[Cite as DeMatteo v. State Teachers Retirement Sys., 2018-Ohio-3635.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Teri F. DeMatteo, : 

 Relator, : 

v. : No. 17AP-678 

State Teachers Retirement System and : (REGULAR CALENDAR) 

State Teachers Retirement System Ohio 

Retirement Board, : 

 Respondents. : 

 

D E C I S I O N 

Rendered on September 11, 2018 

 

On brief: Law Offices of Gary A. Reeve, and Gary A. Reeve, 

for relator. 

On brief: Michael DeWine, Attorney General, John J. 

Danish, and Mary Therese J. Bridge, for respondents. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, P.J. 

{¶ 1} Relator, Teri F. DeMatteo, has filed an original action requesting this court 

issue a writ of mandamus ordering respondent, the Board of the State Teachers 

Retirement System, to either vacate its denial of relator's appeal and process that appeal 

in a normal fashion, or to vacate respondent's denial of relator's disability benefits 

application and grant such benefits retroactive to the date on which she first filed for 

benefits. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, the matter was referred to a magistrate of this court. The magistrate issued the 
 2 

appended decision, including findings of fact and conclusions of law, recommending this 

court issue a writ of mandamus ordering respondent to accept relator's appeal and give 

her the opportunity to present medical evidence which is contrary to the report of the 

independent medical examiner. 

{¶ 3} Respondent has filed two objections to the magistrate's report. Specifically, 

respondent asserts that: (1) its denial of relator's disability benefits appeal as untimely did 

not constitute an abuse of discretion, and (2) there was some evidence to support its 

denial of relator's disability benefits application. 

{¶ 4} With respect to the first objection, respondent's arguments regarding 

whether it appropriately denied relator's appeal were adequately addressed by the 

magistrate. For the reasons stated in the decision of the magistrate, we overrule 

respondent's objection to the magistrate's conclusion that respondent abused its 

discretion when it determined relator's notice of appeal was untimely. 

{¶ 5} Respondent's second objection to the magistrate's decision involves the 

merit issue, i.e., whether there was some evidence to support respondent's denial of the 

application for disability benefits. However, in light of our determination that the 

magistrate properly concluded respondent abused its discretion in denying relator's 

administrative appeal as untimely, we further agree with the magistrate's 

recommendation that this matter be remanded to respondent to afford relator the 

opportunity to present, in accordance with Ohio Adm.Code 3307:1-7-05(2)(a), "additional 

medical evidence contrary to the findings of the independent medical examiners." 

{¶ 6} Following an examination of the magistrate's decision, as well as an 

independent review of the record, we overrule respondent's objections to the magistrate's 

decision. Accordingly, we adopt the magistrate's decision as our own, including the 

findings of fact and conclusions of law contained therein. In accordance with the 

magistrate's recommendation, we grant a writ of mandamus ordering respondent to 

accept relator's appeal and to provide her the opportunity to present additional medical 

evidence regarding the issue of whether she is entitled to disability benefits. 

Objections overruled; writ of mandamus granted. 

KLATT and SADLER, JJ., concur. 
 3 

_______________APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Teri F. DeMatteo, : 

 Relator, : 

v. : No. 17AP-678 

State Teachers Retirement System and : (REGULAR CALENDAR) 

State Teachers Retirement System Ohio 

Retirement Board, : 

 Respondents. : 

 

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

Rendered on April 27, 2018 

 

Law Offices of Gary A. Reeve, and Gary A. Reeve, for relator. 

Michael DeWine, Attorney General, John J. Danish, and

Mary Therese J. Bridge, for respondents. 

 

IN MANDAMUS 

{¶ 7} Relator, Teri F. DeMatteo, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent, the board of the State Teachers 

Retirement System ("STRS" or "board"), to either vacate its denial of relator's appeal, 

process that appeal in a normal fashion, or vacate the denial of relator's disability benefits 

and grant those disability benefits retroactive to the date on which she first filed. 

Findings of Fact: 

{¶ 8} 1. Relator worked at Columbus State Community College ("CSCC") on a 

part-time basis as an adjunct instructor in the American Sign Language interpreting 
 4 

major. (Information concerning her schedule and/or number of courses taught was not 

found in the stipulation of evidence.) 

