# State ex rel. Lewis v. Ohio Pub. Emps. Retirement Sys.

> Ohio Court of Appeals · February 18, 2025 · 2025 Ohio 525

URL: https://www.frixlaw.com/law-library/cases/10802032

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** February 18, 2025
- **Citations:** 2025 Ohio 525
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Boggs
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10802032

## Opinion text

[Cite as State ex rel. Lewis v. Ohio Pub. Emps. Retirement Sys., 2025-Ohio-525.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Bret E. Lewis, :

Relator, :

v. : No. 23AP-80

The Ohio Public Employees : (REGULAR CALENDAR)
Retirement System,
:
Respondent.
:

D E C I S I O N

Rendered on February 18, 2025

On brief: Hanna Rasnick Evanchan Palmisano Hobson &
Fox, LLC, and Scott M. Kolligian, for relator.

On brief: Dave Yost, Attorney General, Samuel A.
Peppers, III, and Lisa A. Reid, for respondent.

IN MANDAMUS

BOGGS, J.

{¶ 1} Relator, Bret E. Lewis, seeks a writ of mandamus ordering respondent, the
Ohio Public Employees Retirement System (“OPERS”), to vacate its order that denied his
request for disability benefits and to enter an order granting said benefits. For the following
reasons, we deny his request for a writ of mandamus.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate considered the action on its merits
and issued a decision, including findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that Lewis did not establish that he was entitled to a writ
of mandamus through clear and convincing evidence that he had a clear legal right to the
No. 23AP-80 2

requested relief, that there was a clear legal duty for OPERS to provide that relief, and that
there was a lack of an adequate remedy in the ordinary course of the law.
{¶ 3} No objections have been filed to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision unless the court determines
that there is an error of law or other defect evident on the face of the decision.” Civ.R.
53(D)(4)(c).
{¶ 4} Upon review, we find no error in the magistrate’s findings of fact or
conclusions of law. Therefore, we adopt the magistrate’s decision, including the findings of
fact and the conclusions of law therein, as our own and conclude that Lewis has failed to
establish a right to a writ of mandamus.
Petition for writ of mandamus denied.
BEATTY BLUNT and MENTEL, JJ., concur.
No. 23AP-80 3

APPENDIX
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Bret E. Lewis, :

Relator, :

v. : No. 23AP-80

The Ohio Public Employees : (REGULAR CALENDAR)
Retirement System,
:
Respondent.
:

M A G I S T R A T E’ S D E C I S I O N

Rendered on October 21, 2024

Hanna Rasnick Evanchan Palmisano Hobson & Fox, LLC,
Scott M. Kolligian, for relator.

Dave Yost, Attorney General, Samuel A. Peppers, III, and
Lisa A. Reid, for respondent.

IN MANDAMUS

{¶ 5} Relator, Bret E. Lewis, has filed this original action requesting that this court
issue a writ of mandamus ordering respondent, The Ohio Public Employees Retirement
System (“OPERS”), to vacate its order that denied his request for disability benefits, and to
enter an order granting said benefits.

Findings of Fact:
{¶ 6} 1. In August 2020, relator contracted COVID-19, while employed by his
employer, Central Ohio Transit Authority (“COTA”), as a bus operator.
No. 23AP-80 4

