The opinion
[Cite as State ex rel. Moorhead v. Bd. of Ohio Hwy. Patrol Retirement Sys., 2014-Ohio-2499.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Shannon M. Moorhead, :
Relator, :
v. : No. 13AP-575
Board of Ohio Highway Patrol : (REGULAR CALENDAR)
Retirement System and Ohio
Highway Patrol Retirement System, :
Respondents. :
D E C I S I O N
Rendered on June 10, 2014
Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for
relator.
Michael DeWine, Attorney General, and Brandon C. Duck,
for respondents.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Shannon M. Moorhead, has filed this original action requesting this
court issue a writ of mandamus ordering respondent, Ohio Highway Patrol Retirement
Board ("OHPRB"), to vacate its decision denying her application for disability retirement
and ordering OHPRB to find that she is entitled to that disability retirement.
{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate of this court who examined the evidence
and issued the appended decision which included findings of fact and conclusions of law.
No. 13AP-575 2
The magistrate recommends this court deny relator's request for a writ of mandamus.
Relator has filed objections to the magistrate's decision.
{¶ 3} In her first objection, relator contends that the magistrate erred in denying
her motion for discovery. Specifically, relator asserts that because this is an original
action pursuant to Loc.R. 2(B) of the Tenth District Court of Appeals, she was entitled to
discovery that may have led to evidence demonstrating a conflict of interest between the
independent medical examiner, Marjorie C. Gallagher, M.D., and OHPRB. We disagree.
{¶ 4} Relator is not entitled to discovery because the sole issue for determination
in this mandamus action is whether OHPRB abused its discretion when it denied relator's
disability application. This court has stated that whether a retirement board "abused its
discretion in denying disability retirement benefits is limited to consideration of evidence
contained in the record." State ex rel. Davis v. School Emps. Retirement Sys., 10th Dist.
No. 08AP-214, 2008-Ohio-4719, ¶ 22, citing State ex rel. Marchiano v. School Emps.
Retirement Sys., 10th Dist. No. 07AP-486, 2008-Ohio-2798. Further, relator waived any
argument regarding a possible conflict of interest between Dr. Gallagher and OHPRB
when she failed to raise the issue in the proceedings before OHPRB. State ex rel.
Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 31.
{¶ 5} Accordingly, the relator's first objection to the magistrate's decision is
overruled.
{¶ 6} In her second objection, relator asserts the magistrate erred as a matter of
fact and law when the magistrate found relator is not entitled to an order that respondent
grant her application for disability retirement benefits. Relator argues independent
physicians concluded she suffered from posttraumatic stress disorder ("PTSD"), yet Dr.
Gallagher "refused to even acknowledge the diagnosis of PTSD" and, instead, diagnosed
relator as suffering from anxiety disorder. Therefore, relator argues OHPRB should have
given no weight to Dr. Gallagher's opinion when considering relator's application.
{¶ 7} However, where there is conflicting medical evidence, a court cannot
substitute its own judgment for that of the board and find an abuse of discretion. State ex
rel. Bruce v. State Teachers Retirement Bd. of Ohio, 153 Ohio App.3d 589, 2003-Ohio-
4181, ¶ 7 (10th Dist.). An abuse of discretion connotes a board decision that is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
No. 13AP-575 3
219 (1983). Where some evidence in the record supports the board's decision, it has not
abused its discretion. Marchiano, 2009-Ohio-307, ¶ 21.
{¶ 8} Dr. Gallagher's medical evaluation noted relator's condition and symptoms
had improved since she first returned to work following the fatal car accident in which she
was involved. Further, Dr. Gallagher found relator's symptoms, at the time of the
evaluation, did not meet the necessary criteria for PTSD nor did the symptoms interfere
with relator's ability to function. Because OHPRB relied on the medical evidence in Dr.
Gallagher's report, we agree with the magistrate's conclusion that OHPRB relied on some
medical evidence supporting a finding that relator was not entitled to disability
retirement. Accordingly, we overrule relator's second objection to the magistrate's
decision.
{¶ 9} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration to relator's objections, we
overrule both of relator's objections and adopt the magistrate's findings of fact and
conclusions of law. Accordingly, we deny relator's request for a writ of mandamus.