{¶ 9} 2. On May 4, 2017, relator filed her application for disability benefits with 

STRS. Relator indicated the last day she worked as an adjunct professor at CSCC was 

December 19, 2015. Relator listed the following conditions which, in her opinion, were 

causing her disability: rheumatoid arthritis and fibromyalgia. In the section where she 

was asked to describe specific job duties she was unable to perform due to the disabling 

conditions, relator stated: 

As an instructor in the IEP, using sign language is a 

requirement. Joint swelling and pain caused by the 

rheumatoid arthritis prohibited my physical ability to do so. 

Additionally, chronic fatigue, a symptom of both diseases, 

factored in. Brain fog, a symptom of the fibromyalgia and a 

side effect of the rheumatoid arthritis medication impaired 

my ability to think and process clearly. Driving from 

Johnstown to CSCC was physically challenging and 

exhausting. I was worn out before class even started. Despite 

having lesson plans prepared, it was difficult to stay focused 

and maintain continuity of presenting the material. It was 

frustrating to not be able to freely use sign language as a 

modeling tool for the students. 

{¶ 10} 3. In support of her application, relator submitted the April 24, 2017 report 

of her treating physician, Matthew Mundwiler, M.D., who indicated the primary medical 

conditions for which he was providing treatment to relator was the rheumatoid arthritis, 

and the date of onset was December 2015. Dr. Mundwiler indicated, in his opinion, 

relator's rheumatoid arthritis was disabling, was expected to last at least 12 or more 

months, and the date the condition first presented relator from completing her job duties 

was February 1, 2016. Dr. Mundwiler indicated the fibromyalgia was not, in his opinion, 

disabling. Dr. Mundwiler noted the following disabling symptoms: pain, fatigue, and 

shortness of breath, and noted the following physical exam findings: synovitis bilateral 

hands, slow healing wounds. 

{¶ 11} 4. STRS's Medical Review Board authorized Ronald L. Whisler, M.D., to 

examine relator. In his June 22, 2017 report, Dr. Whisler noted relator's chief complaints 

were joint, hand, and back pain. Dr. Whisler provided the following explanation of 

relator's symptoms: 
 5 

This member teaches sign language at CSU as an adjunct 

instructor in sign language interpreting major. She states that 

December 2015 she suddenly developed marked swelling and 

stiffness with arthralgias of the hands and wrist – left first 

then right. The symptoms resulted in loss of mobility and 

inability to function at her job and her last day of instruction 

was December 19, 2015. 

Her other musculoskeletal symptoms consist of back pain 

with scoliosis neck pain, left hip pain and bilateral knee pain. 

She states that she has been afflicted with fibromyalgia since 

1992 with associated body pain-fatigue-stiffness-light 

sensitivity-panic attacks-ringing in the ears-flu like 

symptoms- and brain fog. She takes lyrica and Effexor for the 

fibro. 

Her symptoms are every day and all day. Her pain is 

aggravated by standing too long in one position but also 

aggravated by activity. Pain is relieved by heat-rest stretching, 

massage and by Biofreeze. She notes swelling in her fingers 

and her morning stiffness is all day stiffness. Symptoms worst 

am and evening. 

When her hands suddenly swelled, her nurse practice 

specialist ordered blood tests and discovered that the tests for 

rheumatoid arthritis were positive. She was referred to Dr. 

Mundwiler a rheumatologist who prescribed 10 mg weekly 

methotrexate. She continued to have the pain and stiffness 

with swelling. The dose of methotrexate was increased to 20 

mg weekly that was intolerable because of nausea and hair 

loss. She was then prescribed Arava which also induced 

intolerable nausea and the hair loss continued. She has been 

seeing her rheumatologist about every 4-6 weeks and does get 

IM injections of Kenalog which helps her symptoms for about 

1 week. 

A few months ago, she started Enbrel 50 mg weekly and 

tolerated Enbrel well with some lessening of her joint 

symptoms. However, March of this year she was hospitalized 

at Saint Anns with pneumonia. She recovered from the 

pneumonia and for the past three weeks has restarted weekly 

Enbrel injections. She does note injections site redness and 

irritation with the auto-injector device. 

