[THE STATE EX REL.] SCHWABEN, APPELLANT, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM, APPELLEE.
No. 95-2550
SUPREME COURT OF OHIO
Decided August 7, 1996.
76 Ohio St.3d 280 | 1996-Ohio-48
Schools—School bus driver—School Employees Retirement System does not abuse its discretion in denying application for disability retirement benefits, when. (Submitted June 4, 1996.) APPEAL from the Court of Appeals for Franklin County, No. 95APD01-110.
Betty D. Montgomery, Attorney General, and Christopher S. Cook, Assistant Attorney General, for appellee.
DOUGLAS, J.
{¶ 1} 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.
{¶ 2} 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.
{¶ 3} 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
{¶ 4} In September 1993, members of the medical advisory committee for SERS reviewed the medical evaluations of appellant conducted by Codispoti and Hutzler. See
{¶ 6} 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.
{¶ 7} The cause is now before this court upon an appeal as of right.
{¶ 8} 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.
{¶ 9} In her first proposition of law, appellant contends that the only physician competent to adequately assess her condition was her treating physician, Dr. 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
{¶ 10} Appellant‘s contentions are clearly contrary to the express terms of
“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.)
{¶ 11} Pursuant to
{¶ 12} 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
{¶ 13} 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 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.
{¶ 14} Accordingly, we find that SERS did not abuse its discretion in selecting Hutzler to perform the examination of appellant as required by
{¶ 15} 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
{¶ 16} Former
“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.
{¶ 17} 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
{¶ 18} 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
“[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 fordisability 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 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.
{¶ 19} Appellant also suggests that Fair should be overruled because
{¶ 20} 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.
{¶ 22} The plain language of
“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.”
{¶ 23} 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.
STRATTON, J., concurring.
{¶ 24} 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;
ALICE ROBIE RESNICK, J., dissenting.
{¶ 25} It is unreasonable to find someone not entitled to disability retirement benefits where
{¶ 26} 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?
{¶ 27} I would, therefore, reverse the judgment of the court of appeals.
F.E. SWEENEY and PFEIFER, JJ., concur in the foregoing dissenting opinion.