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


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  • [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).