she started Enbrel 50 mg weekly and
                tolerated Enbrel well with some lessening of her joint
                symptoms. However, March of this year she was hospitalized
                at Saint Anns with pneumonia. She recovered from the
                pneumonia and for the past three weeks has restarted weekly
                Enbrel injections. She does note injections site redness and
                irritation with the auto-injector device.

(Sic passim.)
                                                                                     6

              Under his physical findings on examination, Dr. Whisler noted:

              Musculoskeletal: all joints examined, no swelling, no
              tenderness, no pain, no limitation of motion and no enthesitis.
              Except for maybe minimal synovial thickening along the ulnar
              styloid, I cannot find any synovitis. Hands do reveal some
              early Heberdens of her DIPs. She does have kyphoscoliosis
              and tenderness trochanteric bursa left hip. Good ROM joints
              – muscle strength and DTRs normal. Gait normal. She has
              good dexterity of the hands and fingers bilateral-good
              strength-mobility. Very good ROM of the wrists and the
              normal hand writing sample enclosed as example of current
              dexterity and fine motor.

       {¶ 12} Dr. Whisler obtained x-rays of relator's hands which showed "minimal
changes that could indicate rheumatoid with no erosions of joint space narrowing except
for the changes of the DIPs with osteoarthritis. The DIP changes are of no functional
consequence." Ultimately, Dr. Whisler opined relator was not permanently and totally
disabled from rheumatoid arthritis, and she had not yet achieved maximum medical
benefits because, in his opinion, additional treatments could be attempted.
       {¶ 13} 5. Three members of the Medical Review Board examined the medical
evidence and submitted their initial recommendations. In his June 29, 2017 report,
Edwin H. Season, M.D., recommended disability benefits be denied, stating:

              Dr. Whisler performed a rheumatology examination and
              concluded that [relator] had rheumatoid arthritis with
              positive rheumatoid factor (involving hands and wrists) and
              fibromyalgia. Dr. Whisler felt [relator] was not permanently
              disabled. Dr. Whisler felt she was capable of full work
              teaching activities.

              Based on the records of Dr. Mundwiler and the IME report of
              Dr. Whisler, I recommend disability benefits be denied.

       {¶ 14} 6. In his June 30, 2017 report, Marc Cooperman, M.D., recommended that
disability benefits be denied, stating:

              An independent medical examination was performed on
              June 22, 2017, by Dr. Ronald Whisler, a specialist in
              Rheumatology. Muscle strength was normal, without
              tenderness or atrophy. Examination of her joints showed no
              swelling, tenderness, pain, limitation of motion or enthesitis.
                                                                                     7

             There was no evidence of synovitis, with the possible
             exception of minimal synovial thickening along the ulnar
             styloid. Joint range of motion was normal. There was good
             dexterity of her hands and fingers bilaterally. Handwriting
             was normal. Wrist range of motion was good. Dr. Whisler
             obtained hand x-rays, which showed minimal changes "of no
             functional consequence." It was Dr. Whisler's opinion that
             [relator] is not disabled.

             It is my opinion that [relator] is not disabled. Despite her
             subjective complaints, there are no objective findings, either
             on physical examination or x-rays, that would prevent her
             from performing her job-related duties, including using her
             hands for signing. Her synovitis is minimal, and she is
             receiving appropriate treatment.

      {¶ 15} 7. In his July 2, 2017 report, James N. Allen, M.D., recommended relator's
disability retirement be approved and she be re-examined in one year, stating:

             In summary, this STRS member has pre-existing fibromyalgia
             that is not disabling. She now has well-substantiated
             rheumatoid arthritis. Although her hand function was good
             when examined by an independent medical examiner,
             rheumatoid arthritis can affect joints more during certain
             times of the day, for example, mornings. Additionally, there
             was soft tissue swelling noted on hand x-rays that would
             suggest that there may still be some degree of active
             inflammatory arthritis. The degree of arthritis is relatively
             mild and would not be disabling for most teaching
             occupations but even a small degree of hand and finger joint
             arthritis could be disabling for a sign language teacher.
             Because of the findings on hand x-rays, I am inclined to
             recommend approval of disability retirement. However,
             because Dr. Whisler has noted that there are treatment
             options that may further improve her hand arthritis, I
             recommend re-examination in 1 year since better control of
             her rheumatoid arthritis will likely allow her to return to work
             in the future.