Objections overruled; writ denied.
BROWN and O'GRADY, JJ., concur.
No. 13AP-575 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Shannon M. Moorhead, :
:
Relator,
:
v. No. 13AP-575
:
Board of Ohio Highway Patrol (REGULAR CALENDAR)
Retirement System and Ohio :
Highway Patrol Retirement System,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on February 26, 2014
Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for
relator.
Michael DeWine, Attorney General, and Brandon C. Duck,
for respondents.
IN MANDAMUS
{¶ 10} Relator, Shannon M. Moorhead, has filed this original action requesting
that this court issue a writ of mandamus ordering respondent the Ohio Highway Patrol
Retirement Board ("HPRB" or "board"), to vacate its decision which denied her
application for a disability retirement and ordering the board to find that she is entitled
to that disability retirement.
No. 13AP-575 5
Findings of Fact:
{¶ 11} 1. On December 18, 2010, relator was driving in her cruiser when another
car pulled out in front of her and she was unable to stop. Relator's cruiser struck the
driver's side door and ultimately the driver died.
{¶ 12} 2. Relator has a workers' compensation claim which was originally
allowed for the following conditions: "Sprain Lumbar Region[;] Adjustment Reaction-
Mixed Emotion[;] Sprain of Ribs, Bilateral[;] Contusion of Lower Leg, Left[;] Head
Injury, Unspecified[;] Sprain Shoulder/Arm NOS, Right Shoulder[;] Sprain of Neck[;]
Sprain Elbow/Forearm NOS, Bilateral Forearm[;] Sprain of Wrist NOS, Bilateral."
{¶ 13} Ultimately, relator's workers' compensation claim would be additionally
allowed for "posttraumatic stress disorder" ("PTSD").
{¶ 14} 3. Relator returned to full duty employment as a highway patrol officer in
November 2011.
{¶ 15} 4. Her first weekend back at full duty employment, relator responded to a
fatality. In her interview with Marjorie C. Gallagher, M.D., relator indicated that she
handled that crash fairly well. Relator responded to another fatality on March 13, 2012.
Relator told Dr. Gallagher that she handled the crash fairly well but was bothered more
and had some nightmares. Relator responded to another fatality on March 20, 2012. In
her interview with Dr. Gallagher, relator indicated that she was extremely upset at the
manner in which the crash scene was handled. The decedent's body was left out in plain
sight for hours. She explained that this crash was "just like hers. The male driver had
no choice and could not do anything about it." At this time, relator began having
nightmares again visualizing the face of the lady who recently died on the face of the
man who died in the accident in which she was involved. At this time, she sought
psychological counseling with Ralph E. Skillings, Ph.D.
{¶ 16} 5. On July 6, 2012, relator filed her first application for disability benefits.
On her application, relator explained:
PTSD- Post [Traumatic] Stress Disorder. I was diagnosed
with PTSD as a result of being involved in an on-duty fatality
crash. (12/18/10). On 3/20/12, I handled a fatal crash very
similar to my own fatal crash.
No. 13AP-575 6
{¶ 17} 6. Attached to her application, relator included a document which detailed
her job duties as a highway patrol officer. Those duties included investigating non-
injury, injury, and fatal crashes.
{¶ 18} 7. Relator submitted the July 3, 2012 report of her treating physician Dr.
Skillings. According to Dr. Skillings, he expected that relator's condition would
improve, but she needed more treatment. He noted that relator stated that she cannot
investigate fatal crash events any longer. Ultimately, Dr. Skillings opined that relator
was not totally incapacitated from performing her specific job duties and
responsibilities, and that her incapacitation was not permanent.
{¶ 19} 8. Because her treating physician did not consider her disabled, her
application was not considered.
{¶ 20} 9. Relator filed her second application for disability benefits on
November 2, 2012. On her application, relator explained:
PTSD - Post [Traumatic] Stress Disorder. I was diagnosed
with PTSD as a result of being involved in an on-duty fatality
crash, which occurred on 12/18/10. On 03/20/12, I
investigated a fatal crash which was very similar to my fatal
crash, resulting in the reoccurring PTSD.