{¶ 7} 2. COTA participates in the OPERS retirement system.
{¶ 8} 3. In a February 24, 2021, report, Shengyi Mao, M.D., reported the following
with regard to relator: has not worked since September 9, 2020; fatigue; brain fog; backed
out of his driveway and hit a fence in December, which he has never done before; work has
not allowed adjustments to his schedule and duties; constantly tired; forgets things;
occasional joint pain; tightness in the chest; gets tired easily; gets tired vacuuming; walks
about 2 miles per day but used to do 5 to 10 miles; more anger; loss of appetite; and trouble
sleeping.
{¶ 9} 4. In an April 6, 2021, progress note, Dr. Mao reported the following with
regard to relator: fatigue; brain fog; long-haul COVID symptoms; lack of focus; eating
better; and going to park daily.
{¶ 10} 5. In a June 18, 2021, report, Dr. Mao reported the following with regard to
relator: mood changes; some walking for exercise; fatigue; brain fog; long-haul COVID
symptoms; lack of focus; stiffness; walks everyday but feels exhausted; grocery shopping
completely wears him out; and hypertension is worse in mornings.
{¶ 11} 6. Relator attempted to return to work in August 2021.
{¶ 12} 7. In an August 23, 2021, progress note, Dr. Mao indicated the following with
regard to relator: hypertension and blood pressure has been great; started back at work at
the beginning of August and has been working eight- to nine-hour shifts five days per week,
which he gets through okay but feels pretty exhausted at the end of the day; first day back
at job, he missed a passenger; not sure if he has improvement in fatigue/brain fog; work is
going okay; mood is better; sleep is poor; walking 11,000-15,000 steps per day; and some
pushups/weights daily.
{¶ 13} 8. In a September 27, 2021, progress note, Dr. Mao indicated the following
with regard to relator: his tests indicated anxiety/depression; he was threatened by
coworkers; he did not feel safe at work; gets exhausted easily; and working eight-hour days
was difficult.
{¶ 14} 9. In a November 29, 2021, progress note, Dr. Mao indicated the following
with regard to relator: still struggling with fatigue; got tired after five hours of work; wants
to be seen at the long-haul COVID clinic; and is working eight to nine hours per day.
No. 23AP-80 5

{¶ 15} 10. A December 13, 2021, a physical-therapy evaluation indicated the
following with regard to relator: extreme fatigue and brain fog; heart racing/pounding,
which is getting better; tried returning to work for 8-hour days for 1-1/2 months, but then
had to sleep for 14 hours when he returned from work; and he feels like he has about 2-4
hours per day to get everyday activities accomplished but then needs a 3-6-hour nap.
{¶ 16} 11. Relator initially saw Harrison L. Jackson, M.D., at the Ohio State
University (“OSU”) Post-COVID Recovery Clinic, beginning in December 2021. These
records indicated the following with regard to relator: meets criteria for post-acute COVID-
19 syndrome; fatigue, difficulty concentrating, myalgias, hypertension, and joint pain; post-
acute COVID syndrome can cause chronic fatigue, but there can be comorbid conditions
that coronavirus has made worse or triggered; and most suspicious about relator’s
untreated depression and obstructive sleep apnea.
{¶ 17} 12. Dr. Mao’s January 3, 2022, progress note indicates the following with
regard to relator: no change in level of fatigue; has a four-hour window in which he can do
things; does 10 pushups per day and has started home physical therapy; averages 1,700
steps per day; relator thought 10,000-15,000 steps per day that he took when he returned
to work were too many; sleeping better; mood is the same; and very agitated about work.
{¶ 18} 13. On February 2, 2022, relator filed a disability benefit application with
OPERS.
{¶ 19} 14. On February 16, 2022, Dr. Mao completed a report of physician form, in
which he indicated that relator was incapable of performing his job as a COTA bus operator
due to COVID long-haul, and he became permanently disabled on December 28, 2021. He
also listed other conditions as hypertension, GERD, depression, and PTSD. Dr. Mao stated
relator’s symptoms include fatigue, brain fog, and shortness of breath. His residual
symptoms may be permanent.
{¶ 20} 15. On May 26, 2022, Robert Ferguson, M.D., from Commonwealth
Medicine, issued a report, in which he found the following: (1) relator has significant
depression and obstructive sleep apnea, which are both commonly associated with
subjective complaints of fatigue and cognitive difficulties; (2) relator demonstrated normal
exercise capacity for his age; (3) Dr. Jackson’s December 2021 evaluation in the OSU Post-
COVID Recovery Clinic concluded that although his symptoms could be due to long-haul
No. 23AP-80 6