(Sic passim.) 
 6 

 Under his physical findings on examination, Dr. Whisler noted: 

Musculoskeletal: all joints examined, no swelling, no 

tenderness, no pain, no limitation of motion and no enthesitis. 

Except for maybe minimal synovial thickening along the ulnar 

styloid, I cannot find any synovitis. Hands do reveal some 

early Heberdens of her DIPs. She does have kyphoscoliosis 

and tenderness trochanteric bursa left hip. Good ROM joints 

– muscle strength and DTRs normal. Gait normal. She has 

good dexterity of the hands and fingers bilateral-good 

strength-mobility. Very good ROM of the wrists and the 

normal hand writing sample enclosed as example of current 

dexterity and fine motor. 

{¶ 12} Dr. Whisler obtained x-rays of relator's hands which showed "minimal 

changes that could indicate rheumatoid with no erosions of joint space narrowing except 

for the changes of the DIPs with osteoarthritis. The DIP changes are of no functional 

consequence." Ultimately, Dr. Whisler opined relator was not permanently and totally 

disabled from rheumatoid arthritis, and she had not yet achieved maximum medical 

benefits because, in his opinion, additional treatments could be attempted. 

{¶ 13} 5. Three members of the Medical Review Board examined the medical 

evidence and submitted their initial recommendations. In his June 29, 2017 report, 

Edwin H. Season, M.D., recommended disability benefits be denied, stating: 

Dr. Whisler performed a rheumatology examination and 

concluded that [relator] had rheumatoid arthritis with 

positive rheumatoid factor (involving hands and wrists) and 

fibromyalgia. Dr. Whisler felt [relator] was not permanently 

disabled. Dr. Whisler felt she was capable of full work 

teaching activities. 

Based on the records of Dr. Mundwiler and the IME report of 

Dr. Whisler, I recommend disability benefits be denied. 

{¶ 14} 6. In his June 30, 2017 report, Marc Cooperman, M.D., recommended that 

disability benefits be denied, stating: 

An independent medical examination was performed on 

June 22, 2017, by Dr. Ronald Whisler, a specialist in 

Rheumatology. Muscle strength was normal, without 

tenderness or atrophy. Examination of her joints showed no 

swelling, tenderness, pain, limitation of motion or enthesitis. 
 7 

There was no evidence of synovitis, with the possible 

exception of minimal synovial thickening along the ulnar 

styloid. Joint range of motion was normal. There was good 

dexterity of her hands and fingers bilaterally. Handwriting 

was normal. Wrist range of motion was good. Dr. Whisler 

obtained hand x-rays, which showed minimal changes "of no 

functional consequence." It was Dr. Whisler's opinion that 

[relator] is not disabled. 

It is my opinion that [relator] is not disabled. Despite her 

subjective complaints, there are no objective findings, either 

on physical examination or x-rays, that would prevent her 

from performing her job-related duties, including using her 

hands for signing. Her synovitis is minimal, and she is 

receiving appropriate treatment. 

{¶ 15} 7. In his July 2, 2017 report, James N. Allen, M.D., recommended relator's 

disability retirement be approved and she be re-examined in one year, stating: 

In summary, this STRS member has pre-existing fibromyalgia 

that is not disabling. She now has well-substantiated 

rheumatoid arthritis. Although her hand function was good 

when examined by an independent medical examiner, 

rheumatoid arthritis can affect joints more during certain 

times of the day, for example, mornings. Additionally, there 

was soft tissue swelling noted on hand x-rays that would 

suggest that there may still be some degree of active 

inflammatory arthritis. The degree of arthritis is relatively 

mild and would not be disabling for most teaching 

occupations but even a small degree of hand and finger joint 

arthritis could be disabling for a sign language teacher. 

Because of the findings on hand x-rays, I am inclined to 

recommend approval of disability retirement. However, 

because Dr. Whisler has noted that there are treatment 

options that may further improve her hand arthritis, I 

recommend re-examination in 1 year since better control of 

her rheumatoid arthritis will likely allow her to return to work 

in the future. 

{¶ 16} 8. On July 17, 2017, the Medical Review Board met in special conference to 

discuss relator's application and recommended disability benefits be denied. Dr. 