      {¶ 16} 8. On July 17, 2017, the Medical Review Board met in special conference to
discuss relator's application and recommended disability benefits be denied.       Dr.
Cooperman noted:

             Based on the essentially normal findings by Dr. Whisler, a
             specialist in Rheumatology, it was the unanimous opinion of
                                                                                           8

               the Medical Review Board, with which I concur, that [relator]
               is not disabled. [Relator's] need to use her hands for signing
               was taken into consideration. However, there were not
               objective findings either on her examination or her x-rays that
               would prevent her from continuing to function as an Adjunct
               Instructor.

               Dr. Allen explained his decision to deny disability, stating:

               Today, the STRS Medical Review Board met to discuss
               disability materials regarding [relator]. Previously, I had
               expressed concern that her hand x-rays showed signs of soft
               tissue swelling. However, it was noted in discussion that x-
               rays can show soft tissue swelling without active synovitis. It
               was further discussed that Dr. Whisler provided strong
               evidence from his physical exam and from [relator's]
               handwriting sample that her finger joints are not currently
               involved by her rheumatoid arthritis to the point that would
               result in disability. The Board voted unanimously to deny
               disability.

       {¶ 17} 9. In a letter dated August 18, 2017, relator was informed the board took
official action and denied her application for disability benefits. The letter also explained
relator's right to appeal:

               Medical evaluation and Board action was conducted in
               accordance with section 3307.62 of the Revised Code. You
               have the right to appeal the Retirement Board action under
               Section 3307.62 of the Revised Code and Rule 3307:1-7-05 of
               the Administrative Code, provided written notice of appeal is
               received by STRS Ohio by the close of business, within 15
               calendar days from your receipt of this letter. The request
               must be accompanied by a statement from you, your counsel
               or attending physician that an appeal will be based on
               additional medical evidence contrary to the findings of the
               Medical Review Board. Additional information regarding the
               procedures and deadlines for an appeal will be mailed to you
               if your appeal option is exercised.

               STRS Ohio strictly enforces all deadlines associated
               with appeals. The 15-day deadline for STRS Ohio's
               receipt of your written request for appeal as stated
               above is firm. STRS Ohio will not accept postmark
               dates or any other delay beyond the stated deadline.

(Italics added; bold sic.)
                                                                                             9

        {¶ 18} 10. In a letter dated August 31, 2017 and mailed to STRS at 275 East Broad
Street, Columbus, Ohio 43215-3771, relator exercised her right to appeal the denial of her
disability benefits and indicated she would present additional medical evidence in
support.
        {¶ 19} 11. According to the date stamp on that letter, STRS received it
September 6, 2017.
        {¶ 20} 12. In a letter also dated September 6, 2017, relator was notified her request
for appeal was being denied as untimely. Specifically, that letter provided:

               STRS Ohio strictly enforces all deadlines associated with
               appeals as you were informed. We provided notice to you on
               August 18, 2017, of the Retirement Board's action to deny
               your disability benefits. Priority Mail tracking shows that you
               received this notice on August 21, 2017. Your right to appeal
               the STRS Ohio Retirement Board action to deny your
               disability benefits required a written appeal request to be
               received by STRS Ohio by the close of business on September
               5, 2017. A request to appeal was received from you at the
               STRS Ohio building on September 6, 2017.

               Since the appeal request was not received by the close of
               business on September 5, 2017, STRS Ohio cannot grant the
               request for an appeal.

(Emphasis added.)
        {¶ 21} 13. Thereafter, relator filed the instant mandamus action in this court
asserting, in part, that STRS's method of picking up its mail caused her timely notice to be
late.
        {¶ 22} 14. As part of its response to this mandamus action, STRS acknowledged
"mail is picked up twice a day between 6:00 and 6:30 a.m. and again between 9:00 and
9:30 a.m."
        {¶ 23} 15. Following oral argument, the matter is currently before the magistrate.
Conclusions of Law:
        {¶ 24} For the reasons that follow, it is this magistrate's decision this court should
issue a writ of mandamus ordering respondent to accept relator's filing of her notice of
appeal timely and to conduct further proceedings in accordance with law.
                                                                                           10

