[Cite as Carnes v. Dept. of Taxation, 2019-Ohio-3244.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Jeffrey Carnes,                                          :

                 Appellant-Appellant,                    :
                                                                        No. 18AP-777
v.                                                       :          (C.P.C. No. 17CVF05-4443)

Ohio Department of Taxation,                             :         (REGULAR CALENDAR)

                 Appellee-Appellee.                      :




                                           D E C I S I O N

                                     Rendered on August 13, 2019


                 On brief: Haynes Kessler Myers & Postalakis, Inc., and
                 Marc E. Myers, for appellant. Argued: Marc E. Myers.

                 On brief: Dave Yost, Attorney General, and Matthew J.
                 Karam, for appellee. Argued: Matthew J. Karam.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

        {¶ 1} Appellant, Jeffrey Carnes, appeals a judgment of the Franklin County Court
of Common Pleas affirming the order of the State Personnel Board of Review ("Board") that
affirmed Carnes' involuntary disability separation. For the following reasons, we affirm
that judgment.
        {¶ 2} In July 2013, Carnes was employed as an Information Technologist 2 for
appellee, the Ohio Department of Taxation ("ODT"). Carnes' essential job duties included
programming databases, developing web pages, and troubleshooting IT problems. On
July 13, 2013, Carnes' supervisor met with Carnes to discuss the goals and expectations for
No. 18AP-777                                                                             2

Carnes' job performance in the upcoming year. During the meeting, Carnes stated that he
disagreed with each goal, but would only say, "It is what it is," when asked to explain how
and why he disagreed. (July 31, 2013 Letter from Charles Kumpar to J. Nick Marzella.)
       {¶ 3} Subsequently, Charles Kumpar, the ODT labor relations administrator,
questioned Carnes about his behavior during the meeting. According to Kumpar, Carnes
displayed difficulty in answering even basic questions. During conversation, Carnes would
reverse his answers midsentence, contradict himself, and stop responding and gaze silently
at the ceiling until re-engaged.
       {¶ 4} Concerned that Carnes' mental health was hindering his job performance,
Kumpar arranged for an evaluation of Carnes' psychological fitness for duty. J. Nick
Marzella, a psychologist, evaluated Carnes on August 5, 2013. Marzella administered to
Carnes two psychological tests: the Minnesota Multiphasic Personality Inventory-2 and
the Millon Clinical Multiaxial Inventory-II. Marzella also conducted an interview of Carnes
to assess his psychological status.
       {¶ 5} According to Marzella, Carnes was anxious throughout the interview.
Marzella reported that Carnes' "thoughts were scattered and at times tangential. He was
obstructive and non-revealing, subsequently showing little insight and poor judgment."
(Aug. 6, 2013 Psychological Fitness for Duty Evaluation at 4.)
       {¶ 6} Using the multiaxial approach to diagnosing set forth in the Diagnostic and
Statistical Manual of Mental Disorders IV ("DSM-IV"), Marzella did not diagnose Carnes
with any Axis I clinical disorders. However, under Axis II, Marzella diagnosed Carnes with
an obsessive-compulsive personality disorder with histrionic and narcissistic personality
features.
       {¶ 7} Additionally, Marzella opined:
              [Carnes'] obsessive-compulsive personality disorder will
              exacerbate in times of stress. His tendency to be overly
              concerned with irrelevancies fueled with his denial of personal
              issues and adequacy will make it difficult for him to stay on task
              with any degree of persistence and pace. Further, Mr. Carnes
              is obstructive and recalcitrant with regard to revealing
              information. Such behavior in the workplace is disruptive and
              will likely prevent him from effectively performing his job
              functions in an efficient and effective manner.

              ***
No. 18AP-777                                                                               3

               [Carnes'] ability to engage in rational thought that is goal
               directive and relevant is impaired. * * * There is every
               indication Mr. Carnes is sufficiently unreliable for full and
               unrestricted duty at this time. While his conflicts in the
               workplace need address[ing], he lacks the insight and
               judgment to rationally engage in a cogent process needed to
               resolve these issues.

