State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys. , 2021 Ohio 920 ( 2021 )

[Cite as State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys., 2021-Ohio-920.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael Ray Powell, Jr., :
Relator, :
v. : No. 19AP-600
Ohio Public Employees Retirement System, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on March 23, 2021
On brief: Law Offices of Gary A. Reeve, and Gary A. Reeve,
for relator.
On brief: Dave Yost, Attorney General, Samuel A. Peppers,
III, and Mary Therese J. Bridge, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Michael Ray Powell, Jr., brings this original action seeking a writ of
mandamus ordering respondent, Ohio Public Employees Retirement System ("OPERS"),
to vacate its order denying relator's application for disability benefits, and grant such
benefits retroactive to the date of application. Relator also requests that OPERS pay
relator's reasonable attorney fees and costs incurred in pursuing this mandamus action.
{¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate considered the action
on its merits and issued a decision that includes findings of fact and conclusions of law,
which is appended to this decision. The magistrate determined that OPERS did not abuse
No. 19AP-600 2
its discretion in denying relator's application for disability benefits and has recommended
that this court deny the request for a writ of mandamus.
{¶ 3} Relator has timely filed objections to the magistrate's decision. Specifically,
relator contends that (1) the magistrate "failed to address relator's argument that the Ohio
Supreme Court's 'any evidence' standard must be interpreted as encompassing only
evidence that passes the normal standards for reliability and trustworthiness"; and (2) the
magistrate "failed to address that OPERS did not carry out its fiduciary duty to Powell when
it ignored the unreliability and lack of trustworthiness of the Independent Medical
Examination ("IME") reports of its appointed physicians." (Oct. 8, 2020 Objs. at 1.)
{¶ 4} Because relator has filed objections, we must independently review the
record and the magistrate's decision "to ascertain that the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
{¶ 5} "Mandamus is the appropriate remedy where no statutory right of appeal is
available to correct an abuse of discretion by an administrative body." State ex rel. Hudson
v. Ohio Pub. Emp. Retirement Sys., 10th Dist. No. 10AP-904, 2011-Ohio-5362, ¶ 64. See
also State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-
2219. Because there is no statutory appeal from the board's determination that relator is
not entitled to disability benefits, mandamus is an appropriate remedy. State ex rel.
Cydrus v. Ohio Pub. Emps. Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12,
citing State ex rel. Pipoly at ¶ 14. See also Hudson at ¶ 64.
{¶ 6} A relator seeking a writ of mandamus must establish: "[1] a clear legal right
to the relief requested, [2] that PERS has a clear legal duty to provide the requested relief,
and [3] that relator has no plain and adequate remedy in the ordinary course of the law."
Hudson at ¶ 65. Further, "[t]o be entitled to the requested writ of mandamus, relator must
establish that the board abused its discretion by denying [his] request for disability
benefits." Id. See also State ex rel. Mallory v. Pub. Emp. Retirement Bd., 82 Ohio St.3d
235, (1998). An abuse of discretion connotes a board decision that is unreasonable,
arbitrary, or unconscionable. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 220 (1983).
However, "[w]hen there is some evidence to support the board's decision, an abuse of
discretion has not been shown." Hudson at ¶ 65. Thus, as long as some evidence supports
the decision of the board, this court will not disturb it. See State ex rel. Marchiano v. School
No. 19AP-600 3
Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 20-21, citing State ex rel.
Grein v. Ohio State Hwy. Patrol Retirement Sys., 116 Ohio St.3d 344, 2007-Ohio-6667, ¶
9. Furthermore, "the presence of contrary evidence is immaterial, so long as the 'some
evidence' standard has been met." State ex rel. Am. Std., Inc. v. Boehler, 99 Ohio St.3d 39,
2003-Ohio-2457, ¶ 29. "Only if the board's decision is not supported by any evidence will
mandamus lie." (Emphasis sic.) State ex rel. Woodman v. Ohio Pub. Emps. Retirement
Sys., 144 Ohio St.3d 367, 2015-Ohio-3807, ¶ 17.