       {¶ 25} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 26} Mandamus is the appropriate remedy where there is no statutory right of
appeal from a decision of a public retirement system. State ex rel. Pipoly v. State
Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219; State ex rel. Mallory v.
Pub. Emp. Retirement Bd., 82 Ohio St.3d 235 (1998); State ex rel. Van Dyke v. Pub. Emp.
Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123; State ex rel. Schaengold v. Pub.
Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760. As such, the determination
by STRS and its retirement board of whether a person is entitled to disability retirement
benefits is reviewable in mandamus because R.C. 3307.62 does not provide for an appeal
from the administrative determination. Id. Determination of whether a member of STRS
is entitled to disability retirement is fully within the discretion of the board. See R.C.
3307.62(F); Fair v. School Emps. Retirement Sys., 53 Ohio St.2d 118 (1978).
       {¶ 27} R.C. 3307.62 pertains to disability coverage and provides in pertinent part:

              (A) The state teachers retirement system shall provide
              disability coverage to each member participating in the STRS
              defined benefit plan who * * *:

              (1) * * * has at least five years of qualifying service credit;

              ***

              (B) Application for a disability benefit may be made by a
              member * * *.

              The application for a disability benefit shall be made on a
              form approved by the board. * * *

              ***

              (C) Medical examination of the member shall be conducted
              by a competent, disinterested physician or physicians selected
              by the board to determine whether the member is mentally or
              physically incapacitated for the performance of duty by a
              disabling condition, either permanent or presumed to be
                                                                                   11

              permanent for twelve continuous months following the filing
              of an application. * * *

              (D) Application for a disability benefit must be made within a
              two-year period from the date the member's contributing
              service terminated * * *.

              (E) If the physician or physicians determine that the member
              qualifies for a disability benefit, the board concurs with the
              determination, and the member agrees to medical treatment
              as specified in division (G) of this section, the member shall
              receive a disability benefit under section 3307.63 or 3307.631
              of the Revised Code. If such physician or physicians
              determine that the member does not qualify for a disability
              benefit, the report of the examiner or examiners shall be
              evaluated by a board of medical review composed of at least
              three physicians appointed by the retirement board.

              (F) The state teachers retirement board shall render an order
              determining whether or not the applicant shall be granted a
              disability benefit. Notification to the applicant shall be issued,
              and upon the request of an applicant who is denied a
              disability benefit, a hearing or appeal relative to such order
              shall be conducted in accordance with procedures established
              by the retirement board.

              (G) The state teachers retirement board shall adopt rules
              requiring each disability benefit recipient, as a condition of
              continuing to receive a disability benefit, to agree in writing to
              obtain any medical treatment recommended by the board's
              physician and submit medical reports regarding the
              treatment. * * *

       {¶ 28} Supplementing R.C. 3307.62 is Ohio Adm.Code 3307:1-7-05, which
provides in pertinent part:
              The following procedures are hereby established for the
              appeal of any denial or termination of disability benefits by
              the retirement board following an independent medical
              examination by the state teachers retirement system.

              (A) At least seven days before a recommendation is presented
              to the retirement board, written notification shall be issued to
              the applicant or recipient. This notice shall include the
              recommendation to be presented to the board.

              ***
                                                                                         12

               (B) Following board action terminating or denying disability
               benefits:

               (1) The applicant or recipient will be informed in writing of
               the action taken by the board. Notification shall include:

               (a) A statement that medical evaluation and board action was
               conducted in accordance with section 3307.48 or 3307.62 of
               the Revised Code.

               (b) Confirmation that the applicant or recipient has the right
               to appeal the board action.

               (c) A statement explaining that written notice of appeal must
               be filed with the retirement system no later than fifteen
               calendar days from receipt of notification of denial or
               termination.

               (d) An explanation of future rights and limitations upon the
               rights to again apply for disability benefits if an appeal is not
               pursued.

               (2) Procedure for exercising right to appeal:

               (a) Written notice of appeal, accompanied by a statement
               from the applicant or recipient, his or her counsel and/or
               attending physician that an appeal will be based on contrary
               to the findings of the independent medical examiners, must
               be filed with the retirement system within fifteen calendar
               days of receipt of notification of board action.