Id. at 5-6. Given Carnes' mental state, Marzella concluded that, "based on a reasonable
degree of psychological certainty, [Carnes] does not currently offer adequate cognitive and
emotional faculties to perform the essential tasks and duties of his position as an
Informational Technologist 2 for the Ohio Department of Taxation." Id. at 6.
         {¶ 8} As a result of Marzella's conclusion, ODT placed Carnes on involuntary
disability separation pursuant to Ohio Adm.Code 123:1-30-01.           Carnes' involuntary
disability separation commenced on August 26, 2013.
         {¶ 9} Carnes appealed ODT's decision to the Board. On June 11, 2014, the parties
appeared before an administrative law judge for a hearing on Carnes' appeal. At the
hearing, ODT called Kumpar and Marzella as witnesses. Marzella testified that, during his
interview of Carnes, Carnes "was pretty obstructive and recalcitrant and evasive in terms of
revealing information, didn't really want to explore the reasons he was there or why he
thought he was there, and [Marzella] had a hard time getting straight answers from him."
(June 11, 2014 Tr. at 63.) Marzella also stated that "sometimes [Carnes'] answers were odd
and tangential in nature, had nothing to do with the question. And sometimes [he] felt
[Carnes] got really anxious and * * * just couldn't really address the content of what
[Marzella] was asking." Id. Ultimately, Marzella opined that he "felt that [Carnes] wanted
to work, but [he] didn't think [Carnes] had the * * * ability to perform adequately" based on
Carnes obstructiveness and inability to directly respond to the questions asked of him. Id.
at 73.
         {¶ 10} To rebut Marzella's expert report and testimony, Carnes introduced the
report and testimony of George Schulz, a psychologist who evaluated Carnes' psychological
fitness for duty in November 2013. Like Marzella, Schulz administered to Carnes two
psychological tests: the Minnesota Multiphasic Personality Inventory-2 and the Emotional
Quotient Inventory 2.0. Schulz also conducted a clinical interview of Carnes. According to
Schulz, during the interview, Carnes was cooperative and showed no symptoms of anxiety.
No. 18AP-777                                                                             4

Carnes spoke in a coherent and organized manner, and he showed no "fragmentation of
thought or loosening of associations." (Dec. 5, 2013 Psychological Evaluation – Fitness for
Duty Evaluation at 6.)
        {¶ 11} In his report, Schulz concluded that Carnes did not "evidence any presence
of a significant mental disorder" or "present any symptoms of depression, anxiety, mood
disorder, psychosis, a cognitive disorder, alcohol/substance disorder, or personality
disorder, or impulse control disorder." Id. at 11. Schulz, therefore, diagnosed Carnes with
no Axis I or Axis II disorders. Schulz opined that Carnes was mentally capable of
understanding and applying instructions in the work setting, completing the essential tasks
and duties of his position, and responding appropriately to coworkers, supervisors, and
work pressures. At the administrative hearing, Schulz reiterated his opinion that Carnes
was capable of performing his job duties. Schulz also stated that he believed he would have
reached the same conclusion he had evaluated Carnes in August, and not November, of
2013.
        {¶ 12} In addition to Schulz's report and testimony, Carnes also introduced into
evidence the report of Charles S. Burke, a psychiatrist who reviewed Marzella's report.
Burke became involved because Carnes applied for disability leave benefits with the
Department of Administrative Services ("DAS") and submitted Marzella's report as
evidence of his mental health condition. DAS requested that Burke, an independent third-
party physician, assess whether Marzella's report supported an award of disability leave
benefits.
        {¶ 13} Burke found no evidence that Carnes suffered from a disabling psychiatric
condition. In his report, Burke stated:
              [T]he information reviewed does not support that Mr. Carnes
              suffers from any Axis I psychiatric or psychological disorder. It
              is noted that evaluation has shown that Mr. Carnes does have a
              history of maladaptive personality features and defense
              mechanisms that are likely to be currently interfering with the
              performance of his job. It should be noted that these are
              lifelong patterns and are not considered a specific illness.
              There is no indication presented that Mr. Carnes is cognitively
              or emotionally impaired by any emotional illness to perform
              his job.

