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State ex rel. Ewart v. State Teachers Retirement System Board of Ohio

Court of Appeals of Ohio, Tenth District

June 20, 2019

State of Ohio ex rel. Teresa Ewart, Relator-Appellee,
v.
State Teachers Retirement System Board of Ohio, Respondent-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 17CV-11214

         On brief:

          Jones Law Group, LLC, and Eric A. Jones, for appellee.

          [Dave Yost], Attorney General, John J. Danish, and Mary Therese J Bridge, for appellant.

         Argued:

          Eric A. Jones.

          Lydia M. Zigler.

          DECISION

          SADLER, J.

         {¶ 1} Respondent-appellant, State Teachers Retirement System Board of Ohio ("STRB"), appeals the September 26, 2018 judgment of the Franklin County Court of Common Pleas granting the writ of mandamus requested by relator-appellee, Teresa Ewart, and ordering STRB to reinstate appellee's disability benefits. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings consistent with this decision.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellee worked as an eighth grade science teacher in a public school system, and is a member of the State Teacher Retirement System ("STRS"). In May 2014, she submitted a disability benefit application listing "chronic laryngitis" and "vocal cord scar" as disability conditions. (Record of Proceedings at 15.) Appellee's attending physician, Dr. Paul Bryson, provided a report dated May 12, 2014 indicating that following an examination, bioposy, and videostroboscopy, these stated conditions were permanently disabling "from a voice standpoint." (Record of Proceedings at 31.) Dr. Bryson certified his opinion that appellee "is currently" incapacitated and the disability "is currently" considered to be permanent. (Record of Proceedings at 30.)

         {¶ 3} The medical review board of STRS asked Dr. L. Arick Forrest to act as an independent medical physician in the case. In June 2014, Dr. Forrest examined appellee and performed a "flexible fiberoptic laryngoscopy with stoboscopy" ("laryngoscopy"). (Record of Proceedings at 38.) The procedure revealed: "[t]he true vocal cords are mobile bilaterally. The medial edges appear straight. There was incomplete closure with a small anterior gap at areas 1 and 2. The mucosal wave was reduced in the anterior third on the left. There is mild interarytenoid pachydermia and post cricoid edema." (Record of Proceedings at 38.) Dr. Forrest's impression upon examination was that appellee's "current hoarseness/voice changes are consistent with: Vocal cord scarring" and that her "[v]oice is disproportionate to the physical findings." (Record of Proceedings at 39.) Dr. Forrest opined that in her current state it would be difficult for appellee to return to work, but that the condition "should be considered a short-term disability (3-6 months)" in order to evaluate her response to therapy. (Record of Proceedings at 39.) Dr. Forrest certified that appellee should not be considered or presumed permanently incapacitated and that she should not be retired.

         {¶ 4} Based on Dr. Forrest's recommendation, the chair of the STRS medical review board advised a medical treatment period of six months prior to making the determination of disability. In September 2014, Dr. Bryson sent STRS an update, noting the initial benefit appellee received from a left vocal cord injection diminished since she returned to teaching. Dr. Bryson performed a "Left medialization laryngoplasty" on appellee at the end of October 2014. (Record of Proceedings at 55.) At a follow up visit to the surgery, Dr. Bryson noted "some improvement" including improvement of glottis closure. (Record of Proceedings at 51.) At a subsequent January 2015 follow up visit, Dr. Bryson stated "[t]here continues to be chronic hoarseness and recurrent vocal fold inflammation * * * despite maximal medical therapy and surgical therapy." (Record of Proceedings at 57.)

         {¶ 5} Dr. Forrest conducted a follow-up examination and laryngoscopy in February 2015. The procedure revealed: "[t]he true vocal cords are mobile bilaterally. The medial edges appear straight. The left true fold is more full as compared to her last exam. The true folds have mild erythema. There was near complete closure. The mucosal wave was present with reduced amplitude. There is mild interarytenoid pachydermia and post cricoid edema." (Record of Proceedings at 67-68.) Dr. Forrest's impression was that appellee's "current hoarseness/voice changes are consistent with: Vocal cord scarring s/p surgery" and that her "[v]oice is still disproportionate to the physical findings. The degree of pain is not typical for vocal cord scarring." (Record of Proceedings at 68.) Dr. Forrest opined that "[b]ased on her current voice and odynophonia it would be difficult for [appellee] to return to work from a physical and psychological perspective," but still considered the condition a short-term disability (three to six months) in order to further evaluate the cause or source of the pain. (Record of Proceedings at 68.) Dr. Forrest certified his opinion that appellee is not disabled.

