[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Marmaduke v. Ohio Police & Fire Pension Fund, Slip Opinion No. 2016-Ohio-5550.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-5550
    THE STATE EX REL. MARMADUKE, APPELLANT, v. OHIO POLICE & FIRE
                           PENSION FUND ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Marmaduke v. Ohio Police & Fire Pension Fund,
                          Slip Opinion No. 2016-Ohio-5550.]
Writ of mandamus—Disability benefit—Some evidence in the record supported
        decision of pension fund and its board—Judgment affirmed.
     (No. 2015-1278—Submitted April 5, 2015—Decided August 30, 2016.)
      APPEAL from the Court of Appeals for Franklin County, No. 14AP-489,
                                      2015-Ohio-2491.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the Tenth District Court of Appeals’ denial of a writ of
mandamus to appellant, Robert G. Marmaduke II. Marmaduke seeks a writ ordering
appellees, the Ohio Police & Fire Pension Fund (“OP&F”) and its board of trustees,
                             SUPREME COURT OF OHIO




to vacate the board’s order awarding him a permanent-partial disability benefit and
to enter an order awarding him a permanent-total disability benefit.
        {¶ 2} There is some evidence in the record that Marmaduke was able to
perform the duties of a gainful occupation despite his disabling, duty-related
conditions. Therefore, the court of appeals was correct in affirming the board’s
determination that he was entitled to a permanent-partial, rather than permanent-
total, disability benefit.
                                      Facts
OP&F Disability Retirement
        {¶ 3} The OP&F is run by a nine-member board of trustees that considers
applications for disability benefits from members. R.C. 742.03(B) and 742.38;
Ohio Adm.Code 742-3-05. After a member files an application and medical and
vocational reports are provided, the board forwards the material to the Disability
Evaluation Panel (“DEP”). Ohio Adm.Code 742-3-05(A)(13) and (C)(6). The
DEP consists of three members of the board and at least two nonvoting members:
one must be a physician, and the other must be a vocational expert. Ohio Adm.Code
742-3-05(A)(13). The DEP evaluates the application based on the American
Medical Association’s Guides to the Evaluation of Permanent Impairment and
other objective sources. Ohio Adm.Code 742-3-05(A)(9) and (B)(2). The DEP
experts examine the applicant and issue reports on their findings. After reviewing
all the materials, the DEP makes a recommendation to the OP&F board. Ohio
Adm.Code 742-3-05(B)(5) and (C)(6). The board makes an independent initial
determination based on review of the record or may request additional supporting
materials and another examination of the applicant. Ohio Adm.Code 742-3-
05(C)(6).
        {¶ 4} The applicant may accept, waive, or appeal the board’s initial
determination. Ohio Adm.Code 742-3-05(D) and (E). If the applicant appeals, he
or she must file new supporting materials within 60 days of filing the notice of




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appeal. Ohio Adm.Code 742-3-05(E)(3). Based on this new supporting material,
OP&F may request that the applicant undergo another physical or vocational
examination or that the experts provide addenda to their earlier reports. Ohio
Adm.Code 742-3-05(E)(4). The resulting materials are sent to the DEP experts,
who make updated recommendations to the board.            Ohio Adm.Code 742-3-
05(E)(5). The applicant is entitled to a hearing on the appeal. Id.
       {¶ 5} The board will then affirm or modify the initial determination or order
additional examination or documentation. Ohio Adm.Code 742-3-05(E)(6). The
decision on appeal is final. Ohio Adm.Code 742-3-05(E)(6)(d). The applicant may
accept or waive any award and continue working, or file a mandamus action. Ohio
Adm.Code 742-3-05(E)(7).
Marmaduke’s Background, Injury, and Application
       {¶ 6} Marmaduke has a bachelor’s degree in biology and some graduate-
school education. He worked at various jobs before joining the Akron fire
department. Marmaduke was a medic with the department for five years and then
became a fire inspector. He was promoted to lieutenant in 2001 and captain in
2006. He became a safety-inspector instructor in 2007 and continued in that
capacity until he retired in 2011.
       {¶ 7} On January 28, 2009, Marmaduke was shoveling snow at work when
he suddenly experienced extreme pain on the right side of his head. At the
emergency room, doctors determined that he had an acute brain bleed. He was
hospitalized and later spent time in rehabilitation. Marmaduke was diagnosed with
right temporal intracerebral hemorrhage. This condition resulted in decreased
coordination and dexterity, problems with fine motor skills in the left hand, and a
left visual-field defect. In June 2009, he had surgery to correct an arterial venous
malformation (an abnormal connection between an artery and a vein).
       {¶ 8} Marmaduke returned to work half time in November 2009 and was
employed full time by January 2010 through a transitional work-assignment