(Oct. 18, 2013 Letter from Burke to DAS.)
No. 18AP-777                                                                                5

       {¶ 14} Based on Burke's opinion, DAS found that Carnes had not substantiated the
cause, nature, and extent of a disabling illness, injury, or condition that prevented Carnes
from performing his job. Thus, DAS denied Carnes' application for disability leave benefits.
       {¶ 15} After the close of the hearing, the administrative law judge issued a
recommendation that the Board affirm ODT's decision to place Carnes on involuntary
disability leave. The Board adopted that recommendation, and Carnes then appealed the
Board's order to the trial court pursuant to R.C. 119.12. The trial court reversed the Board's
order and remanded the matter to the Board because the administrative law judge had not
considered all Carnes' evidence. We affirmed the trial court's judgment on appeal. Carnes
v. Ohio Dept. of Taxation, 10th Dist. No. 15AP-971, 2016-Ohio-3428.
       {¶ 16} On remand, the administrative law judge heard further argument from both
parties. In a second report and recommendation, the administrative law judge again
recommended that the Board affirm ODT's decision.                 The Board adopted the
recommendation and affirmed Carnes' involuntary disability separation in an order issued
May 2, 2017.
       {¶ 17} Carnes appealed the May 2, 2017 order to the trial court. In a decision and
entry dated September 13, 2018, the trial court affirmed the Board's order.
       {¶ 18} Carnes now appeals the September 13, 2018 judgment, and he assigns the
following errors:
               1. The Court of Common Pleas abused its discretion when it
               found that the Order of the State Personnel Board of Review
               affirming Appellant Jeffrey Carnes' Involuntary Disability
               Separation was supported by reliable, probative, and
               substantial evidence and in accordance with law.

               2. The Court of Common Pleas erred as a matter of law when
               it concluded that the medical standard of review to receive
               Disability Leave Benefits from the Ohio Department of
               Administrative Services differed from the medical standard of
               review to place a State of Ohio classified employee on
               Involuntary Disability Separation.

       {¶ 19} Carnes appealed the Board's order to the common pleas court under R.C.
119.12. Pursuant to R.C. 119.12(M), when a common pleas court reviews an order of an
administrative agency, it must consider the entire record to determine if the agency's order
is supported by reliable, probative, and substantial evidence and is in accordance with law.
No. 18AP-777                                                                                 6

To be "reliable," evidence must be dependable and true within a reasonable probability.
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). To be
"probative," evidence must be relevant or, in other words, tend to prove the issue in
question. Id. To be "substantial," evidence must have importance and value. Id.
       {¶ 20} In conducting a review of the administrative record, a common pleas court
must "appraise all the evidence as to the credibility of the witnesses, the probative character
of the evidence, and the weight thereof." Andrews v. Bd. of Liquor Control, 164 Ohio St.
275, 280 (1955). During its appraisal of the evidence, a common pleas court must give due
deference to the administrative resolution of evidentiary conflicts, but the findings of the
agency are not conclusive. Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d
466, 470 (1993). Due deference is owed to an agency's fact-finding "[w]hen the evidence
consists of conflicting testimony of approximately equal weight" because the administrative
body, "as the fact-finder, had the opportunity to observe the demeanor of the witnesses and
weigh their credibility." Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).
However, " '[w]here the court, in its appraisal of the evidence, determines that there exist
legally significant reasons for discrediting certain evidence relied upon by the
administrative body, and necessary to its determination, the court may reverse, vacate, or
modify the administrative order.' " Ohio Historical Soc. at 470, quoting Conrad at 111.
       {¶ 21} An appellate court's review of an administrative order is more limited than
that of a common pleas court reviewing the same order. Bartchy v. State Bd. of Edn., 120
Ohio St.3d 205, 2008-Ohio-4826, ¶ 41. Instead of appraising the weight of the evidence,
an appellate court determines whether the common pleas court abused its discretion in its
examination of the record for reliable, probative, and substantial evidence. Pons v. Ohio
State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Absent an abuse of discretion, an appellate
court must affirm the common plea court's judgment, even if the appellate court would have
arrived at a different conclusion than that of the common pleas court. Bartchy at ¶ 42.
       {¶ 22} In determining whether an administrative order is in accordance with law, a
common pleas court must undertake its reviewing task completely independently. Ohio
Historical Soc. at 471. Likewise, an appellate court's review on issues of law is plenary.
Bartchy at ¶ 43.
No. 18AP-777                                                                                 7