         {¶ 6} Three physicians, Dr. James Allen, Dr. Albert Kolibash, and Dr. Barry Friedman, reviewed appellee's records and the recommendations of Drs. Forrest and Bryson. Drs. Allen and Friedman favored granting disability, with recommendations to reevaluate appellee in one-year. Dr. Kolibash had concerns with appellee's ability to perform her teaching responsibility and requested to discuss options with the STRS medical review board prior to making a final recommendation. By letter dated April 14, 2015, the medical review board of STRS recommended granting disability benefits, and STRB followed the recommendation.

         {¶ 7} Appellee was reevaluated by both Drs. Bryson and Forrest in 2016. Dr. Bryson's reevaluation on May 4, 2016 included a physical examination and laryngoscopy. Dr. Bryson's report states that appellee's "[v]oice remains severely hoarse and use is associated with pain and discomfort that is managed by rest and pain management. Exam reveals a well medialized left vocal fold but with persistent diminished pliability bilaterally. Closure is complete." (Record of Proceedings at 80.) According to Dr. Bryson, appellee's prognosis for recovery was "poor" and she would not be able to return to vocal demands of prior teaching. (Record of Proceedings at 80.)

         {¶ 8} Dr. Forrest's reexamination on August 15, 2016 of appellee also consisted of a physical examination and a laryngoscopy. The procedure showed: "[t]he true vocal cords are mobile bilaterally with some reduced abduction on the left. The medial edges appear straight, except for a prominent left vocal process. The left true fold is more full as compared to her last exam and has mild erythema. There was near complete closure. The mucosal wave was present with reduced amplitude on the left. There is mild interarytenoid pachydermia and post cricoid edema." (Record of Proceedings at 92.) Dr. Forrest states as his impression and plan:

[Appellee] has hoarseness/voice changes related to her vocal cord scarring s/p surgery and vocal fold atrophy/vocal cord paresis s/p medialization laryngoplasty. [Appellee]'s voice and degree of pain is disproportionate to the physical findings. The severity and chronic nature of her pain is very atypical for vocal cord scarring.
Based on her current voice and odynophonia it would be difficult for her to return to work from a psychological perspective. I still feel this should be considered a short term disability (3-6 months) to further evaluate the etiology of the pain. Based on the disparity between exam and symptoms there certainly could be a functional or psychological component. The systems being disproportionate to the physical findings has been consistent across her three examinations.

         (Record of Proceedings at 92.) Dr. Forrest ultimately certified that appellee was not capable of resuming her job and that disability benefits should be continued. He also indicated that he did not presume such disability to be permanent and recommended reexamination in 6 to 12 months.

         {¶ 9} The STRB requested Dr. Joel Steinberg provide an independent psychiatric evaluation of appellee. After examining appellee in September 2016 and reviewing her medical records, Dr. Steinberg noted she failed one of the three symptom validity tests, which raised some doubt as to how much credibility could be placed on other tests and the history offered by appellee. In his discussion, Dr. Steinberg states that he is "not able to comment" on whether the pain appellee experiences is considerably more than what is typical with laryngeal scarring. (Record of Proceedings at 112.) According to Dr. Steinberg, a psychological source of her pain is a possibility, but he believed it was more likely that pain and resulting limitation are the causes of her psychiatric distress. Dr. Steinberg additionally notes "there is no evidence * * * that her vocal cord situation is any better now than it was at the time that she began receiving STRS benefits." (Record of Proceedings at 113.) Overall, it was Dr. Steinberg's impression that appellee had "Major Depressive Disorder, recurrent type, currently of moderate severity," and concluded that her psychiatric problems were not disabling. (Record of Proceedings at 113.) Dr. Steinberg certified that, on a psychiatric basis alone, appellee is capable of resuming her job and that disability benefits should not continue.

         {¶ 10} On January 9, 2017, Dr. Forrest reexamined appellee; his report does not show he conducted a new laryngoscopy. Under his impression/plan, Dr. Forrest states: "[Appellee] has hoarseness/voice changes related to her vocal cord scarring s/p surgery and vocal fold atrophy/vocal cord paresis s/p medialization laryngoplasty. [Appellee's] voice and degree of pain is disproportionate to the physical findings and this could be compensatory muscle tension dysphonia. Based on her current voice and odynophonia it would be difficult for her to return to work from a psychological perspective." (Record of Proceedings at 117.) Dr. Forrest certified that appellee was not capable of resuming her job and that disability benefits should be continued. When asked whether appellee's subjective complaints and symptoms correlate with the medical evidence, Dr. Forrest checked the box for "Yes." (Record of Proceedings at 119.)