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program.    In November 2010, Marmaduke was terminated “due to lack of
significant progress” in having his medical restrictions relaxed.          However,
Marmaduke believed that the termination had been motivated by the fire chief’s
dislike of him. Marmaduke filed a grievance and was reinstated with back pay. He
returned to work in May 2011 but retired in November of that year.
       {¶ 9} Marmaduke filed a disability-benefit application with OP&F in April
2012. The application set forth various conditions, including the visual-field
deficit. The DEP found that Marmaduke had a 31 per cent disabling whole-person
impairment and a 57 per cent non-disabling whole-person impairment. Finding that
Marmaduke was permanently and partially disabled, the DEP recommended
awarding Marmaduke a permanent-partial disability benefit under R.C.
742.38(D)(2).
       {¶ 10} Marmaduke appealed, claiming that the visual-field deficit renders
him totally and permanently disabled. However, the DEP considered the views of
the board’s medical and vocational experts, who agreed with the recommendation
of the DEP. None of the original examining physicians significantly changed their
reports, and the board reaffirmed its award of a permanent-partial disability benefit.
       {¶ 11} Marmaduke filed this mandamus action in the Tenth District Court
of Appeals, asserting that he had been wrongfully denied a permanent-total
disability benefit. A magistrate found that Marmaduke had not demonstrated that
his disability was total and concluded that the board had not abused its discretion
by granting him the permanent-partial disability benefit.            The magistrate
recommended that the court deny the writ.
       {¶ 12} Over Marmaduke’s objections, the court of appeals agreed with the
magistrate’s recommendation and held that because some evidence supported the
board’s decision, the board had not abused its discretion in awarding Marmaduke a
permanent-partial disability retirement benefit. The court adopted the magistrate’s




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                                January Term, 2016




legal conclusions and denied the writ. Marmaduke appealed to this court as of right,
and we affirm.
                                      Analysis
Request for Oral Argument
       {¶ 13} Marmaduke has requested oral argument. Oral argument in a direct
appeal is discretionary. S.Ct.Prac.R. 17.02(A). In exercising this discretion, this
court considers whether the case involves a matter of great public importance,
complex issues of law or fact, a substantial constitutional issue, or a conflict among
the courts of appeals. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-
Ohio-4563, 31 N.E.3d 608, ¶ 16, citing Appenzeller v. Miller, 136 Ohio St.3d 378,
2013-Ohio-3719, 996 N.E.2d 919, ¶ 4.
       {¶ 14} This case involves a straightforward application of the standard for
abuse of discretion by the OP&F board. We therefore deny the request.
Mandamus
       {¶ 15} To be entitled to a writ of mandamus, Marmaduke must establish a
clear legal right to the requested relief, a clear legal duty on the part of the OP&F
to provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. Marmaduke must prove that he is entitled to the writ by clear and convincing
evidence. Id. at ¶ 13.
       {¶ 16} “ ‘Because the final OP&F board decision is not appealable,
mandamus is available to correct an abuse of discretion by the board in denying
disability benefits.’ ” State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund,
131 Ohio St. 3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 2, quoting State ex rel.
Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62, 2011-Ohio-4677,
955 N.E.2d 963, ¶ 28. See also Ohio Adm.Code 742-3-05(E)(7)(c). Therefore,
Marmaduke has brought an appropriate cause of action to challenge the board’s
decision.