       {¶ 29} R.C. 3307.62 and Ohio Adm.Code 3307:1-7-05 require that an applicant for
disability benefits has 15 days from the date they received notice their disability has been
denied to appeal.      In the present case, relator had until September 5, 2017, and
respondent asserts it did not receive relator's notice of appeal dated August 31, 2017 until
September 6, 2017, one day late.         Ohio Adm.Code 3307:1-7-05(B)(1)(c) specifically
requires the board to notify the member denied disability that "written notice of appeal
must be filed with the retirement system no later than fifteen calendar days from receipt
of notification of denial."
       {¶ 30} As noted in the findings of fact, respondent's August 18, 2017 letter to
relator informing her that her application for disability benefits had been denied informed
her that she had the right to appeal "provided written notice of appeal is received by the
                                                                                          13

STRS Ohio by the close of business, within 15 calendar days from your receipt of this
letter." Further, that letter provides the following address to which an appeal would be
mailed: 275 East Broad Street, Columbus, Ohio 43215-3771. When relator mailed her
notice of appeal, she mailed it to that same address. Nowhere in the notice was relator
informed that her notice of appeal had to be "filed" within 15 days.
       {¶ 31} As indicated previously, respondent acknowledges it picks up mail two
times each day: first, between 6:00 a.m. and 6:30 a.m., and second, between 9:00 a.m.
and 9:30 a.m. Given this fact, respondent is acknowledging mail is delivered to its
building between 6:30 a.m. and 9:00 a.m. on the same day. Further, respondent is also
acknowledging mail is delivered to its building after 9:30 a.m. and prior to 6:00 a.m. on
the following day. This is the only logical conclusion to be reached. It does not appear
respondent makes any effort to pick up mail at a time which is near to the "close of
business." Further, respondent has never indicated whether or not relator's notice of
appeal was picked up on September 6 at 6:30 a.m. (meaning it was delivered to the
building after 9:30 a.m. on September 5 and before 6:00 a.m. on September 6), just that
respondent stamped it as being received on September 6, 2017.
       {¶ 32} Respondent's notice to relator and to other applicants is deficient because it
does not inform applicants that their notice of appeal must be filed—the notice only
informs applicants that their notice of appeal must be received. Furthermore, the notice
tells applicants their notice of appeal must be received by the close of business on the 15th
day. The magistrate finds that in failing to follow Ohio Adm.Code 3307:1-7-05(B)(1)(c)
and misinforming applicants of the requirements to file appeals, respondent has created a
clear legal right to applicants and has imposed a clear legal duty on itself to actually
process the mail that arrives at its building address at the close of business. Respondent
clearly fails to do so here.
       {¶ 33} In Brass Pole v. Ohio Dept. of Health, 10th Dist. No. 08AP-1110, 2009-
Ohio-5021, this court stated:
               Where a statute confers the right of appeal, an appeal may be
               perfected only in the manner prescribed by statute. Camper
               Care, Inc. v. Forest River, Inc., 10th Dist. No. 08AP-146,
               2008-Ohio-3300 (citations omitted).         Ohio courts have
               consistently held that "a party adversely affected by an agency
               decision must * * * strictly comply with R.C. 119.12 in order to
                                                                                          14

              perfect an appeal." Hughes [v. Ohio Dept. of Commerce, 114
              Ohio St.3d 47, 2007-Ohio-2877], at ¶ 17. And, as stated
              above, Ohio courts, including this one, have held that the
              failure to file a notice of appeal with the appropriate agency
              within the 15-day limit provided for in R.C. 119.12 is a
              jurisdictional defect. Frasca [v. State bd. of Chiropractic
              Examiners (July 30, 1998), 10th Dist. No. 97APE10-1387];
              Harrison [v. Ohio State Med. Bd. (1995), 103 Ohio App.3d
              317].

              Depositing the notice of appeal in the mail does not constitute
              a filing under R.C. 119.12. To be timely filed, a notice a notice
              of appeal must be received within the time period set forth in
              R.C. 119.12. Watts v. Ohio Dept. of Ins., 8th Dist. No. 87849,
              2007-Ohio-81; Leonard v. Ohio Bd. of Nursing (June 8,
              2000), 10th Dist. No. 99AP-1154, 2000 Ohio App. LEXIS
              2407; Frasca; Burton v. Dept. of Agriculture (Feb. 9, 1993),
              10th Dist. No. 92AP-1499, 1993 Ohio App. LEXIS 782.