       {¶ 23} Here, by his first assignment of error, Carnes argues that the trial court
improperly reviewed the evidence regarding whether he had met the criteria for involuntary
disability separation in August 2013. Carnes asserts that: (1) the trial court wrongly
accepted the Board's resolution of evidentiary conflicts as conclusive, and (2) the trial court
erred in considering Kumpar's description of Carnes' behavior when determining whether
Carnes suffered from a disabling condition.
       {¶ 24} A state employer may impose an involuntary disability separation when an
employee "is unable to perform the essential job duties of [his or her] position due to a
disabling illness, injury or condition." Ohio Adm.Code 123:1-30-01(A). Here, the Board
relied on Marzella's expert opinion to conclude that, in August 2013, Carnes had a disabling
condition that prevented him from performing the essential job duties of the Information
Technologist 2 position.
       {¶ 25} In reviewing the Board's decision, the trial court had to parse three conflicting
expert opinions regarding Carnes' mental state and capabilities. Marzella diagnosed
Carnes with an obsessive-compulsive personality disorder with histrionic and narcissistic
personality features, and he opined that this disorder rendered Carnes unable to fulfill his
job duties. Schulz diagnosed Carnes with no mental disorders, and he opined that Carnes
could perform the duties of his position. Burke accepted Marzella's diagnosis of Carnes,
but he opined that Carnes' personality disorder did not constitute a psychiatric illness or
condition.
       {¶ 26} The trial court reviewed each of the three expert reports and Marzella's and
Schulz's testimony. Essentially, the trial court concluded that the Board had sound reasons
for finding Marzella's opinion the most credible. The trial court rejected Burke's opinion
because (1) he only conducted a paper review and did not evaluate Carnes in person, and
(2) both Marzella and Schulz disagreed with Burke's opinion that a personality disorder
could not constitute a disabling psychiatric condition. The trial court rejected Schulz's
opinion because Schulz conducted his evaluation of Carnes in November 2013,
approximately three months after ODT found Carnes disabled.
       {¶ 27} On appeal, Carnes attacks the conclusion that Marzella provided the most
credible and persuasive evidence regarding Carnes' mental state and job fitness. First,
Carnes maintains that Marzella did not explain why he concluded that Carnes was
No. 18AP-777                                                                                8

