State ex rel. Schwaben v. School Emp. Retirement Sys.

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State: Ohio

Court: Supreme Court

Docket No: 1995-2550

Case Date: 08/07/1996

Plaintiff: State ex rel. Schwaben

Defendant: School Emp. Retirement Sys.

Preview:[The State ex rel.] Schwaben, Appellant, v. School Employees Retirement

System, Appellee.

[Cite as State ex rel. Schwaben v. School Emp. Retirement Sys. (1996), ___

Ohio St.3d ___.]

Schools -- School bus driver -- School Employees Retirement System does not abuse its discretion in denying application for disability retirement benefits, when. (No. 95-2550 -- Submitted June 4, 1996 -- Decided August 7, 1996.)

APPEAL from the Court of Appeals for Franklin County, No. 95APD01-

110.

On January 23, 1995, relator-appellant, Harriet I. Schwaben, filed a

complaint for a writ of mandamus in the Court of Appeals for Franklin County

against the School Employees Retirement System ("SERS"), respondent-

appellee.

In her complaint, appellant alleged that SERS had abused its

discretion in denying her application for disability retirement benefits. The

parties filed an agreed statement of facts, stipulating the evidence to be

considered by the court of appeals.

Appellant began driving a school bus for the Tallmadge City School

District in September 1984. As a result of her employment, appellant was a

member of SERS.

In September 1991, appellant was diagnosed by her

attending physician, Victoria Codispoti, M.D., as suffering from clinical

depression. As part of appellant's treatment, Dr. Codispoti prescribed Prozac

and Desyrel.

Appellant stopped driving a school bus in May 1993. In June 1993,

appellant applied for disability retirement benefits with SERS. In accordance

with required procedures set forth in R.C. 3309.39, the School Employees

Retirement Board selected Jeffery Hutzler, M.D., to examine appellant. Dr.

Hutzler concluded that appellant was capable of driving a school bus.

According to the parties, Hutzler specifically determined that appellant was

"`not incapacitated in any way in her ability to drive a bus. She shows no side

effects from her medication of any sort. In fact, if anything, she is more alert

and capable as a driver because she was treated for her depression.'"

2

In September 1993, members of the medical advisory committee for

SERS reviewed the medical evaluations of appellant conducted by Codispoti and Hutzler. See Ohio Adm. Code 3309-1-41(A).1 The members concurred

with Hutzler's findings that appellant was not incapacitated from performing

her duties as a school bus driver. Thereafter, the chairman of the medical

advisory committee recommended to the retirement board that appellant's

application for disability retirement benefits be denied.

Consequently, on

October 22, 1993, the board denied appellant's application. Appellant then

appealed the denial of her application to the board, but failed to submit additional medical evidence as required by Ohio Adm. Code 3309-1-41(B).2

The board denied appellant's administrative appeal and further request for

reconsideration.

In February 1994, the Summit County Health Department disqualified

appellant as a school bus driver. She was disqualified on the basis that she

used Prozac and Desyrel to control her condition. The prescribed medications

enabled appellant to function adequately as a school bus driver.

3

On November 28, 1995, the court of appeals denied appellant's request

for a writ of mandamus. Relying on Fair v. School Emp. Retirement Sys.

(1978), 53 Ohio St.2d 118, 7 O.O.3d 192, 372 N.E.2d 814, the court of appeals held that SERS3 did not abuse its discretion in denying appellant's application

for disability retirement benefits.

The cause is now before this court upon an appeal as of right.

Kevin R. Sanislo, for appellant.

Betty D. Montgomery, Attorney General, and Christopher S. Cook,

Assistant Attorney General, for appellee.

DOUGLAS, J.

Appellant contends that the court of appeals erred in

denying her request for a writ of mandamus. Specifically, appellant asserts that

SERS abused its discretion in denying her application for disability retirement

benefits. For the reasons that follow, we affirm the judgment of the court of

appeals.

In her first proposition of law, appellant contends that the only physician

competent to adequately assess her condition was her treating physician, Dr.

4

Codispoti, and that SERS abused its discretion in not relying, exclusively, on

the findings of Codispoti in determining whether she was entitled to disability

retirement benefits. In this regard, appellant asserts that Dr. Hutzler should not

have been selected by SERS to conduct an examination of her and that SERS

abused its discretion in relying on Hutzler's findings that she could adequately

perform her duties as a school bus driver. We disagree.