Cooperman noted: 

Based on the essentially normal findings by Dr. Whisler, a 

specialist in Rheumatology, it was the unanimous opinion of 
 8 

the Medical Review Board, with which I concur, that [relator] 

is not disabled. [Relator's] need to use her hands for signing 

was taken into consideration. However, there were not 

objective findings either on her examination or her x-rays that 

would prevent her from continuing to function as an Adjunct 

Instructor. 

 Dr. Allen explained his decision to deny disability, stating: 

Today, the STRS Medical Review Board met to discuss 

disability materials regarding [relator]. Previously, I had 

expressed concern that her hand x-rays showed signs of soft 

tissue swelling. However, it was noted in discussion that xrays can show soft tissue swelling without active synovitis. It 

was further discussed that Dr. Whisler provided strong 

evidence from his physical exam and from [relator's] 

handwriting sample that her finger joints are not currently 

involved by her rheumatoid arthritis to the point that would 

result in disability. The Board voted unanimously to deny 

disability. 

{¶ 17} 9. In a letter dated August 18, 2017, relator was informed the board took 

official action and denied her application for disability benefits. The letter also explained 

relator's right to appeal: 

Medical evaluation and Board action was conducted in 

accordance with section 3307.62 of the Revised Code. You 

have the right to appeal the Retirement Board action under 

Section 3307.62 of the Revised Code and Rule 3307:1-7-05 of 

the Administrative Code, provided written notice of appeal is 

received by STRS Ohio by the close of business, within 15 

calendar days from your receipt of this letter. The request 

must be accompanied by a statement from you, your counsel 

or attending physician that an appeal will be based on 

additional medical evidence contrary to the findings of the 

Medical Review Board. Additional information regarding the 

procedures and deadlines for an appeal will be mailed to you 

if your appeal option is exercised. 

STRS Ohio strictly enforces all deadlines associated 

with appeals. The 15-day deadline for STRS Ohio's 

receipt of your written request for appeal as stated 

above is firm. STRS Ohio will not accept postmark 

dates or any other delay beyond the stated deadline.

(Italics added; bold sic.) 
 9 

{¶ 18} 10. In a letter dated August 31, 2017 and mailed to STRS at 275 East Broad 

Street, Columbus, Ohio 43215-3771, relator exercised her right to appeal the denial of her 

disability benefits and indicated she would present additional medical evidence in 

support. 

{¶ 19} 11. According to the date stamp on that letter, STRS received it 

September 6, 2017. 

{¶ 20} 12. In a letter also dated September 6, 2017, relator was notified her request 

for appeal was being denied as untimely. Specifically, that letter provided: 

STRS Ohio strictly enforces all deadlines associated with 

appeals as you were informed. We provided notice to you on 

August 18, 2017, of the Retirement Board's action to deny 

your disability benefits. Priority Mail tracking shows that you 

received this notice on August 21, 2017. Your right to appeal

the STRS Ohio Retirement Board action to deny your 

disability benefits required a written appeal request to be 

received by STRS Ohio by the close of business on September 

5, 2017. A request to appeal was received from you at the 

STRS Ohio building on September 6, 2017. 

Since the appeal request was not received by the close of 

business on September 5, 2017, STRS Ohio cannot grant the 

request for an appeal. 

(Emphasis added.) 

{¶ 21} 13. Thereafter, relator filed the instant mandamus action in this court 

asserting, in part, that STRS's method of picking up its mail caused her timely notice to be 

late. 

{¶ 22} 14. As part of its response to this mandamus action, STRS acknowledged 

"mail is picked up twice a day between 6:00 and 6:30 a.m. and again between 9:00 and 

9:30 a.m." 

{¶ 23} 15. Following oral argument, the matter is currently before the magistrate. 

Conclusions of Law: 

{¶ 24} For the reasons that follow, it is this magistrate's decision this court should 

issue a writ of mandamus ordering respondent to accept relator's filing of her notice of 

appeal timely and to conduct further proceedings in accordance with law. 
 10 

{¶ 25} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 26} Mandamus is the appropriate remedy where there is no statutory right of 

appeal from a decision of a public retirement system. State ex rel. Pipoly v. State 

Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219; State ex rel. Mallory v. 

