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[State Ex Rel.] Nicole Hudson v. Ohio Public Employees Retirement System

October 18, 2011

[STATE EX REL.] NICOLE HUDSON, RELATOR,
v.
OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM, RESPONDENT.



The opinion of the court was delivered by: Tyack, J.

Cite as [State ex rel. Hudson v. Ohio Pub. Emps. Retirement Sys., 2011-Ohio-5362.]

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} Nicole Hudson filed this action in mandamus, seeking a writ to compel the Ohio Public Employees Retirement System ("PERS"), to reinstate her disability benefits.

{¶2} In accord with Loc.R. 12, the case was referred to a magistrate to conduct appropriate proceedings. The parties provided a certified record of proceedings which is contained in eight separate volumes. The parties filed briefs. The magistrate then issued a magistrate's decision which contains detailed findings of fact and conclusions of law. It is appended hereto. The magistrate's decision includes a recommendation that we deny the request for a writ of mandamus.

{¶3} Counsel for Ms. Hudson has filed objections to the magistrate's decision. Counsel for PERS has filed a memorandum in response. The case is now before the court for a full, independent review.

{¶4} Ms. Hudson has displayed a variety of pain-related behaviors over several years. The most frequent diagnosis has been fibromyalgia, which, by its nature, does not involve objective medical findings. She displays some degenerative disc changes in her neck, but nothing consistent with the extreme pain of which she complains. She also displays symptoms consistent with torticollis, a twisting of the neck resulting from pain, but seems able to relax her neck voluntarily. Another diagnosis has been chronic pain syndrome.

{¶5} In 2007, Ms. Hudson was granted disability subject to her engaging in physical therapy, reporting to PERS quarterly, and being examined annually. The award was not modified after a medical examination in 2008.

{¶6} A medical examination in 2009 was done by Kevin Trangle, M.D., who concluded that disability payments should be discontinued. Dr. Trangle's report was reviewed by Maurice C. Mast, M.D., a medical consultant for PERS, who recommended discontinuation of benefits.

{¶7} A follow-up medical examination by Paul T. Scheatzle, D.O., resulted in another finding that Ms. Hudson was not disabled.

{¶8} This report was also reviewed by medical consultants, who generated a second recommendation that disability benefits be discontinued. Following this second recommendation, the benefits were, in fact, terminated.

{¶9} The magistrate's decision further elaborates the conflicting medical reports and opinions related to Ms. Hudson. With that background, we set forth the specific objections presented by Ms. Hudson's counsel:

1. It was error for the Magistrate to find that "when there is some evidence to support the Board's decision, an abuse of discretion has not been shown" * * * and "the record provides some evidence that supports the Board's decision."

2. The Magistrate erred by finding that "Dr. Trangle's opinion concerning the diagnosis of fibromyalgia does not demonstrate bias on his part."

3. The Magistrate erred by ignoring Relator's argument that Respondent's doctor or doctors are not vocational experts and in any way trained on vocational issues and are not qualified to opine with regard to whether Relator can return to her past work. The Magistrate simply ignored that argument.

4. The Magistrate erred by failing to consider the subjective complaints, recognized by the medical doctors that examined her, that keep her from performing her past work.

5. The Magistrate erred by ignoring all of the Relator's medical providers' notes and opinions concerning the seriousness of her condition.

{¶10} As to the first objection, the magistrate followed the legal standards set forth by the Supreme Court of Ohio and this court.

{¶11} The objection is overruled.

{¶12} As to the second objection, Dr. Trangle expressed the mixed feelings of medical personnel with regard to a condition which has its diagnosis based on subjective complaints and not on objective findings. His report is not biased.

{¶13} The second objection is overruled.

{¶14} Addressing the third objection, physicians make physical findings and report their assessment of the physical capacity of the persons they evaluate. The actual decision as to disability is made at PERS, which is deemed to know what a specific job entails and whether an employee is disabled.

{¶15} The third objection is overruled.

{¶16} The fourth objection assumes that the magistrate failed to consider Ms. Hudson's subjective complaints of pain. The magistrate did consider the reports in the record before us, but does not review them on a clean slate. We are required to give deference to the factual findings and the weighing of evidence of PERS. Some of the reports before us could support a finding of disability. Some clearly do not support such a finding.

{¶17} The fourth objection is overruled.

{¶18} As to the fifth objection, the magistrate's decision did not ignore anything presented for review. However, the magistrate's decision does reflect the appropriate deference to the fact finding of PERS.

{¶19} The fifth objection is overruled.

{¶20} All five objections having been overruled, we adopt the findings of fact and conclusions of law contained in the magistrate's decision.

{¶21} As a result, we deny the request for a writ of mandamus.

Objections overruled; writ denied.

FRENCH and CONNOR, JJ., concur.

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[State ex rel.] Nicole Hudson, Relator, v. : No. 10AP-904 Ohio Public Employees Retirement System, : (REGULAR CALENDAR) Respondent.

MAGISTRATE ' S DECISION Rendered on July 29, 2011

Michael A. Malyuk and Scott M. Kolligian, for relator.

Michael DeWine, Attorney General, and Dennis P. Smith, Jr., for respondent.

IN MANDAMUS

{¶22} Relator, Nicole Hudson, has filed this original action requesting that this court issue a writ of mandamus ordering respondent, Ohio Public Employees Retirement System ("PERS"),*fn1 to vacate its decision which terminated her disability benefits and ordering PERS to reinstate those benefits.

Findings of Fact:

{¶23} 1. Relator was employed as an Administrative Assistant to Legal Counsel for the Ohio Department of Job and Family Services in Summit County and was a member of PERS.

{¶24} 2. Relator filed an application for disability benefits on August 15, 2006 and listed her disabling conditions as:

Severe neck, back and arm pain. Severe leg and hip pain. Constant muscle pain and spasms. Cannot sit at a desk or computer for more than a few minutes. Many days I am unable to do anything due to severe pain cause by fibromyalgia. I am unable to hold my neck [and] head up for a long period of time. I have severe nerve pain in my neck, arm [and] legs. Severe fatigue and migraines.

{ΒΆ25} 3. Dr. Roger S. McMillen submitted a "Report of Attending Physician for Disability Applicant," dated August 1, 2006. The diagnosis included fibromyalgia, cervical ...


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