{¶ 7} Here, the magistrate properly determined that because there is some
evidence in the record to support the board's denial of relator's application for disability
benefits, relator is not entitled to mandamus relief. Specifically, the magistrate correctly
identified the reports of Drs. Steiman and Mankowski as being "some evidence" upon which
the board properly relied in denying relator's application for disability benefits.
Furthermore, we find the file reviews of the medical evidence conducted by Managed
Medical Review Organization ("MMRO") and Dr. Mast are also "some evidence" upon
which the board properly relied. Thus, we agree with the magistrate's finding that there
was "some evidence" before the board to support a finding that relator is not permanently
disabled from his last public employment position, and therefore the board did not abuse
its discretion in denying relator's disability benefits application.
{¶ 8} Turning to relator's objections, we find meritless relator's argument that the
reports of Drs. Steiman and Mankowski should not have been considered by the board
because they should have been excluded as being confusing, misleading, and unfairly
prejudicial to relator pursuant to Evid.R. 403. Relator has cited no authority for his
proposition that the rules of evidence are applicable to determinations undertaken by the
board pursuant to R.C. 145.35, nor was this court able to find any such authority. Therefore,
we reject in toto this argument of relator.
{¶ 9} Furthermore, the record indicates that both Drs. Steiman and Mankowski are
board-certified in neurology and their reports are probative of the matter at issue, i.e.,
whether relator was permanently disabled so as to entitle him to disability benefits. Their
IME reports are precisely what the board is required to consider pursuant to R.C. 145.35(E).
{¶ 10} Moreover, each of the IME reports demonstrated an understanding of the
claimant’s duties as a Highway Technician for the Ohio Department of Transportation
No. 19AP-600 4
("ODOT"), and each of the IME reports reflected consideration of those duties in the
context of reaching an opinion as to whether the claimant was permanently disabled. As
set forth in the findings of fact, these IME reports are detailed in their discussion of the
finding from the physical exams. Drs. Steiman and Mankowski each examined relator and
each concluded that relator was not permanently disabled. Thus, notwithstanding relator's
contention that Dr. Steiman's report was incomplete and lacked detail and that Dr.
Mankowski's report was prejudicial as being "speculative," the reports of Drs. Steiman and
Mankowski were properly considered by the board and constituted some evidence in
support of its decision to deny the claimant’s application. Relator's first objection is
overruled.
{¶ 11} We likewise find meritless relator's contention that the board failed to meet
its fiduciary duty to relator by not excluding the IME reports of Drs. Steiman and
Mankowski based on Evid.R. 403. As previously set forth, there is no authority for relator's
proposition that the rules of evidence apply to this matter in any event. Furthermore, while
it is accurate that OPERS has a fiduciary duty "to administer each individual's plan for the
benefit of the participant or its designated beneficiary," Poliseno v. Mitchell, 10th Dist. No.
09AP-1002, 2010-Ohio-2615, ¶ 22, in this case there is no support in the record for relator's
contention that the board breached this fiduciary duty by properly considering the IME
reports of Drs. Steiman and Mankowski. Relator's second objection is overruled.
{¶ 12} Having overruled both of relator's objections, and having conducted an
examination of the magistrate's decision and an independent review of the record pursuant
to Civ.R. 53, we find that the magistrate properly applied the relevant law to the salient facts
in reaching the conclusion that relator is not entitled to a writ of mandamus. Accordingly,
we adopt the magistrate's decision as our own, including the findings of fact and
conclusions of law contained therein, and we deny relator's request for a writ of mandamus.
Objections overruled; writ of mandamus denied.
KLATT and MENTEL, JJ., concur.
APPENDIX
No. 19AP-600 5
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael Ray Powell, Jr., :
Relator, :
v. : No. 19AP-600
Ohio Public Employees Retirement System, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on October 1, 2020
Law Offices of Gary A. Reeve, and Gary A. Reeve, for relator.
Dave Yost, Attorney General, Samuel A. Peppers, III, and
Mary Therese J. Bridge, for respondent.
IN MANDAMUS
{¶ 13} Relator, Michael Ray Powell, Jr., seeks a writ of mandamus ordering
respondent, Ohio Public Employees Retirement System ("OPERS"), to vacate its order
denying relator's application for disability benefits, and grant such benefits retroactive to
the date of application. Relator also asks that OPERS pay relator's reasonable attorney's
fees and costs incurred in pursuing this mandamus action.