COVID, he was concerned about untreated depression and obstructive sleep apnea as the
cause; (4) COVID-19 infection is not the primary cause of relator’s current complaints of
shortness of breath, fatigue, or cognitive difficulties, and, therefore, he is not disabled on
the basis of long COVID syndrome; and (5) it is not likely that any of his symptoms that are
due to his prior COVID infection will significantly improve at this point.
{¶ 21} 16. On June 13, 2022, OPERS issued a letter denying relator’s application.
Relator appealed.
{¶ 22} 17. On June 24, 2022, relator requested that a copy of his claim file be sent to
his physician and attorney. On July 12, 2022, OPERS mailed the claim file to his attorney;
however, only the first 24 pages were full-page copies, while the remaining 232 pages were
magnified images of the top-left quadrant of the copied pages.
{¶ 23} 18. Relator requested another copy of his claim file, and OPERS mailed a
second copy, dated July 19, 2022. This version contained 144 pages, containing duplicate
records and missing several treatment notes that were relied upon by Dr. Ferguson.
{¶ 24} 19. Relator notified OPERS of the above issues with the claim file and
requested an extension of time. OPERS mailed a third copy of the claim file to relator’s
attorney, which was received by relator’s attorney on August 17, 2022. This third copy
suffered from the same defects as the second copy.
{¶ 25} 20. OPERS denied relator’s requests for extension of time so that it could
obtain an accurate copy of the claim file. On September 14, 2022, relator requested a fourth
copy of the claim file and an extension of time to submit arguments in support of his
disability application. OPERS denied the extension and sent a cover letter to relator
indicating a copy of the claim file was enclosed with it, but the file was not enclosed.
{¶ 26} 21. After OPERS filed its evidentiary record in the present mandamus action,
relator identified, in his April 21, 2023, motion to strike, the following pertinent records
that were not included in OPERS’s copies sent to him: (1) a February 21, 2022, letter from
OSUP General IM Peds Grandview to OPERS informing OPERS that it was unable to
comply with a request due to missing information in an authorization; (2) a blank OSU
Physicians, Inc., authorization to release medical information form; (3) A CIOX Health
cover letter to OPERS regarding confidential information; (4) a February 21, 2022, CIOX
Health document showing records from OSUP General IM Peds Grandview were shipped
No. 23AP-80 7

to OPERS; (5) a CIOX Health invoice for records from OSUP General IM Peds Grandview
to UMass Disability Community; (6) 129 pages of medical records from OSU Wexner
Medical Center; (7) a June 9, 2022, OPERS board recommendation by Commonwealth
Medicine that relator’s application be disapproved; (8) a June 12, 2022, OPERS board
recommendation by Maurice Mast, M.D., OPERS’s medical consultant, that relator’s
application be disapproved; (9) a June 13, 2022, denial letter from OPERS to COTA ; (10)
a June 17, 2022, letter to relator informing him that his disability benefits appeal request
form was not properly completed; (11) a four-page OPERS release of account information
authorization form; and (12) two cover letters to Dr. Shengyi and two cover letters to
relator’s attorney relating to requested information enclosures.
{¶ 27} 22. In support of his appeal, on September 19, 2022, relator submitted a
September 19, 2022, report of physician, including progress notes up to August 23, 2022,
completed by Dr. Mao; pulmonary rehabilitation progress notes dated April 14 through
August 25, 2022; and the mental health records from Mark A. Fletcher, M.D., Ph.D., dated
May 10 through August 18, 2022.
{¶ 28} 23. Dr. Ferguson recommended in an October 3, 2022, medical disability
recommendation that OPERS deny disability, finding the following with regard to relator:
(1) although relator complains of brain fog, the record does not suggest relator had any
difficulties with the cognitive parts of his job when he returned to work in August 2021; (2)
although relator complains of shortness breath, he was walking up to 15,000 steps per day
according to Dr. Mao’s August 23, 2021, note; (3) fatigue remains a major complaint; (4)
relator completed pulmonary rehabilitation and achieved 75 percent of his stated goals; (5)
relator’s oxygen saturation and good performance on his 6-minute walk test suggests his
exercise capacity is sufficient to perform the essential duties of his job as a bus operator; (6)
he has obstructive sleep apnea, depression, and PTSD as significant contributing causes for
his ongoing fatigue; (7) relator’s prior COVID infection is not the primary cause of his
ongoing symptoms; (8) he is not disabled on the basis of long-haul COVID syndrome; and
(9) the additional medical record information was reviewed and did not cause any change
of opinion.
{¶ 29} 24. On October 11, 2022, OPERS issued a letter denying relator’s appeal and
denying his request for disability benefits.
No. 23AP-80 8

{¶ 30} 25. On February 2, 2022, relator filed a petition for writ of mandamus.