{¶ 21} 10. Relator's application was supported by the October 11, 2012 report of
Hong S. Kang, M.D. According to Dr. Kang, relator's condition was guarded/poor and
she was permanently disabled. Dr. Kang noted that stress could cause her condition to
worsen.
{¶ 22} 11. HPRB referred relator to Dr. Gallagher for an independent medical
evaluation. In her December 17, 2012 report, Dr. Gallagher provided a detailed
summary concerning the original accident in December 2010, relator's response to that
treatment, as well as the three fatal car accidents which occurred after she returned to
full duty work in November 2011. Concerning her treatment with Dr. Skillings and the
reasons she changed physicians, Dr. Gallagher summarized:
Trooper Moorhead reports that she was in treatment with
psychologist Dr. Skillings initially several days a week and
then once a week starting in 1/2011. According to Trooper
Moorhead, PTSD was officially on her BWC record in 3/2011.
Trooper Moorhead reports that she was in treatment with
Dr. Skillings once a week from 3/2012 to 7/2012 and every
No. 13AP-575 7
three weeks since 7/2012 until the end of 9/2012 when she
had stopped treatment with him. She reports that during
treatment she had gone back to the crash scene several times
a week. Trooper Moorhead admits that she had stopped
treatment with Dr. Skillings after she had felt betrayed that
he had indicated that she would be able to return to work as
a trooper at some point. According to Trooper Moorhead,
she quit therapy with Dr. Skillings because he thought that
he could get her back to work. Trooper Moorhead reports
that she had started treatment with psychiatrist Dr. Kang in
9/2012 and was seeing him every three weeks. Her next
appointment is in 5 weeks.
{¶ 23} Dr. Gallagher noted on several occasions that relator was improving. For
example, relator reported that she had gained weight; however, she began working out
and lost a significant amount of weight. Further, relator reported that she isolated
herself and was socially withdrawn, and did not socialize with friends; however, she
then indicated that she has two good friends with whom she ate lunch once a month.
Her reasons for not eating with them recently was because they had all been busy.
Further, relator reported that she and her husband socialized with another couple, she
recently drove to Mississippi to visit her parents, and traveled to Virginia over
Thanksgiving. Ultimately, in the discussion portion of her report, Dr. Gallagher stated:
Trooper Moorhead reports that she has been diagnosed with
posttraumatic stress disorder. She was involved in a fatal car
accident in 2010. She was very symptomatic following the
accident, but obtained treatment and was able to return to
work in 5/2011. Her job requires her to work car accident
scenes. From her history, she was eager to go and help other
troopers at car crash scenes after she had returned to work.
She then had to work a scene that upset her, but her
symptoms have improved quickly and have not been nearly
as severe as they had been in 2010. She does not want to
return to work as a trooper as she does not want to work car
crash scenes anymore. She wants to retire on disability.
Currently Trooper Moorhead's symptoms are mild and do
not meet the diagnostic criteria for posttraumatic stress
disorder at this time. She was able to describe the crash
scene in which she was involved and the other crash scenes
in detail without evidence of any distress or anxiety. She
admits to an improvement in her symptoms of anxiety. She
reports that she has some anxiety symptoms when she
No. 13AP-575 8
drives, but admits that she does not avoid driving and drives
every day. She has nightmares twice a month. She wants to
avoid car crash scenes, but did not when she had returned to
work after the car crash in 2010. In fact, she was eager to
help fellow troopers with other car crash scenes. No other
symptoms of posttraumatic stress disorder were elicited.
Trooper Moorhead reports difficulty with concentration, but
there was no evidence during the psychiatric evaluation or
on testing for dementia of any concentration impairment.
She also reported that she isolates and is socially withdrawn,
but objectively, from her extensive list of activities, she
socializes with friends and family. She reports that she
worries and always has. The anxiety predated her
employment as a State Highway Patrol Trooper. Trooper
Moorhead further reports some mild obsessive and
compulsive symptoms, but the symptoms are not severe
enough to meet the diagnostic criteria for Obsessive-
Compulsive Disorder. She reported that she stutters, but did
not stutter at any point during the evaluation. She reports
that she cries, but did not cry at any point during the
evaluation.
Significantly, Trooper Moorhead admits to alcohol abuse.