Pub. Emp. Retirement Bd., 82 Ohio St.3d 235 (1998); State ex rel. Van Dyke v. Pub. Emp. 

Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123; State ex rel. Schaengold v. Pub. 

Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760. As such, the determination 

by STRS and its retirement board of whether a person is entitled to disability retirement 

benefits is reviewable in mandamus because R.C. 3307.62 does not provide for an appeal 

from the administrative determination. Id. Determination of whether a member of STRS 

is entitled to disability retirement is fully within the discretion of the board. See R.C. 

3307.62(F); Fair v. School Emps. Retirement Sys., 53 Ohio St.2d 118 (1978). 

{¶ 27} R.C. 3307.62 pertains to disability coverage and provides in pertinent part: 

(A) The state teachers retirement system shall provide 

disability coverage to each member participating in the STRS 

defined benefit plan who * * *: 

(1) * * * has at least five years of qualifying service credit; 

* * * 

(B) Application for a disability benefit may be made by a 

member * * *. 

The application for a disability benefit shall be made on a 

form approved by the board. * * * 

* * * 

(C) Medical examination of the member shall be conducted 

by a competent, disinterested physician or physicians selected 

by the board to determine whether the member is mentally or 

physically incapacitated for the performance of duty by a 

disabling condition, either permanent or presumed to be 
 11 

permanent for twelve continuous months following the filing 

of an application. * * * 

(D) Application for a disability benefit must be made within a 

two-year period from the date the member's contributing 

service terminated * * *. 

(E) If the physician or physicians determine that the member 

qualifies for a disability benefit, the board concurs with the 

determination, and the member agrees to medical treatment 

as specified in division (G) of this section, the member shall 

receive a disability benefit under section 3307.63 or 3307.631 

of the Revised Code. If such physician or physicians 

determine that the member does not qualify for a disability 

benefit, the report of the examiner or examiners shall be 

evaluated by a board of medical review composed of at least 

three physicians appointed by the retirement board. 

(F) The state teachers retirement board shall render an order 

determining whether or not the applicant shall be granted a 

disability benefit. Notification to the applicant shall be issued, 

and upon the request of an applicant who is denied a 

disability benefit, a hearing or appeal relative to such order 

shall be conducted in accordance with procedures established 

by the retirement board. 

(G) The state teachers retirement board shall adopt rules 

requiring each disability benefit recipient, as a condition of 

continuing to receive a disability benefit, to agree in writing to 

obtain any medical treatment recommended by the board's 

physician and submit medical reports regarding the 

treatment. * * * 

{¶ 28} Supplementing R.C. 3307.62 is Ohio Adm.Code 3307:1-7-05, which 

provides in pertinent part: 

The following procedures are hereby established for the 

appeal of any denial or termination of disability benefits by 

the retirement board following an independent medical 

examination by the state teachers retirement system. 

(A) At least seven days before a recommendation is presented 

to the retirement board, written notification shall be issued to 

the applicant or recipient. This notice shall include the 

recommendation to be presented to the board. 

* * * 
 12 

(B) Following board action terminating or denying disability 

benefits: 

(1) The applicant or recipient will be informed in writing of 

the action taken by the board. Notification shall include: 

(a) A statement that medical evaluation and board action was 

conducted in accordance with section 3307.48 or 3307.62 of 

the Revised Code. 

(b) Confirmation that the applicant or recipient has the right 

to appeal the board action. 

(c) A statement explaining that written notice of appeal must 

be filed with the retirement system no later than fifteen 

calendar days from receipt of notification of denial or 

termination. 

(d) An explanation of future rights and limitations upon the 

rights to again apply for disability benefits if an appeal is not 

pursued. 

(2) Procedure for exercising right to appeal: 

(a) Written notice of appeal, accompanied by a statement 

from the applicant or recipient, his or her counsel and/or 

attending physician that an appeal will be based on contrary 

to the findings of the independent medical examiners, must 

be filed with the retirement system within fifteen calendar 

days of receipt of notification of board action. 