Appellant's contentions are clearly contrary to the express terms of R.C.

3309.39(C). This statute provides:

"Medical examination of a member who has applied for a disability

benefit shall be conducted by a competent disinterested physician or

physicians selected by the retirement board to determine whether the member

is mentally or physically incapacitated for the performance of the member's last

assigned primary duty as an employee by a disabling condition either

permanent or presumed to be permanent for twelve continuous months

following the filing of an application. * * *" (Emphasis added.)

5

Pursuant to R.C. 3309.39(C), Hutzler conducted an examination of

appellant on behalf of SERS. The parties in this case stipulated that Hutzler

was "competent to diagnose, treat, and advise on matters regarding psychiatric

disorders, including clinical depression." The parties further stipulated that

"Dr. Hutzler conducted a thorough examination and evaluation of [appellant's]

condition, and determined that [appellant] was not incapacitated from the

performance of her job duties as a school bus driver." The findings of both

Hutzler and Codispoti were reviewed by SERS.

SERS determined that

appellant was not disabled from performing her job duties and, subsequently,

denied appellant's application for retirement disability benefits.

Clearly, appellant is incorrect in suggesting that SERS abused its

discretion in selecting Hutzler to examine appellant. In selecting Hutzler,

SERS complied with the required procedures set forth in R.C. 3309.39(C).

SERS selected a competent, disinterested physician to examine appellant.

SERS had no duty to rely exclusively on the findings of Codispoti. R.C.

3309.39(C) does not require that SERS consider only the findings of the

6

member's treating physician. See, e.g., State ex rel. McMaster v. School Emp.

Retirement Sys. (1994), 69 Ohio St.3d 130, 630 N.E.2d 701, wherein SERS

considered reports of nontreating physicians who conducted examinations of

the applicant on behalf of SERS in denying retirement disability benefits.

Additionally, we also note that even if SERS had relied exclusively on

Codispoti's findings, there was no evidence in the record before the court of

appeals that Codispoti concluded that appellant was disabled to the extent that

she was incapacitated from performing her duties as a school bus driver. The

parties in this case stipulated the evidence to be considered by the court of

appeals. With respect to Codispoti, the parties stipulated that the doctor was

competent to diagnose, treat and report on matters involving psychiatric

disorders, that she determined appellant suffered from clinical depression, and

that the doctor prescribed Prozac and Desyrel as part of appellant's treatment.

The record does not contain any findings submitted on appellant's behalf by

Codispoti regarding whether appellant was incapacitated from performing her job duties as school bus driver.4 In fact, the only evidence before the court of

7

appeals supports SERS's denial of disability benefits. Appellant stipulated that

the medications prescribed by her treating physician controlled her condition

and allowed her to function adequately as a school bus driver.

Accordingly, we find that SERS did not abuse its discretion in selecting

Hutzler to perform the examination of appellant as required by R.C.

3309.39(C). We also find that SERS, in denying appellant's application for

disability retirement benefits, acted properly in relying upon the findings of

Hutzler and in choosing not to rely exclusively on the findings of Codispoti.

In her second proposition of law, appellant contends that the

determination of whether a disability interferes with a school bus driver's

ability to perform his or her job lies solely within the province of the State

Board of Education, not SERS. Appellant suggests that a school bus driver

who is medically disqualified from driving a school bus pursuant to former

R.C. 3327.10 qualifies, automatically, for disability retirement benefits under

R.C. 3309.39. Again, we disagree.

Former R.C. 3327.10(A) provided:

8

"No person shall be employed as driver of a school bus * * * owned and

operated by any school district * * * in this state, who has not received a

certificate * * * certifying that such person is at least eighteen years of age and

is of good moral character and is qualified physically and otherwise for such

position. The county board or the superintendent * * * shall provide for an

annual physical examination that conforms with rules adopted by the state

board of education of each driver to ascertain his physical fitness for such

employment. * * *" (Emphasis added.) 143 Ohio Laws, Part III, 4725-4726.