Findings of Fact:
{¶ 14} 1. Relator worked as a Highway Technician for the Ohio Department of
Transportation ("ODOT").
No. 19AP-600 6
{¶ 15} 2. On July 10, 2015, relator underwent neck surgery consisting of a cervical
discectomy, cervical fusion, and interior plating.
{¶ 16} 3. Relator returned to work after his neck surgery, but on October 28 or 29,
2015, he fell from a ladder at work landing on his head, neck, and the right side of his body.
{¶ 17} 4. The next day relator suffered from headaches, neck pain, right shoulder
pain, and sought treatment in a hospital emergency room. He was diagnosed with a
concussion and discharged to return home.
{¶ 18} 5. Relator returned to work until December 1, 2015 (according to a medical
report submitted with his disability application) or November 3, 2015 (according to a later
medical report), when he stopped working on medical advice.
{¶ 19} 6. Relator submitted his disability benefit application on November 30,
2017.
{¶ 20} 7. In support of his disability benefit application, relator submitted the
report of a treating physician, Steven E. Katz, M.D., assessing the following conditions:
[One] Trigeminal neuralgia right
[Two] Dysesthesia right trigeminal, divisions 1 through 3
[Three] Subjective vision disturbance [***]
[Four] Photosensitivity
[Five] Blurred vision
[Six] Chronic daily headache
[Seven] Migraine with aura and without status migrainosus,
not intractable
[Eight] Nuclear sclerosis of both eyes
[Nine] OSA (obstructive sleep apnea)
[Ten] Essential hypertension
{¶ 21} 8. Relator also submitted a report prepared by W. Jerry Mysiw, M.D.,
prepared in conjunction with ODOT's formal position description for relator's job duties
and assessing relator's conditions in light of OPERS' disability standard:
No. 19AP-600 7
[One] Member Complaints:
Migraine, neck and shoulder pain
[Two] Member Symptoms:
Pain scale 6-6 in neck and shoulders radiates to RUL. Trouble
falling/staying asleep, wakes frequently with night sweats.
Poor balance, near falls. Photo-sensitivity. Neurocognitive
fatigue. Memory loss, inattention and slow information
processing impaired focus, impaired, divided and slowed
processing speed. Executive dysfunction. Irritability, low
frustration tolerance, anger control difficulty and decreased
initiation or motivation. Depressed mood, irritability, low
motivation and social withdrawal. Anxiety, Panic episodes.
[Three] Current Medications:
Lorazepam 1 mg. Hydrocodone-Acetaminophen 10/325.
Lunesta 3 mg. Lidocaine 4% solution.
[Four] Laboratory and/or Diagnostic Findings:
Last labs 2015
11/14/17: MRI BRAIN WITHOUT CONTRAST:
IMPRESSION: No acute intracranial abnormality or mass
effect.
[Five] Historical Treatment/Care Plan
Medication management
Brain MRI
[Six] Current Treatment/Care Plan:
Referral to Sheital Bavishi, DO for acupuncture for post
concussive Cervicogenic daily migraines, neck pain and med
back pain. Medication management[.]
[Seven] Has member shown medical improvement with
Current Treatment/Care Plan? Yes.
If yes, indicate level of improvement: Fair.
[Eight] Prognosis for recovery from disabling condition(s):
Fair at present.
No. 19AP-600 8
{¶ 22} Based upon assessments of relator's ability to perform various
lift/pull/carry/push and climbing tasks, Dr. Mysiw concluded that relator was
"permanently disabled from his last public employment position."
{¶ 23} 9. OPERS, pursuant to its contract with Managed Medical Review
Organization ("MMRO"), scheduled relator for an independent medical evaluation with
MMRO's evaluating physician, Gerald Steiman, M.D. Dr. Steiman completed his
independent medical evaluation of relator on February 28, 2018, including a physical
examination, a review of relator's medical records, and a review of ODOT's job description.