Conclusions of Law and Discussion:
{¶ 31} The magistrate recommends that this court deny relator’s request for a writ
of mandamus.
{¶ 32} To prevail on his mandamus claim, relator must establish, by clear and
convincing evidence: (1) a clear legal right to the requested relief; (2) a clear legal duty on
the part of OPERS to provide that relief; and (3) the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Domhoff v. Ohio Pub. Emps. Retirement Sys. Bd.,
140 Ohio St.3d 284, 2014-Ohio-3688, ¶ 13. This requires that relator demonstrate that
OPERS abused its discretion by making a decision that was not supported by some
evidence. State ex rel. Willer v. Ohio Pub. Emps. Retirement Sys., 10th Dist. No. 20AP- 316,
2021-Ohio-4575, ¶ 12. An abuse of discretion occurs when a decision is unreasonable,
arbitrary, or unconscionable. State ex rel. Ewart v. State Teachers Ret. Sys. Bd. of Ohio,
10th Dist. No. 20AP-21, 2020-Ohio-4147, ¶ 24.
{¶ 33} In mandamus, courts will not second-guess the medical expertise of the
doctor whose report is under review. State ex rel. Smith v. Ohio Pub. Emps. Retirement
Sys., 10th Dist. No. 14AP-1060, 2016-Ohio-2731 (magistrate's decision), citing State ex rel.
Young v. Indus. Comm., 79 Ohio St.3d 484, 1997-Ohio-162 (1997). The evaluation of the
weight and credibility of the evidence before it rests exclusively with OPERS. Id., citing
State ex rel. Thomas v. Indus. Comm., 42 Ohio St.3d 31, 33 (1989), citing State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
{¶ 34} The retirement system board, not physicians, makes the ultimate decisions
regarding disability, and a physician’s opinion is not conclusive. See State ex rel. Sanderlin
v. State Teachers Retirement Sys., 10th Dist. No. 21AP-210, 2022-Ohio-2032 (regarding
State Teachers Retirement System of Ohio), citing State ex rel. Hulls v. State Teachers
Retirement Bd., 113 Ohio St.3d 438, 2007-Ohio-2337, ¶ 26. The retirement system board
is not required to accept the views of any particular doctor favored by the claimant, or give
greater weight to the claimant’s treating physicians. Id., citing State ex rel. Pipoly v. State
Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 24. Ultimately, the
existence of contrary evidence is immaterial if there is evidence in support of the retirement
No. 23AP-80 9

system board’s findings of fact. Sanderlin, citing State ex rel. Kolcinko v. Ohio Police & Fire
Pension Fund, 131 Ohio St.3d 111, 2012-Ohio-46, ¶ 9. Even in the case of an independent
examination at the retirement system board’s request, the board is permitted to accept the
findings presented in the medical reports yet still reject their ultimate conclusions. Id.,
quoting State ex rel. Joyce v. State Teachers Retirement Sys. of Ohio, 10th Dist. No. 20AP-
507, 2021-Ohio-4279 (magistrate’s decision), quoting State ex rel. Wegman v. Ohio Police
& Fire Pension Fund, 155 Ohio St.3d 223, 2018-Ohio-4243, ¶ 16.
{¶ 35} R.C. 145.27 and Ohio Adm.Code 145-1-61 address access to medical records
and individual case information. R.C. 145.27, entitled “Access to records; match with public
assistance recipients,” provides, generally, that copies of medical reports or
recommendations must be made available to the personal physician, attorney, or
authorized agent of the individual concerned upon written release from the individual or
the individual’s agent. R.C. 145.27(B). Ohio Adm.Code 145-1-61, entitled “Release of names,
addresses and individual case information and maintenance of records,” provides,
generally, that individual case information and medical reports and recommendations may
be released to a third party upon written authorization of the member or benefit recipient.
{¶ 36} The general procedure for disability benefits is set forth in the Ohio Revised
Code and Ohio Administrative Code. Ohio Adm.Code 145-2-22(H), entitled “Receipt of
disability benefits,” provides, in pertinent part, that information obtained regarding the
disabling condition becomes part of the disability record that is available for review by the
medical examiner and medical consultant. Pursuant to R.C. 145.35, in order for an OPERS
member to be granted disability benefits, OPERS’s examining physician must determine
the member is entitled to benefits, OPERS’s medical consultant must concur with the
examining physician’s determination, and the OPERS board must concur with the medical
consultant. Ohio Adm.Code 145-2-21(B)(1) requires the OPERS member to submit a
report of a physician and any supporting reports to determine his disabling condition. After
the medical records are submitted to the examining physician and the OPERS medical
consultant and a determination of disability is made, the member may appeal any denial of
benefits under Ohio Adm.Code 145-2-23 and must submit additional objective, current
medical evidence that has not been considered previously by OPERS.
No. 23AP-80 10