       {¶ 34} Respondent contends the factual situation presented here is similar to the
factual situation presented in Wiltz v. Accountancy Bd. of Ohio, 10th Dist. No. 16AP-169,
2016-Ohio-8345. In that case, Cassandra Wiltz appealed a decision from the Court of
Claims of Ohio. As part of her case, Wiltz argued she mailed her objections to the Court of
Claims by overnight express mail, and the mail was received and available for pick-up on
the day it was due to be filed. Id. at ¶ 21. Wiltz asserted she had a USPS tracking receipt
indicating her objections were received and available for pick-up at the Court of Claims'
post office on January 6, 2016. Id. The Court of Claims rejected Wiltz's evidence noting it
was her duty, and not the duty of the court, to ensure her objections were timely filed with
the court within 14 days pursuant to Civ.R. 53(B)(3)(b)(i). On appeal, this court held the
Court of Claims did not abuse its discretion when it determined that Wiltz's filing was
untimely. Respondent asserts, in the present case, it was relator's duty to ensure that her
noticed arrived at STRS in time.
       {¶ 35} The magistrate finds the facts presented in this case differ significantly from
the facts in the Wiltz case. First and foremost, Civ.R. 53(B)(3)(b)(i) provides written
objections to a magistrate's decision must be filed within 14 days of the filing of the
decision. By comparison, while Ohio Adm.Code 3307:1-7-05(B)(2)(a) does indicate that a
notice of appeal accompanied by a statement that the appeal will be based on evidence
contrary to the findings of the independent medical examiners must be filed with the
                                                                                           15

retirement system within 15 calendar days of receipt of notification of the board's action,
the letter which respondent sent to relator does not discuss the filing of the appeal.
Instead, the letter STRS sent relator notifying her she had a right to appeal the denial
specifically provides she has until the close of business within 15 days from her receipt of
the letter. Nothing in the notice informs relator that she must file a notice of appeal, only
that said notice must be received by STRS by the close of business. Respondent cannot
provide applicants with information regarding their appeal which appears to be false,
granting the applicants more than the Ohio Administrative Code provides and then not
expect applicants will actually rely on that information.
       {¶ 36} Second, in Wiltz, the objections were sent to a post office box.          Here,
relator's notice of appeal was sent to the office building where respondent has its offices as
instructed. Third, in the letter denying relator the opportunity to appeal, STRS stated that
her request was being denied because it "was not received by the close of business on
September 5, 2017." Respondent acknowledges it does not check its mail at the close of
business; instead, if mail is not received by 9:30 in the morning on the day it is due to be
received, the mail, including relator's appeal herein, is considered to be late.         The
magistrate finds to do so results in a patently unfair result, which relator and other
applicants who have found or may find themselves in the same situation do not deserve.
People work and contribute money to their retirement systems expecting that retirement
or disability benefits will be available when they need it. Here, relator did not miss out on
her opportunity to appeal the denial of her disability benefits because of a technicality;
instead, she missed out on her opportunity to file an appeal because respondent does not
pick up its mail anywhere near the close of business despite the fact it tells applicants the
close of business is the benchmark, the last moment their appeal must be received, and
ignores that portion of the Ohio Administrative Code requiring people be informed an
appeal must be filed.
       {¶ 37} Relator also argues this court should simply grant a writ of mandamus
ordering respondent to grant her disability application on grounds the medical evidence
supports such a finding. However, the magistrate finds this court is not in a position to
consider the medical evidence presented and determine whether or not relator's disability
application should have been granted.
                                                                                        16

       {¶ 38} Based on the foregoing, it is this magistrate's decision that respondent did
abuse its discretion when it determined relator's notice of appeal was untimely, and this
court should issue a writ of mandamus ordering respondent to accept relator's appeal and
give her the opportunity to present medical evidence which is contrary to the report of the
independent medical examiner, and, thereafter, respondent should make a determination
as to whether or not relator is entitled to disability benefits.




                                                /S/ MAGISTRATE
                                                STEPHANIE BISCA




                               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).