On March 14, 2018, Dr. Steiman produced a report with the following assessment:
JOB ACTIVITY: I reviewed Mr. Powell's job description and
worker characteristics including the job duties and minimal
acceptable characteristics. Mr. Powell indicates he was a
Highway Technician 3C/M who would operate heavy
equipment. At the advice of Dr. Bridger, he has not been
released to return to work since November 3, 2015 due to a
diagnosis of post-concussion syndrome.
COMPLAINTS: Mr. Powell indicates he has two types of
headaches. One type is a migraine headache. The pain begins
behind an eye, more so on the right than the left. It is a sharp,
throbbing pain with photophobia, which occurs 1-2 times a
month. Whenever he has the pain he uses the lidocaine nasal
spray which aborts the headache within minutes. A second
type of headache Mr. Powell calls a cervicogenic headache. It
is a pain that begins in the back of his neck and upper back. It
spreads to involve the back and sides of his head. This is a
constant waxing and waning pressure/burning sensation. It
may occur 2-3 times a week and may last several days at a
time. He cannot recall going one day totally headache free
with respect to his cervicogenic headaches. Associated with
this headache is a "white" noise. If the headache becomes
severe he might have nausea or light sensitivity.
Mr. Powell further complains of a constant double vision
which he describes as a halo. He describes monocular double
vision. When he closes the left eye and looks through the right
eye, he has a halo/double vision. When he closes the right eye
No. 19AP-600 9
and looks through the left eye, his vision is clear. When he
looks through both eyes, his vision is characterized by a halo.
Mr. Powell indicates he has an off balance sensation. He has
ringing in his ears with slowed thinking and he is easily
confused.
***
REVIEW OF SYSTEMS: The neurological review of
systems is positive for headache, confusion, personality
change, double vision, decreased hearing, arm weakness,
short attention span, dizziness, forgetfulness, facial
numbness/tingling, impulsiveness, speech difficulty, night
vision difficulty, sleeping difficulty, distractibility, and
difficulty walking.
The general health review of systems is positive for weight
gain, blurred vision, glasses, ringing in the ears, urinary
frequency, dry hair, excessive thirst, seasonal allergies, joint
stiffness, chronic pain, difficulty sleeping, and lack of energy.
PAIN PERCEPTION: Mr. Powell was asked to complete an
assessment to document his perception of how his accident
and/or injuries have affected his life. Mr. Powell's Pain
Disability Questionnaire (PDQ) score of 109 indicates he has
a moderate pain-related impairment.
***
MEDICAL RECORD REVIEW:
***
In March 2016, Dr. Rust, a neurologist, noted Mr. Powell fell
from a ladder in October 2015 with a possible loss of
consciousness. Mr. Powell complained of neck pain radiating
to the right 5th digit with numbness on the right side of his
face as well as blurred vision in his right eye and light
sensitivity. Dr. Rust opined headache, neck pain, visual
disturbance, post-concussion syndrome, and possible cervical
radiculopathy. Dr. Rust recommended Elavil, Norco, physical
therapy, and an optometry referral.
In November 2016, Dr. Katz obtained the history that Mr.
Powell fell off a ladder but did not lose consciousness. He was
followed by Dr. Bridger at WorkHealth. Dr. Katz diagnosed
right trigeminal neuralgia, subjective visual loss, light
sensitivity, blurred vision, chronic daily headaches,
No. 19AP-600 10
migraines, nuclear sclerosis, obstructive sleep apnea, and
hypertension.
In October 2017, Dr. Mysiw, a physiatrist, opined Mr. Powell
suffered from migraines, cervicogenic headaches, a cognitive
deficit, sleep disorder and difficulty controlling his behavior
due to a traumatic brain injury, balance disturbances, and a
post-concussion syndrome. Dr. Mysiw recommended an MRI
of the brain.
Mr. Powell returned to Dr. Bridger on November 7, 2017. He
was diagnosed with a cervical-thoracic-right shoulder sprain
with head contusion. On November 9, 2017, there is reference
to an MRI of the right shoulder. In January 2018, Dr. Mysiw
recommended acupuncture.
EXAMINATION:
***
The cranial nerve exam reveals normal pupils and eye
movements. His gaze is conjugate and he does not exhibit
nystagmus. He has mild drooping of the right eyelid. When
testing his vision, he has monocular right-sided
halo/diplopia. specifically, when covering his right eye, his
vision is clear and distinct. When covering his left eye, he has
a halo or double vision. When looking through both eyes, his
vision is characterized by a halo.