incapable of performing his job duties and Marzella only conducted a cursory evaluation of
Carnes. Based upon our review of Marzella's report and testimony, we do not agree with
Carnes' characterization of Marzella's evaluation and diagnosis of Carnes. In his report and
testimony, Marzella explained his reasons for finding Carnes' personality disorder made
him unfit for duty. Moreover, Marzella denied Carnes' contention that his interview of
Carnes lasted only 28 minutes.
       {¶ 28} Second, Carnes contends that the three-month lapse between the imposition
of the involuntary disability separation and Schulz's evaluation does not matter. We do not
share Carnes' assessment of the importance of the three-month gap. As the trial court
recognized, the behaviors associated with Carnes' personality disorder may have abated in
the three months, thus resulting in the improved evaluation of Carnes' mental health.
Consequently, Marzella's evaluation, conducted two weeks before ODT imposed the
involuntary disability separation, would better reflect Carnes' mental condition at the point
of imposition.
       {¶ 29} Finally, regardless of whether we agree with Carnes' appraisal of the
evidence, none of the reasons Carnes raises for rejecting the trial court's determination
would cause us to find the trial court abused its discretion. The trial court had before it
conflicting evidence of approximately the same weight, and legitimate reasons existed for
designating any one of the three opinions the most credible and persuasive. The trial court
reviewed the Board's reasoning for relying on Marzella's opinion, and, finding that
reasoning logical, the court deferred to the Board's resolution of the evidentiary conflict.
The trial court, therefore, properly applied its standard of review. Moreover, the trial court
did not abuse its discretion in finding Marzella's report and testimony constituted reliable,
probative, and substantial evidence that supported the Board's decision.
       {¶ 30} Carnes next argues that the trial court erred in considering Kumpar's
description of Carnes' behavior in determining whether Carnes suffered from a disabling
condition that precluded him from performing his job duties. We disagree.
       {¶ 31} During the administrative hearing, the administrative law judge admitted
into evidence a July 31, 2013 letter from Kumpar to Marzella. In the letter, Kumpar
recounted the unusual behavior that prompted Kumpar to arrange a psychological
No. 18AP-777                                                                               9

evaluation of Carnes. Kumpar detailed Carnes' interaction with his supervisor during the
July 13, 2013 meeting, as well as Carnes' disjointed communication style.
       {¶ 32} The trial court found Kumpar's description of Carnes' behavior minimally
relevant because Carnes did not challenge that description. Carnes, therefore, did not
dispute that, in July 2013, he appeared unable or unwilling to interact or communicate
normally with his colleagues. Kumpar's depiction of Carnes' behavior corresponds with the
behavior Marzella observed during his interview of Carnes. Marzella based his opinion, in
part, on the information in July 31, 2013 letter and his interview of Carnes. Consequently,
Kumpar's description both forms and confirms the factual basis for Marzella's opinion that
Carnes could not perform his job duties due to his mental condition. We thus find no abuse
of discretion in the trial court's consideration of the July 31, 2013 letter in determining
whether Carnes was psychologically fit to perform his job.
       {¶ 33} In sum, we reject each of the arguments Carnes raises under his first
assignment of error. Accordingly, we overrule that assignment of error.
       {¶ 34} By Carnes' second assignment of error, he argues that the trial court erred in
concluding that the standard for placing an employee on involuntary disability separation
differs from the standard for granting disability leave benefits. Review of the trial court's
decision reveals that the trial court did not reach the conclusion that Carnes challenges as
erroneous. Rather, the trial court recognized the correlation between the two standards
when it determined that DAS' finding that Carnes did not have a disabling condition
contradicted the Board's finding that Carnes suffered from just such a disability.
       {¶ 35} The trial court found the divergence in the agencies' decisions troubling, but
understandable. As the trial court explained, a difference in the governing procedural rules
resulted in the agencies reaching different outcomes. Under Ohio Adm.Code 123:1-33-04,
"[w]here a medical question is at issue," DAS must "obtain a medical opinion from an
independent third party" and "the decision of the third party shall be binding." Burke, the
independent third party retained by DAS, concluded that Marzella's opinion did not
provide evidence that Carnes had a psychiatric disability that prevented Carnes from
performing his job duties. In compliance with Ohio Adm.Code 123:1-33-04, DAS did not
weigh Marzella's opinion against Burke's opinion. Rather, it simply accepted Burke's
opinion as controlling and denied Carnes disability leave benefits.
No. 18AP-777                                                                           10

      {¶ 36} Unlike DAS, the Board weighed the expert opinions and found Marzella's the
most credible and persuasive. Nothing in DAS' decision denying Carnes disability leave
benefits prohibited the Board from reaching its decision. Accordingly, we overrule Carnes'
second assignment of error.
      {¶ 37} For the foregoing reasons, we overrule Carnes' two assignments of error, and
we affirm the judgment of the Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.

                          SADLER and DORRIAN, JJ., concur.