She reports that she has four to five drinks twice a month. A
female drinking more than two drinks is considered alcohol
abuse. In addition, she takes Valium intermittently. The
combination of alcohol and Valium can be lethal. Trooper
Moorhead admits that she had had three drinks the day prior
to the evaluation and then took Valium the day of the
evaluation.
Trooper Moorhead is in treatment with a psychiatrist. She is
being treated appropriately with Cymbalta and clonodine. It
is recommended that Valium be stopped and other safer
antianxiety medication be prescribed if necessary. Trooper
Moorhead is [sic] also been treated with Depakote. A blood
level, which she has never had, is recommended. It is further
recommended that her alcohol abuse be addressed in
treatment. Trooper Moorhead admits that she had quit
treatment with her psychologist because he thought that he
could get her back to work again. Her psychologist had been
able to help her return to work when her symptoms had been
more severe and had lasted longer. The intensive physical
therapy for three hours qd is helping significantly.
Trooper Moorhead reports an extensive list of activities that
includes driving out of town. Any psychiatric symptoms
No. 13AP-575 9
Trooper Moorhead currently has are not severe enough to
interfere with her ability to function. Given the improvement
in her psychiatric symptoms with treatment, medication, and
extensive physical therapy, her extensive list of activities,
performance on testing for dementia, and mental status
during the clinical psychiatric evaluation, it is my opinion
that Trooper Moorhead is not permanently or presumed to
be permanently disabled based on psychiatric evaluation and
is able to return to work as a trooper.
{¶ 24} 12. In a memo dated January 23, 2013, the board's medical consultant
Earl N. Metz, M.D., issued a memo for the record summarizing relator's file. Dr. Metz
stated:
Ms. [Moorhead's] file is a thick one. * * * Throughout the
record there is evidence of detailed psychological interviews
most of which conclude that the trooper has evidence of
PTSD. However, there are some discrepancies in the
opinions among her medical care givers. A psychologist, Dr.
Ralph Skillings, seems to have been the major source of
treatment during the past two years or so, yet he notes that
she is not totally disabled. A psychiatrist in Portsmouth, Dr.
Hong Kang, has declared her totally disabled.
On November 28, 2012, Trooper [Moorhead] was examined
by an independent psychiatrist, Dr. Marjorie Gallagher. Dr.
Gallagher's report contains details of Ms. [Moorhead's]
employment and her psychosocial history - she also explains
the difference between the reports by Dr. Skillings and Dr.
Kang. When Dr. Skillings reported that the trooper should be
able to return to work, she stopped seeing him and began her
psychiatric counseling with Dr. Kang. The trooper told Dr.
Gallagher that she would not return to the patrol, a job that
required her to work fatal crashes. The sum of the history
relayed to Dr. Gallagher led her to believe that Ms.
[Moorhead] had improved enough and had enough
psychological resiliency to return to work as a trooper.
Dr. Gallagher's bottom line is that Ms. [Moorhead] "…is not
totally and permanently incapacitated for duty with the Ohio
State Highway Patrol."
{¶ 25} 13. In a letter dated January 25, 2013, relator was notified that the Health,
Wellness and Disability Committee ("HWD") had voted to recommend that the board
No. 13AP-575 10
deny her disability application and she had the opportunity to file a written request for
reconsideration.
{¶ 26} 14. By letter dated February 6, 2013, relator requested that the board
reconsider. In support of her request for reconsideration, relator attached outpatient
notes from Dr. Kang dated September 27, 2012, October 10 and 31, 2012, November 27,
2012 and January 23 and February 20, 2013.
{¶ 27} 15. Dr. Metz prepared a second memo for the record, dated March 8,
2013, and indicated that he had reviewed the additional evidence relator submitted and
still indicated that disability benefits should be denied.
{¶ 28} 16. By letter dated March 29, 2013, relator was notified that the HWD
committee had again voted to recommend that the board deny her disability application.
{¶ 29} 17. By letter dated April 25, 2013, relator was notified that the board had
voted to deny her disability retirement.