In this case, the parties stipulated that appellant was disqualified from

driving a school bus by the county health department because her prescribed

medications were of the type of drugs set forth in Ohio Adm. Code 3301-8307(E)(12).5 Appellant argues that because she was disqualified from driving a

school bus pursuant to Ohio Adm. Code 3301-83-07(E)(12), she is

automatically entitled to disability retirement benefits from SERS. However,

pursuant to R.C. 3309.39, the determination of whether a member of SERS is

entitled to disability benefits rests solely within the province of SERS. See

9

McMaster, 69 Ohio St.3d at 133, 630 N.E.2d at 704, and Fair, 53 Ohio St.2d

118, 7 O.O.3d 192, 372 N.E.2d 814, syllabus. See, also, Buchter, Hastings,

Sheeran & Stype, Ohio School Law (1995-1996) 408-409, T 22.14 (A school

bus driver who is disqualified medically under R.C. 3327.10 does not

automatically qualify for disability benefits under R.C. 3309.39.).

In Fair, a school bus driver and member of SERS was disqualified from

his job by the Mahoning County Board of Education because of a regulation

that precluded persons with diabetes from being school bus drivers. The driver

applied for disability retirement benefits with SERS. SERS determined that the

driver was not disabled from the performance of his duties and, accordingly,

denied the driver's application for benefits. The driver then initiated a suit

against SERS, claiming that he was entitled to disability retirement benefits as

a matter of law. The trial court and the court of appeals ruled in favor of the

driver. On appeal, we reversed the judgment of the court of appeals and held

that the driver was not entitled to benefits because the regulation promulgated

pursuant to former R.C. 3327.10 was not controlling on SERS's determination

10

whether a member was entitled to disability retirement benefits. Specifically,

in reversing the judgment of the court of appeals, we stated:

"[I]t is evident that the role assigned the retirement board in determining

eligibility for disability retirement is much broader than that which the Court of

Appeals would allow. Not only does the statute [former R.C. 3309.39] provide

that the retirement board determine whether a member of the retirement system

is afflicted with a disease or physical impairment, but also whether such

condition will prevent the person from satisfactorily performing his assigned

job duties. Nowhere does this court find that, for purposes of determining

eligibility for disability retirement, the employer (in this cause the State Board

of Education) has the authority to determine the latter.

"In support of their holding that the regulation of the State Board of

Education is controlling, the lower courts cite R.C. 3327.10 which grants

authority to the state board to promulgate regulations establishing the physical

and other qualifications of school bus drivers throughout this state. Although

the above statutory provision supports the action of the state board in

11

promulgating the regulation prohibiting persons afflicted with diabetes from

employment as school bus drivers, this court cannot find any support for the

proposition that a regulation promulgated pursuant to the provision is binding

on determinations of the retirement board concerning eligibility of a member

of the retirement system for disability retirement." (Emphasis added; footnote

omitted.) Id., 53 Ohio St.2d at 120-121, 7 O.O.3d at 194, 372 N.E.2d at 815-

816.

Appellant also suggests that Fair should be overruled because R.C.

3327.10(A) is more specific and was enacted after R.C. 3309.39. Therefore,

appellant claims, regulations promulgated pursuant to R.C. 3327.10(A) should

control SERS's decisions whether an applicant is entitled to disability benefits.

However, we believe that Fair was correctly decided. We concluded in Fair,

and we continue to adhere to the position today, that regulations promulgated

pursuant to R.C. 3327.10(A) are not binding on SERS. R.C. 3327.10 and

3309.39 are entirely separate statutory pronouncements. They do not refer to

the same subject matter. R.C. 3327.10 deals with qualifications of school bus

12

drivers, whereas R.C. 3309.39 governs disability coverage for members of

SERS.

Appellant further suggests that Fair is simply unfair. Appellant cites

former Justice Locher's dissenting opinion in Fair, claiming that a finding by

this court that she is entitled to disability benefits would remove applicants that

are in this type of situation from the "`perpetually revolving door of

bureaucratic confusion.'" Id. at 122, 7 O.O.3d at 195, 372 N.E.2d at 816.

We are aware that our decision today may appear to some to be

inequitable.

However, while it may be tempting to decide this case on

subjective principles of equity and fundamental fairness, this court has a

greater obligation to follow the law. See In re Adoption of Zschach (1996), 75

Ohio St.3d 648 , 664, ___ N.E.2d ___, ___ (Pfeifer, J., dissenting) ("Unlike

Solomon, today's judges cannot base their decisions only on fundamental

fairness.").

The plain language of R.C. 3327.10(A) and 3309.39 supports this court's

position in Fair, 53 Ohio St.2d at 121, 7 O.O.3d at 194, 372 N.E.2d at 816:

13

"To hold that regulations promulgated by the state board pursuant to R.C.