{¶ 29} R.C. 3307.62 and Ohio Adm.Code 3307:1-7-05 require that an applicant for 

disability benefits has 15 days from the date they received notice their disability has been 

denied to appeal. In the present case, relator had until September 5, 2017, and 

respondent asserts it did not receive relator's notice of appeal dated August 31, 2017 until 

September 6, 2017, one day late. Ohio Adm.Code 3307:1-7-05(B)(1)(c) specifically 

requires the board to notify the member denied disability that "written notice of appeal 

must be filed with the retirement system no later than fifteen calendar days from receipt 

of notification of denial." 

{¶ 30} As noted in the findings of fact, respondent's August 18, 2017 letter to 

relator informing her that her application for disability benefits had been denied informed 

her that she had the right to appeal "provided written notice of appeal is received by the 
 13 

STRS Ohio by the close of business, within 15 calendar days from your receipt of this 

letter." Further, that letter provides the following address to which an appeal would be 

mailed: 275 East Broad Street, Columbus, Ohio 43215-3771. When relator mailed her 

notice of appeal, she mailed it to that same address. Nowhere in the notice was relator 

informed that her notice of appeal had to be "filed" within 15 days. 

{¶ 31} As indicated previously, respondent acknowledges it picks up mail two 

times each day: first, between 6:00 a.m. and 6:30 a.m., and second, between 9:00 a.m. 

and 9:30 a.m. Given this fact, respondent is acknowledging mail is delivered to its 

building between 6:30 a.m. and 9:00 a.m. on the same day. Further, respondent is also 

acknowledging mail is delivered to its building after 9:30 a.m. and prior to 6:00 a.m. on 

the following day. This is the only logical conclusion to be reached. It does not appear 

respondent makes any effort to pick up mail at a time which is near to the "close of 

business." Further, respondent has never indicated whether or not relator's notice of 

appeal was picked up on September 6 at 6:30 a.m. (meaning it was delivered to the 

building after 9:30 a.m. on September 5 and before 6:00 a.m. on September 6), just that 

respondent stamped it as being received on September 6, 2017. 

{¶ 32} Respondent's notice to relator and to other applicants is deficient because it 

does not inform applicants that their notice of appeal must be filed—the notice only 

informs applicants that their notice of appeal must be received. Furthermore, the notice 

tells applicants their notice of appeal must be received by the close of business on the 15th 

day. The magistrate finds that in failing to follow Ohio Adm.Code 3307:1-7-05(B)(1)(c) 

and misinforming applicants of the requirements to file appeals, respondent has created a 

clear legal right to applicants and has imposed a clear legal duty on itself to actually 

process the mail that arrives at its building address at the close of business. Respondent 

clearly fails to do so here. 

{¶ 33} In Brass Pole v. Ohio Dept. of Health, 10th Dist. No. 08AP-1110, 2009-

Ohio-5021, this court stated: 

Where a statute confers the right of appeal, an appeal may be 

perfected only in the manner prescribed by statute. Camper 

Care, Inc. v. Forest River, Inc., 10th Dist. No. 08AP-146, 

2008-Ohio-3300 (citations omitted). Ohio courts have 

consistently held that "a party adversely affected by an agency 

decision must * * * strictly comply with R.C. 119.12 in order to 
 14 

perfect an appeal." Hughes [v. Ohio Dept. of Commerce, 114 

Ohio St.3d 47, 2007-Ohio-2877], at ¶ 17. And, as stated 

above, Ohio courts, including this one, have held that the 

failure to file a notice of appeal with the appropriate agency 

within the 15-day limit provided for in R.C. 119.12 is a 

jurisdictional defect. Frasca [v. State bd. of Chiropractic 

Examiners (July 30, 1998), 10th Dist. No. 97APE10-1387]; 

Harrison [v. Ohio State Med. Bd. (1995), 103 Ohio App.3d 

317]. 

Depositing the notice of appeal in the mail does not constitute 

a filing under R.C. 119.12. To be timely filed, a notice a notice 

of appeal must be received within the time period set forth in 

R.C. 119.12. Watts v. Ohio Dept. of Ins., 8th Dist. No. 87849, 

2007-Ohio-81; Leonard v. Ohio Bd. of Nursing (June 8, 

2000), 10th Dist. No. 99AP-1154, 2000 Ohio App. LEXIS 

2407; Frasca; Burton v. Dept. of Agriculture (Feb. 9, 1993), 

10th Dist. No. 92AP-1499, 1993 Ohio App. LEXIS 782. 