Within the cervical spine, a well healed, almost imperceptible
scar is noted consistent with his operative history. Diffuse
tenderness is noted throughout the cervical paraspinal
muscles into the upper thoracic paraspinal region. He does
not demonstrate muscle spasm in neutral posture although
the cervical range of motion is limited by muscle guarding.
Mr. Powell does not exhibit a painful tender or trigger point
in the occipital, low cervical, trapezius, or supraspinatus
regions. His Spurling signs are negative for nerve root
compromise. His facet loading tests are negative for cervical
instability. Cervical range of motion is performed with
moderate discomfort with extension which Mr. Powell blames
on his prior surgery. Mr. Powell demonstrates 35-40 degrees
of forward flexion, 10-15 degrees of extension, 15-20 degrees
of right and left lateral bending, and 35-40 degrees of rotation
to either side.
DISCUSSION:
No. 19AP-600 11
***
Mr. Powell presents for an Independent Medical Evaluation
with an eligible diagnosis of intractable migraines without
aura and without status migrainosus. As noted within the
medical record review, Mr. Powell suffers from multiple other
medical diagnoses. It is evident that Mr. Powell's migraines
are not intractable as he is on treatment which aborts his
migraines within a few minutes. Mr. Powell indicates that
whenever he has a migraine headache, he takes the Lidoderm
nasal spray which aborts his symptom complex within a few
minutes. As such, his migraine headaches are neither
intractable nor provide a significant limitation in his activities
of daily living or occupational pursuits.
***
CONCLUSION:
***
QUESTION #2: Per OPERS definition of permanent
disability, is the claimant presumably permanently disabled
for the performance of their own occupation as a public
employee, Highway Technician 3C/M[?] Please provide
supporting rationale for your decision of either approval or
disapproval of permanent disability.
ANSWER: No, when considering the OPERS definition of
permanent disability, Mr. Powell is not permanently disabled
for the performance of their own occupation as a public
employee, Highway Technician 3C/M. The eligible diagnosis
of intractable migraine without aura and without status
migrainosus is easily controlled with appropriate medication
and do not incapacitate him from performing his own
occupation. Mr. Powell indicated he has excellent pain relief
within minutes of using the Lidocaine nasal spray.
***
QUESTION #5: If there is objective medical evidence to
support disability, please comment on expected treatment,
duration, and prognosis.
[ANSWER:] No, there is no objective medical evidence to
support disability. Mr. Powell's eligible diagnosis is
manifested only by subjective complaints/symptoms and not
No. 19AP-600 12
by objective medical evidence. His subjective complaints are
valid and consistent with the eligible diagnosis. There is no
evidence of magnification or embellishment.
***
QUESTION #7: Do the claimant's subjective
complaints/symptoms correlate with objective clinical
findings? If no, please explain.
ANSWER: No, the observed activities/behavior do not
correlate with the objective clinical findings because Mr.
Powell's eligible diagnosis is characterized by subjective
complaints/symptoms without objective clinical findings. The
observed activities/behavior do correlate with the eligible
diagnosis. His subjective complaints are valid and there is no
evidence of magnification or embellishment.
***
QUESTION #9: In your medical opinion, please elaborate
on the claimant's ability or inability to perform their specific
job tasks based on the enclosed job description and eligible
diagnosis.
[ANSWER:] No, there is no credible evidence that Mr.
Powell is unable to perform the specific job tasks based on the
enclosed job description and eligible diagnosis. Mr. Powell's
history, physical exam, and medical record review provide
credible evidence that he is capable of performing the
requirements of his job activity without limitation or
restriction.
{¶ 24} 10. Relator attempted to submit additional records in the form of further
assessments by Dr. Mysiw, which OPERS refused to consider because the matter had
already been submitted to MMRO for an independent medical review.