{¶ 37} In the present case, relator first argues that OPERS deprived him of due
process of law by failing to transfer to him evidence upon which it relied in denying his
disability application. In support, relator contends the following: a member of OPERS has
a protected property interest in his or her disability or retirement benefits and, thus, has
the right to procedural due process; procedural due process includes the medical advisors’
recommendations and board’s decisions being available to the member and an indication
of reliance of examination reports, citing State ex rel. Cydrus v. Ohio Pub. Emps.
Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770; a party is entitled to know the issues
on which the decision will turn and to be apprised of the factual material on which the
agency relies for decision so that the party may rebut it; relator was entitled to know what
evidence OPERS relied upon in determining whether he meets the criteria to be awarded a
disability benefit; R.C. 145.27(B) and Ohio Adm.Code 145-1-61 require the release of
individual case information with a written authorization; although the certified record
contains correspondence from OPERS to relator’s counsel dated June 28, 2022, neither
relator nor his counsel received a copy of his file or that cover letter; OPERS’s first July 12,
2022, transmission of the record contains 232 of 256 pages that were zoomed-in images of
one-quarter of the pages; OPERS’s second July 19, 2022, transmission of the record
contained duplicate medical records and was missing several treatment notes that were
relied upon by Dr. Ferguson; OPERS’s third August 17, 2022, transmission of the record
suffered from the same defects as the second transmission of the record; OPERS’s fourth
attempted transmission of the record was comprised of a cover letter with no attached
records; and, thus, at no point during the application and appeals process did relator ever
receive a copy of the evidence contained in the certified records before this court.
{¶ 38} Relator cites the Supreme Court of Ohio’s decision in Cydrus, to support his
due-process argument. The court in Cydrus addressed due process in the context of OPERS
proceedings. The court found: (1) OPERS does not have any duty based on procedural due
process to identify the evidence it relied upon and to explain its reasons for denying
disability-retirement benefits; and (2) the following factors established the requisite due
process: (a) after the retirement board initially decided to terminate the member’s
disability-retirement benefits, the board notified the member of its decision and the
availability of appeal; (b) the member was given the opportunity to submit to the board
No. 23AP-80 11

additional objective medical evidence in support of her appeal, and the member did so by
providing a doctor’s report; (c) after the retirement board denied the member’s appeal and
upheld its decision terminating her benefits, the member was able to challenge the decision
in mandamus; and (d) the medical advisors’ recommendations and the board’s decisions
were available to the member and indicated reliance on the examination reports by two
doctors. Relator in the present case contends that his due process was violated by OPERS’s
failure to comport with the due-process requirement described in (d).
{¶ 39} The magistrate finds Cydrus does not aid relator’s due-process claim. At the
outset, relator’s assertion that he was entitled to know what evidence OPERS relied upon
in determining his disability application is meritless. As explained in Cydrus, OPERS does
not have any duty to identify the evidence it relied upon and to explain its reasons for
denying disability benefits. Also consistent with Cydrus, OPERS notified relator of its
decision and the availability of appeal, and he was given the opportunity to submit to
OPERS additional objective medical evidence in support of his appeal, and he did so by
providing Dr. Mao’s progress notes, pulmonary rehabilitation progress notes, and mental
health records from Dr. Fletcher. Furthermore, after OPERS denied his appeal and upheld
its decision denying benefits, relator was able to challenge the decision in the present
mandamus case. Importantly, in his April 21, 2023, motion to strike, although relator
claimed that he did not receive the one-page recommendation forms from Drs. Ferguson
and Mast in the file copies OPERS delivered to him, he does not allege that he did not have
copies of Dr. Ferguson’s full recommendation or that he was unaware of the doctors’
recommendations. Relator’s sole claim on this issue is that the recommendation forms were
not included in the file copies sent to him from OPERS. It is clear from relator’s motion to
strike that he had possession of Dr. Ferguson’s full reports recommending that disability
be disapproved.
{¶ 40} In addition, the court in Cydrus did not make any finding that it is a violation
of due process for OPERS, during the pendency of proceedings, to fail to transfer to the
member the record of evidence upon which it relied in denying his disability application,
which is relator’s main argument herein. Indeed, relator fails to cite any authority to
support his argument, in this respect. On this issue, OPERS notes that the only substantive
medical evidence that relator claims was not included in any of the record copies that
No. 23AP-80 12