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                             SUPREME COURT OF OHIO




       {¶ 17} However, to prevail, Marmaduke must show that he has a clear legal
right to a permanent-total disability benefit rather than to a permanent-partial
disability benefit. “A clear legal right to the requested relief in mandamus exists
‘where the board abuses its discretion by entering an order which is not supported
by “some evidence.” ’ ” Kolcinko at ¶ 2, quoting Kinsey v. Bd. of Trustees of Police
& Firemen’s Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225, 551
N.E.2d 989 (1990).
       {¶ 18} OP&F does not dispute that Marmaduke’s disability is duty-related
and that the disability is permanent. The only point of contention appears to be
whether the disability mandates a permanent-total or permanent-partial disability
benefit.
       {¶ 19} Under the appropriate statutory and rule definitions, Marmaduke is
eligible for a permanent-partial disability, but not for a permanent-total disability
benefit.


               “Totally disabled” means a member of the fund is unable to
       perform the duties of any gainful occupation for which the member
       is reasonably fitted by training, experience, and accomplishments.
       Absolute helplessness is not a prerequisite of being totally disabled.


               “Permanently disabled” means a condition of disability from
       which there is no present indication of recovery.


R.C. 742.38 (D).


               “Partial disability” shall mean a condition of disability with
       respect to which the board finds the applicant is prevented from




                                         6
                                January Term, 2016




       performing the member’s official police or fire duties and member’s
       earnings capacity is impaired.


Ohio Admin.Code 742-3-05(A)(8).
       {¶ 20} Thus, the question is whether Marmaduke can work at all and
whether he can return to his original job. The parties dispute whether Marmaduke’s
visual-field defect prevents him from performing his original job duties. For
example, Marmaduke’s attending physician, Dr. Hayek, specifically commented
that Marmaduke’s vision loss “prevents him from driving in Emergency Mode
(Lights & sirens) which prevents him from returning to his previous job description
without restrictions.” OP&F argues that Marmaduke does not need to drive
emergency vehicles to do his job as fire chief. That job description provides that
“[a]n employee in this class commands a battalion of fire companies: directs the
maintenance and operation of fire stations: the inspection, testing, and maintenance
of company apparatus and equipment; and directs all work of the companies in
emergency operations until relieved by a superior officer.”
       {¶ 21} However, when Marmaduke actually went back to work, he
participated in a light-duty/transitional work program and did not return to his
position as fire chief. He was terminated from this light-duty work, although he
challenged the termination and was later reinstated. There is no evidence in the
record that he returned to his original job as a fire chief rather than the light-duty
job. Indeed, the department terminated him from the light-duty job specifically
“due to a lack of significant progress.” In other words, his employer apparently did
not think him capable of performing the job duties of his position as fire chief.
       {¶ 22} Marmaduke is capable of performing the duties of gainful
employment, as he was in a light duty/transitional position for several months. He
therefore is not totally disabled under R.C. 742.38(D). The OP&F board did not




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abuse its discretion in finding Marmaduke partially disabled under Ohio Adm.
Code 742-3-05(A)(8).
        {¶ 23} We agree with the conclusion of the court of appeals that there is
some evidence in the record that Marmaduke could perform the duties of “any
gainful occupation for which [he] is reasonably fitted by training, experience, and
accomplishments.” R.C. 742.38(D).
Motions
        {¶ 24} Since final briefing, Marmaduke, acting pro se, has filed a motion
for judicial notice in support of appellant’s brief, and two amended versions of the
same motion. OP&F has filed a motion to strike these motions.
        {¶ 25} The motions for judicial notice appear to contain additional
argument and evidence regarding the case. S.Ct.Prac.R. 16.08 provides that “merit
briefs shall not be supplemented.” To the extent that Marmaduke’s arguments in
the supplement are based on new legal authority, he could have filed “a citation to
the relevant authority,” but he “shall not file additional argument.” Id.
        {¶ 26} We therefore grant the motion to strike and deny the motions for
judicial notice.
                                    Conclusion
        {¶ 27} The record includes some evidence that Marmaduke is capable of
performing the duties of gainful employment. Therefore, it was not an abuse of
discretion for OP&F to award him a permanent-partial disability benefit under R.C.
742.38(D)(2).
                                                                 Judgment affirmed.
        O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               _________________
        Robert G. Marmaduke, II, pro se.




                                          8
                               January Term, 2016




       Michael DeWine, Attorney General, and John J. Danish and Mary Therese
J. Bridge, Assistant Attorneys General, for appellees.
                               _________________




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