{¶ 25} 11. MMRO contacted Dr. Steiman requesting a supplemental report
answering an additional question. Based on Dr. Mysiw's description of relator's
cervicogenic daily headaches as migraines, Dr. Steiman was asked to consider the
cervicogenic migraines described in his reports as migraine headaches for which the
No. 19AP-600 13
disability question could be answered. Dr. Steiman issued a letter dated April 4, 2018,
stating as follows:
When considering the diagnosis of cervicogenic headaches
and the OPERS definition of permanent disability, Mr.
Powell's history, medical record review, and physical
examination provide credible evidence he is not disabled from
his occupation as a public employee, Highway Technician
3C/M.
{¶ 26} 12. Based on Dr. Steiman's evaluation, MMRO issued an ultimate
recommendation that OPERS disapprove relator's application for disability benefits based
on a finding of insufficient objective evidence of permanent disability.
{¶ 27} 13. The OPERS board denied relator's application at its May 16, 2018
meeting.
{¶ 28} 14. Relator submitted an appeal request form seeking further review of his
application.
{¶ 29} 15. At OPERS' request, MMRO scheduled another independent medical
evaluation for relator with Kenneth Mankowski, D.O. Dr. Mankowski examined relator and
produced a report answering ten specific questions:
[Two] Per OPERS definition of permanent disability,
is the claimant presumably permanently disabled for
the performance of their own occupation as an
employee?
No. Based on the eligible medical conditions of this claim the
claimant is not presumed to be permanently disabled from the
performance of his job as a Highway Technician 3C/M
beginning on the disability application date of 11/30/2017 for
a continuous period of at least 12 months. There is simply no
credible medical evidence presented to conclude that the
claimant is considered permanently disabled as related to the
eligible medical conditions of this claim. This conclusion is
based on the following:
No. 19AP-600 14
-Intractable migraines without aura and without status
migrainous are episodic and treatable. This type and severity
of migraine does not result in permanent disability and would
preclude him from performing his job as a Highway
Technician 3C/M. It is important to recall, there are no
associated neurological deficits or altered awareness.
-None of the treating physicians, Dr. Steiman, or myself
reported or described neurological deficits on examination.
-Post concussive cervicogenic headaches as related to
traumatic brain injury of this type and severity does not result
in permanent disability that would prevent him from
performing his public employee job for a period of 12 months
from the 11/30/17 date. Again, these headaches were episodic
and treatable and not associated with neurological deficits. In
my opinion, this condition was self-limiting and resolved
within 3 months of the actual injury. This conclusion is based
upon the mechanism of injury, the severity of the injury,
subjective symptoms, and the known natural history of this
condition. There was no objective evidence of this condition
at the time of my examination on October 9, 2018. There has
been no credible evidence presented to support the presence
of this condition.
[Three] Do you anticipate a clinically significant
change in the claimant's disabling condition within
12 months from the members disability application?
Yes. Based on the type and severity of the condition of
intractable migraines without aura and without status
migrainous and the natural history of this condition, it is more
likely than not that he will improve over this period starting
11/30/17 and beyond. It is expected and probable that the
claimant's disabling condition of intractable migraines
without aura and without status migrainous will improve
resulting in less frequent and less intense symptoms. This
improvement is expected to occur within 12 months from the
application date of 11/30/2017.
As previously stated, the condition of post concussive
cervicogenic headaches as related to traumatic brain injury
was self-limiting and resolved within 3 months of the initial
injury in October 2015. There is no residual pathology. Any
ongoing symptoms are unrelated to this condition, which has
resolved.
No. 19AP-600 15
***
[Seven] Do the claimant's subjective
complaints/symptoms correlate with your objective
clinical findings? If no, please explain.
The claimant's subjective complaints are out of proportion to
the objective clinical findings. The subjective complaints are
out of proportion to the objective clinical findings. The
subjective visual symptoms are not correlated with any
objective findings on examination. I agree with Dr. Katz wo
described the visual disturbances as subjective. It is important
to note, that although there are no objective findings that
correlate with the subjective complaint of headache, this is not
uncommon with this type of diagnosis.
***
[Nine] In your medical opinion, please elaborate on
the claimant's ability or inability to perform their
specific job tasks based on the enclosed job
description and eligible diagnosis(es).
