Login | March 26, 2025
Appellate panel rejects bus driver’s plea to have disability claims order vacated
KEITH ARNOLD
Special to the Legal News
Published: March 10, 2025
A Franklin County appellate panel denied the action of a COTA bus driver diagnosed with long COVID who sought to compel the state public employees’ retirement system to vacate an order denying him disability benefits.
The three-judge panel of the Tenth District Court of Appeals adopted a magistrate’s findings that Bret Lewis’ arguments were without merit.
“The gist of relator’s arguments is that Ohio Public Employees Retirement System (OPERS) should have believed the medical evidence he presented over the evidence OPERS relied upon,” Tenth District Magistrate Thomas Scholl III wrote for the court.
According to case summary, Lewis contracted COVID-19 in August 2020 while employed by Central Ohio Transit Authority.
On April 6, 2021, Lewis’ doctor, Dr. Shengyi Mao, reported that the patient, who had not worked since diagnosis of the virus, exhibited symptoms of long COVID in addition to other conditions, such as fatigue, brain fog and lack of focus.
Lewis returned to work in August 2021, for 45 days, the summary noted.
In November 2021, Lewis sought referral to the Ohio State University Post-COVID Recovery Clinic, which resulted in a determination that Lewis met the criteria for post-acute COVID-19 syndrome, which may cause chronic fatigue and a worsening effect on comorbidities.
The clinic noted that it was “most suspicious” about Lewis’ untreated depression and obstructive sleep apnea, according to the summary.
Mao declared Lewis incapable of performing his job as a bus driver due to the diagnosis in a report Feb. 16, 2022. The physician noted that Lewis had become permanently disabled Dec. 28, 2021.
On May 26, 2022, Dr. Robert Ferguson from Commonwealth Medicine issued a report, in which he found that Lewis has significant depression and obstructive sleep apnea, which are both commonly associated with subjective complaints of fatigue and cognitive difficulties and that the COVID-19 infection is not the primary cause of relator’s current complaints of shortness of breath, fatigue or cognitive difficulties.
Ferguson concluded in the report that Lewis was not disabled on the basis of long COVID syndrome and it was unlikely that any of his symptoms due to his prior COVID infection would significantly improve.
OPERS subsequently denied Lewis’ application for permanent disability benefits.
Lewis unsuccessfully appealed the decision, and the retirement system denied his application for benefits a final time Oct. 11, 2022.
“Relator asks this court to find Dr. Mao and the OSU Post-COVID Recovery Clinic were more credible and persuasive than Dr. Ferguson,” Scholl wrote. “That is not the role of this court in mandamus.”
He added that OPERS found Ferguson’s recommendations more credible.
“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,” he wrote. “Dr. Ferguson’s opinions clearly could be relied upon by OPERS to support a denial of disability benefits.”
The appellate panel was composed of Tenth District judges Kristin Boggs, Laurel Beatty Blunt and Michael Mentel.
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