State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys.

[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).