In my opinion, the condition of intractable migraines without
aura and without status migrainous is episodic and treatable
and not associated with any neurological deficits which would
preclude him from performing job tasks as described by the
enclosed job description. Specifically, the migraines are not
associated with any of the following: aura, vision loss, focal
neurological deficits, intractable emesis or altered awareness.
The condition of post concussive cervicogenic headaches as
related to traumatic brain injury was self-limiting and
resolved without residual pathology. When the condition did
exist, it was not associated [with] neurological deficits and did
not interfere with the claimant's ability to perform his specific
job tasks.
[Ten] If applicable and the applicant is now
permanently disabled from their public position,
please elaborate as to what has changed since his
previous IME/PE that this has now disabled him
from his public position.
In my opinion, the claimant is not permanently disabled from
their public position.
No. 19AP-600 16
(Emphasis sic.)
{¶ 30} 16. In support of his appeal, relator submitted an additional report from Dr.
Mysiw.
{¶ 31} 17. MMRO again recommended denial of relator's disability application, and
the OPERS board upheld denial of disability benefits at its November 14, 2019 meeting.
Discussion and Conclusions of Law:
{¶ 32} Mandamus is the appropriate remedy where no statutory right of appeal is
available to correct an abuse of discretion by an administrative body. State ex rel. Cydrus v.
Ohio Pub. Emps. Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12, citing State
ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 14.
A clear legal right to a writ of mandamus exists when an agency is found to have abused its
discretion by entering a decision that is not supported by some evidence. State ex rel.
Schaengold v. Pub. Emps. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760, ¶ 19. A
decision by a retirement system board will not be disturbed simply because the presence of
contrary evidence, as long as the "some evidence" standard has been met. State ex rel. Am.
Std., Inc. v. Boehler, 99 Ohio St.3d 39, 2003-Ohio-2457, ¶ 29. "Only if the board's decision
is not supported by any evidence will mandamus lie." (Emphasis sic.) State ex rel.
Woodman v. Ohio Public Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-3807,
¶ 17.
{¶ 33} A review of the medical reports furnished to OPERS makes clear that, while
the reports do not all agree in their conclusions, there is some evidence to support the
board's decision to deny relator's disability benefits application.
{¶ 34} Dr. Steiman concluded, as set forth at length above, that relator's migraines
were not untreatable because his Lidoderm nasal spray provided relief within a few
No. 19AP-600 17
minutes. Dr. Steiman expressly concluded that there was no current disabling diagnosis.
Dr. Steiman also expressly concluded that there was no objective medical evidence to
support disability and, thus, no credible evidence to support a conclusion that relator was
unable to perform the job tasks in his ODOT job description.
{¶ 35} Dr. Mankowski likewise concluded that relator was not permanently
disabled, that relator's migraine headaches would improve over time, and the condition of
post-concussion cervicogenic headaches was self-limiting and would have resolved within
three months of the initial injury. Dr. Mankowski observed no residual pathology of
ongoing symptoms.
{¶ 36} The board is not required to accept the views of any particular doctor or
doctors, or give greater weight to the applicant's treating physicians. Relator's argument,
therefore, that the board failed to properly consider his own treating physician's
conclusions that he was disabled is not conclusive. Pipoly at ¶ 24-26. Nor did Drs. Steiman
and Mankowski fail to fully consider the two forms of headaches experienced by relator.
"[S]ubjective complaints are not conclusive of disability, and objective medical evidence is
still relevant to a determination of the severity of the condition." State ex rel. VanCleave v.
School Emps. Retirement Sys., 120 Ohio St.3d 261, 2008-Ohio-5377, ¶ 47; see also State ex
rel. Morgan v. State Teachers Retirement Bd., 121 Ohio St.3d 324, 2009-Ohio-591, ¶ 24.
{¶ 37} Both on initial review and after relator filed his appeal from the initial denial,
there was some evidence before the board to support a finding that relator is not
permanently disabled from his last public employment position. For these reasons, the
magistrate concludes that respondent did not abuse its discretion in denying relator's
disability benefits application, and it is the magistrate's decision that this court deny
No. 19AP-600 18
relator's request for a writ of mandamus. As a result, relator's application for fees and costs
is also denied.
/S/ MAGISTRATE
MARTIN L. DAVIS
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).