{¶ 34} Respondent contends the factual situation presented here is similar to the 

factual situation presented in Wiltz v. Accountancy Bd. of Ohio, 10th Dist. No. 16AP-169, 

2016-Ohio-8345. In that case, Cassandra Wiltz appealed a decision from the Court of 

Claims of Ohio. As part of her case, Wiltz argued she mailed her objections to the Court of 

Claims by overnight express mail, and the mail was received and available for pick-up on 

the day it was due to be filed. Id. at ¶ 21. Wiltz asserted she had a USPS tracking receipt 

indicating her objections were received and available for pick-up at the Court of Claims' 

post office on January 6, 2016. Id. The Court of Claims rejected Wiltz's evidence noting it 

was her duty, and not the duty of the court, to ensure her objections were timely filed with 

the court within 14 days pursuant to Civ.R. 53(B)(3)(b)(i). On appeal, this court held the 

Court of Claims did not abuse its discretion when it determined that Wiltz's filing was 

untimely. Respondent asserts, in the present case, it was relator's duty to ensure that her 

noticed arrived at STRS in time. 

{¶ 35} The magistrate finds the facts presented in this case differ significantly from 

the facts in the Wiltz case. First and foremost, Civ.R. 53(B)(3)(b)(i) provides written 

objections to a magistrate's decision must be filed within 14 days of the filing of the 

decision. By comparison, while Ohio Adm.Code 3307:1-7-05(B)(2)(a) does indicate that a 

notice of appeal accompanied by a statement that the appeal will be based on evidence 

contrary to the findings of the independent medical examiners must be filed with the 
 15 

retirement system within 15 calendar days of receipt of notification of the board's action, 

the letter which respondent sent to relator does not discuss the filing of the appeal. 

Instead, the letter STRS sent relator notifying her she had a right to appeal the denial 

specifically provides she has until the close of business within 15 days from her receipt of 

the letter. Nothing in the notice informs relator that she must file a notice of appeal, only 

that said notice must be received by STRS by the close of business. Respondent cannot 

provide applicants with information regarding their appeal which appears to be false, 

granting the applicants more than the Ohio Administrative Code provides and then not 

expect applicants will actually rely on that information. 

{¶ 36} Second, in Wiltz, the objections were sent to a post office box. Here, 

relator's notice of appeal was sent to the office building where respondent has its offices as 

instructed. Third, in the letter denying relator the opportunity to appeal, STRS stated that 

her request was being denied because it "was not received by the close of business on 

September 5, 2017." Respondent acknowledges it does not check its mail at the close of 

business; instead, if mail is not received by 9:30 in the morning on the day it is due to be 

received, the mail, including relator's appeal herein, is considered to be late. The 

magistrate finds to do so results in a patently unfair result, which relator and other 

applicants who have found or may find themselves in the same situation do not deserve. 

People work and contribute money to their retirement systems expecting that retirement 

or disability benefits will be available when they need it. Here, relator did not miss out on 

her opportunity to appeal the denial of her disability benefits because of a technicality; 

instead, she missed out on her opportunity to file an appeal because respondent does not 

pick up its mail anywhere near the close of business despite the fact it tells applicants the 

close of business is the benchmark, the last moment their appeal must be received, and 

ignores that portion of the Ohio Administrative Code requiring people be informed an 

appeal must be filed. 

{¶ 37} Relator also argues this court should simply grant a writ of mandamus 

ordering respondent to grant her disability application on grounds the medical evidence 

supports such a finding. However, the magistrate finds this court is not in a position to 

consider the medical evidence presented and determine whether or not relator's disability 

application should have been granted. 
 16 

{¶ 38} Based on the foregoing, it is this magistrate's decision that respondent did 

abuse its discretion when it determined relator's notice of appeal was untimely, and this 

court should issue a writ of mandamus ordering respondent to accept relator's appeal and 

give her the opportunity to present medical evidence which is contrary to the report of the 

independent medical examiner, and, thereafter, respondent should make a determination 

as to whether or not relator is entitled to disability benefits. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).