         {¶ 11} By letter dated January 24, 2017, the STRS medical review board asked Dr. Forrest to clarify his opinion, asking "[f]rom an ENT perspective only, does [appellee] have objective painful dysphonia that would interfere with her functioning as a teacher?" (Record of Proceedings at 120.) Dr. Forrest submitted a new reexamination form dated February 21, 2017, that stated appellee was capable of resuming regular full-time service similar to that from which she was retired and that disability benefits should not be continued. When asked whether appellee's subjective complaints and symptoms correlate with the medical evidence, Dr. Forrest checked the box for "No" and states, "[o]n medical exam, there is no evidence that [appellee] cannot teach. Her only limitation is her perception of pain with speaking." (Record of Proceedings at 122.)

         {¶ 12} Three physicians, Dr. Marc Cooperman, Dr. Allen, and Dr. Jeffery Hutzler, reviewed appellee's medical records and the various recommendations. Dr. Cooperman concluded appellee remained disabled based on her vocal cord problems, which cause her hoarseness, pain, and inability to speak for prolonged periods. He believed it is possible her condition would improve with therapy, and recommended repeat examination in one year. By letter dated March 7, 2017, Dr. Allen found no objective evidence of a laryngeal or psychiatric condition that prevents her from returning to work. Instead, Dr. Allen thought it appeared appellee fell into a category of chronic pain, which "is difficult to justify disability as a teacher purely on a pain diagnosis." (Record of Proceedings at 126.) He favored terminating benefits, but recommended a special conference of the STRS medical review board to discuss the matter. Dr. Hutzler concluded in a March 8, 2017 letter that appellee's hoarseness and pain was primarily based on a psychiatric disorder, and she is not disabled from a psychiatric standpoint. Dr. Hutzler believed appellee was capable of returning to work and that benefits should not be continued.

         {¶ 13} By three separate letters dated March 20, 2017, Drs. Cooperman, Allen, and Hutzler indicated that the STRS medical review board met in a special conference to consider the reexamination of appellee, after which the medical review board voted unanimously to terminate disability benefits. The letter from Dr. Allen states at the conference the medical review board noted appellee has had laryngoscopies that have not demonstrated an objective basis for her hoarseness and throat pain, and that members of the medical review board raised the question of whether she may have an underlying somatization disorder, which does not warrant disability. However, Dr. Allen concluded that regardless of a somatization disorder, appellee has a "chronic pain syndrome without significant structural laryngeal abnormalities" and states "[c]hronic pain syndromes are rarely, if ever, grounds for disability as a teacher." (Record of Proceedings at 132.)

         {¶ 14} On April 4, 2017, Dr. Bryson wrote a letter to STRS reiterating his opinion that appellee is vocally disabled. On April 20, 2017, STRB, noting the condition benefits were approved upon was "[h]oarseness," took official action to terminate appellee's disability benefits under R.C. 3307.48, effective August 31, 2017. (Record of Proceedings at 135.)

         {¶ 15} Appellee administratively appealed the termination decision, submitted additional medical records from Drs. Bryson and David Brinkman-Sull, a mental health practitioner, and requested a hearing pursuant to Ohio Adm.Code 3307:1-7-05. Following review of her case and the new medical data submitted, the STRS medical review board requested an additional independent medical examination from Dr. Blaize O'Brien and for Dr. Steinberg to review the additional material submitted by appellee.

         {¶ 16} Dr. O'Brien conducted a physical examination and laryngoscopy on appellee. The notes from the laryngoscopy indicate "[s]light glottic gap" of the right true vocal cord. (Record of Proceedings at 212.) No other abnormalities were revealed. Dr. O'Brien concluded that appellee was not medically incapacitated. He indicated that appellee's subjective complaints and symptoms do correlate with medical evidence, but, that his findings on appellee's physical exam "do not correlate well with the degree of impairment that she is experiencing." (Record of Proceedings at 211.) According to Dr. O'Brien, nothing he found on the exam would preclude appellee from returning to teaching. Dr. O'Brien certified that appellee is capable of resuming regular full-time service similar to that from which she retired and that disability benefits should not be continued.

         {¶ 17} Dr. Steinberg reviewed the entire file, including the records appellee provided from Dr. Brinkman-Sull. He certified his previous opinion that, on a psychiatric basis alone, appellee is capable of returning to service and that disability should not be continued. Dr. Steinberg noted that he did "not identify the pain ...


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