OPERS delivered to him is the OSU medical records, which were relator’s own medical
records. Given it is apparent that relator possessed or had access to the pertinent medical
records and Dr. Ferguson’s full recommendation report, he had a full and fair opportunity
to review the relevant evidence and challenge OPERS’s determinations in this matter.
Relator does not endeavor to explain how OPERS’s admitted failures to forward complete
and legible copies of the record hampered or prejudiced his ability to present arguments in
favor of his position. Therefore, the magistrate can find no due-process deprivation based
upon OPERS’s failure to provide a full copy of the record to relator.
{¶ 41} Relator next argues that OPERS abused its discretion when it issued an
unreasonable, arbitrary, and unconscionable decision finding that relator is capable of the
performance of his bus operator position. In support of this argument, relator asserts: the
medical evidence from Dr. Mao and the OSU Post-COVID Recovery Clinic supports the
conclusion that relator attempted to return to work for about 45 days, but he was exhausted
and fatigued by the end of the day, and COTA rejected his request to work only eight-hour
shifts with no overtime; he suffered from brain fog; he needed breaks to accomplish his
activities of daily living; he hit a fence while driving his personal vehicle in December 2020;
when he attempted to return to work in August 2021, he missed picking up a passenger; Dr.
Ferguson’s reports contain internal inconsistencies, in that Dr. Ferguson opined that
relator has no limitations, an unlimited ability to frequently lift or carry any amount of
weight throughout an eight-hour workday, and can sit, stand, walk, balance, climb, crawl,
and kneel without any limitations, yet he states in his recommendation that it is not likely
that any of his symptoms that are due to his prior COVID infection will show any further
improvement; and it is clear that Dr. Ferguson felt that relator was still struggling with
symptoms and limitations as a direct result of his long-haul COVID diagnosis, but he failed
to assign any limitations.
{¶ 42} Relator’s arguments are without merit. The gist of relator’s arguments is that
OPERS should have believed the medical evidence he presented over the evidence OPERS
relied upon. Relator asks this court to find Dr. Mao and the OSU Post-COVID Recovery
Clinic were more credible and persuasive than Drs. Ferguson and Mast. That is not the role
of this court in mandamus. Although relator’s medical evidence could support a disability
determination, if believed, OPERS instead found the recommendations of Drs. Ferguson
No. 23AP-80 13

and Mast more credible. To be sure, those recommendations, particularly Dr. Ferguson’s
full reports, support OPERS’s decision to deny relator disability benefits. Although the
medical evidence does support that relator suffered from brain fog and fatigue, Dr.
Ferguson believed that the record did not support that he had any difficulties with the
cognitive parts of his job when he returned to work in August 2021, he was walking up to
15,000 steps per day in August 2021, he completed pulmonary rehabilitation and achieved
75 percent of his stated goals, testing suggested that his exercise capacity is sufficient to
perform the essential duties of his job as a bus operator, and his primary cause of ongoing
fatigue was not COVID but several other health issues that contributed to his fatigue. Dr.
Ferguson’s opinions clearly could be relied upon by OPERS to support a denial of disability
benefits.
{¶ 43} Relator’s complaint that Dr. Ferguson’s reports contain internal
inconsistencies is unfounded. There is no inconsistency in Dr. Ferguson’s finding that
relator’s COVID symptoms may be permanent, yet he is not disabled by them. Merely
because relator may not see any further improvement in his COVID symptoms does not
mean he necessarily has work limitations. Relator may have some level of fatigue or brain
fog from COVID that may persist indefinitely, but that level may not be so severe as to
impact his lifting, carrying, sitting, standing, walking, balancing, climbing, crawling, and
kneeling. Importantly, Dr. Ferguson believed relator’s other health issues were contributing
causes to his fatigue. Therefore, the magistrate finds no inconsistency in Dr. Ferguson’s
findings.
{¶ 44} Accordingly, it is the magistrate’s recommendation that this court should
deny relator’s request for a writ of mandamus.

/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 23AP-80 14

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10802032. Public record. Not legal advice.