State of Ohio ex rel. Teresa Ewart, Relator-Appellee,
State Teachers Retirement System Board of Ohio, Respondent-Appellant.
from the Franklin County Court of Common Pleas C.P.C. No.
Law Group, LLC, and Eric A. Jones, for appellee.
Yost], Attorney General, John J. Danish, and Mary Therese J
Bridge, for appellant.
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.
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
[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.
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
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