3327.10(A) are binding on the School Employees Retirement System would

not only lack a statutory base, but also would place the determination of

eligibility for disability retirement within the province of an agency having no

responsibilities whatsoever for the administration and control of the retirement

funds. Such a result clearly does not comport with the scheme created by the

General Assembly which established a separate and independent agency to

oversee and manage the school employees retirement funds under R.C. Chapter

3309."

Based on the foregoing, we find that SERS properly concluded that

appellant was not entitled to disability retirement benefits.

Therefore, we

affirm the judgment of the court of appeals denying the writ.

Judgment affirmed.

MOYER, C.J., COOK and STRATTON,JJ., concur.

STRATTON, J., concurs separately.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., dissent.

14

FOOTNOTES:
1

Ohio Adm. Code 3309-1-41(A) provides:

"The school employees retirement board shall appoint three members to

the medical advisory committee who shall be physicians who demonstrate a

wide range of competent medical experience, and a chairman for the medical

advisory committee who shall act as medical advisor to the retirement board.

The chairman shall have authority and responsibility to assign competent and

disinterested physicians to conduct medical examinations of disability

applicants for purpose of determining the member's eligibility for disability

benefits, and to submit to the board a recommendation to accompany the report

of the medical examiner and/or the medical advisory committee. * * *"
2

Ohio Adm. Code 3309-1-41(B)(2) provides:

"The following procedures will govern in cases of a member's appeal of

a denial of disability benefits or a disability benefit recipient's appeal of a

termination of disability benefits.

15

"The individual shall have the right to submit, within fifteen days of the

date on the notice of denial or termination, a notice of intent to appeal by

providing additional objective medical evidence.

Such additional medical

evidence must be received by the retirement board within ninety days from the

date on the notice of denial or termination and must be submitted in writing by

the individual or by counsel and/or personal physician on behalf of the

individual."
3

For sake of convenience, we will hereinafter refer to the School

Employees Retirement Board or the medical advisory committee for SERS as

"SERS."
4

The appendix to appellant's brief before this court contains two reports

issued by Codispoti. The court of appeals, however, did not have the benefit of

either report. Thus, as a reviewing court, this court will not add matter to the

record that was not part of the proceedings before the lower court. See, e.g.,

State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 162, 656 N.E.2d 1288,

1293, quoting State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377

16

N.E.2d 500, paragraph one of the syllabus ("`A reviewing court cannot add

matter to the record before it, which was not part of the trial court's

proceedings, and then decide the appeal on the basis of the new matter.'").
5

Ohio Adm. Code 3301-83-07(E) (12) provides:

"A person may be certified by the appointed examiner as physically

qualified to operate a school bus if the person:

"* * *

"Has no current clinical record of use of amphetamines, amphetamine-

like derivatives, narcotic, psychotropic, or any habit-forming drug."

STRATTON, J., concurring. I reluctantly concur in the majority opinion.

It is well-written, well-reasoned, and the law. Its results, however, seem unfair

and leave Schwaben in a Catch 22 - - SERS declares her not disabled for the

purposes of driving a school bus; the county health department declares her not

qualified to drive a school bus. Schwaben is caught in a bureaucratic cross fire.

However, this is not a remedy for the courts to fashion, but rather the

legislature. The legislature, having created both government entities, is in the

17

best position to harmonize the conflict. For us to do so would be to create

duties or obligations on SERS or the school boards by judicial fiat. We are

correct today in avoiding such a temptation. Therefore, I concur.

Alice Robie Resnick, J., dissenting.

It is unreasonable to find

someone not entitled to disability retirement benefits where Ohio Adm. Code

3301-83-07(E)(12) medically disqualifies that person from operating a

school bus. Although Schwaben is not permitted to operate a school bus due

to being medicated on a disqualifying substance pursuant to the foregoing

section, medical testimony establishes that she is not entitled to disability

retirement benefits because she is competent to drive a school bus.

I am unwilling to simply overlook this contradictory situation and say

that it is not our responsibility to rectify it. I dissent, if for no other reason

than to call this matter to the attention of those who are in a position to

remedy it, since according to the majority it is not our province to correct

this inequity. If it is not our job to see to it that justice is done, then whose is

it?

18

I would, therefore, reverse the judgment of the court of appeals.

F.E. SWEENEY and PFEIFER, JJ., concur in the foregoing dissenting

opinion.

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