{¶ 30} 18. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 31} Relator argues that the evidence is clear that she cannot return to her job
due to the diagnosis of PTSD because she will not be able to investigate any serious
traffic accidents that may involve fatalities. Relator specifically points to the reports of
Drs. Leisgang and Benson-Blankenship, which were submitted before the commission
and asserts that these reports diagnosing her with PTSD clearly establish that she
suffered from PTSD. Relator argues that the board should have rejected Dr. Gallagher's
opinion because she had concluded that relator did not have PTSD.
{¶ 32} Finding that relator misunderstands the substance and meaning of the
reports submitted to the commission and how those reports are not germane to the
issue of whether or not she is entitled to a disability retirement, as more fully explained
hereinafter, the magistrate finds that relator's request for a writ of mandamus should be
denied.
{¶ 33} Mandamus is the appropriate remedy for relator to seek relief from an
adverse determination concerning disability retirement benefits or from other
retirement decisions. See State ex rel. Pontillo v. Pub. Emp. Retirement Sys. Bd., 98
Ohio St.3d 500, 2003-Ohio-2120; State ex rel. Moss v. Ohio State Hwy. Patrol
No. 13AP-575 11
Retirement Sys., 97 Ohio St.3d 198, 2002-Ohio-5806; State ex rel. Mallory v. Pub.
Emp. Retirement Bd., 82 Ohio St.3d 235 (1998); and State ex rel. McMaster v. School
Emp. Retirement Sys., 69 Ohio St.3d 130 (1994). In order to prevail, relator must
demonstrate that: (1) she has a clear legal right to the relief requested; (2) HPRB has a
clear legal duty to provide the relief requested; and (3) relator has no plain and adequate
remedy in the ordinary course of the law. State ex rel. Gill v. School Emp. Retirement
Sys. of Ohio, 121 Ohio St.3d 567, 2009-Ohio-1358.
{¶ 34} When there is conflicting medical evidence submitted to a public
retirement system board, the court cannot substitute its judgment for that of the board
and find an abuse of discretion. State ex rel. Bruce v. State Teachers Retirement Bd. of
Ohio, 153 Ohio App.3d 589, 2003-Ohio-4181 (10th Dist.). The term abuse of discretion
connotes a board decision that is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). Where there is some evidence in the
record to support the board's decision, the board has not abused its discretion. State ex
rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307.
In State ex rel. Thomas v. Pub. Emps. Retirement Sys., 10th Dist. No. 03AP-137, 2004-
Ohio-1403, this court has stated that, "[i]n order to constitute an abuse of discretion, the
court's decision must be so grossly inconsistent with fact or logic that it displays 'not the
exercise of reason but instead passion or bias.' "
{¶ 35} As noted previously, relator's main argument is that Dr. Gallagher did not
accept that she suffered from PTSD. Because Dr. Gallagher did not accept that she has
PTSD, relator contends that her report is contrary to all the other evidence in the file.
The majority of those reports were written and presented to the commission.
{¶ 36} In workers' compensation cases, once a claimant has their claim allowed
for a certain condition, the claim is always allowed for that condition and that condition
will appear as an allowed condition on every medical report and every order issued by
the commission. However, for example, a claimant can have their claim allowed for a
broken right arm. Obviously, if properly treated, the arm will heal and it is possible that
the claimant will not have any limitations due to that allowed condition. However, the
fact that the claimant is never bothered by the broken arm does not remove that
allowance from his claim.
No. 13AP-575 12
{¶ 37} In her report, Dr. Gallagher never stated that relator had not experienced
PTSD. Dr. Gallagher stated that relator's symptoms "are mild and do not meet the
diagnostic criteria for posttraumatic stress disorder at this time." All Dr. Gallagher is
saying is that, at the time she examined her, relator was not presenting with symptoms
of PTSD. That does not mean that Dr. Gallagher did not accept that relator had those
symptoms at one time nor did Dr. Gallagher imply that relator would never suffer
symptoms of PTSD in the future. Instead, Dr. Gallagher discussed relator's current
treatment regimen, her alcohol abuse, and the medications she was taking and indicated
that certain changes would be beneficial but that PTSD did not currently render her
incapable of performing her job duties.
{¶ 38} Finding that the report of Dr. Gallagher does constitute some evidence
upon which the board could rely to find that relator was not entitled to a disability
retirement, it is this magistrate's decision that this court should deny her request for a
writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
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).