[Cite as State ex rel. Lowe v. Ohio Pub. Emps. Retirement Sys., 2014-Ohio-4773.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Uneek V. Lowe,                 :

                 Relator,                            :                        No. 13AP-627

v.                                                   :                (REGULAR CALENDAR)

[Ohio Public Employees Retirement                    :
System],
                                                     :
                 Respondent.
                                                     :


                                            D E C I S I O N

                                    Rendered on October 28, 2014


                 Uneek V. Lowe, pro se.

                 Michael DeWine, Attorney General, and Matthew T. Green,
                 for respondent.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Relator, Uneek V. Lowe, brought this original action requesting a writ of
mandamus ordering respondent, Ohio Public Employees Retirement System ("OPERS"),
to vacate its decision terminating her disability benefits and to enter a decision reinstating
disability benefits.
I. Procedural History
        {¶ 2} Under Civ.R. 53 and Section (M), Loc.R. 13 of the Tenth Appellate District,
this matter was referred to a magistrate who issued a decision that is appended to this
decision. The magistrate determined: (1) the OPERS Board of Trustees ("board") was
not required to determine whether the alleged disabling medical conditions prevent
No. 13AP-627                                                                            2


relator from performing her recent position at Fifth Third Bank; (2) none of the medical
reports need be eliminated from evidentiary consideration due to an alleged failure of the
examining physician to show sufficient knowledge of relator's job duties at the Hamilton
County Department of Job and Family Services ("HCDJFS"); and (3) there is some
evidence in the record supporting the board's presumed determination based upon
pertinent R.C. 145.362 examinations, that relator is no longer physically and
psychologically unable to perform her former position at HCDJFS upon which her
disability benefit was premised. Accordingly, the magistrate determined the requested
writ should be denied.
II. Objections
       {¶ 3} Relator filed objections to the magistrate's decision.        These were not
separately numbered, but rather contained in a somewhat free flowing 21-page document.
From our review of this document, relator raises the following issues:
               1. Respondent abused its discretion by using the wrong job
               description for relator's private part-time job with Fifth Third
               Bank.

               2. Respondent did not take into account relator's public job
               duties with HCDJFS when it terminated her disability
               benefits.

               3. Respondent failed to consider relator's Attention Deficit
               Hyperactivity Disorder ("ADHD"), her Arnold Chiari
               Malformation, and her need for accommodations when it
               terminated her disability benefits.

               4. The magistrate erred in finding there was some evidence
               that relator is no longer physically and psychologically unable
               to perform her former position at HCDJFS.

III. Private Sector Job Description
       {¶ 4} While receiving disability benefits from OPERS and the Social Security
Administration, relator took a part-time position with Fifth Third Bank embossing credit
cards. (Magistrate's decision, 6.) Some time after she took the job, relator submitted a
form for an employment review to determine whether the part-time job would result in
the termination of benefits. OPERS' third-party administrator, Managed Medical Review
No. 13AP-627                                                                               3


Organization ("MMro"), conducted an assessment of the job duties of relator's last public
position as a Program Technician 2 for HCDJFS and her part-time position for Fifth Third
Bank. The MMro's assessment overlapped relator's annual medical review.
       {¶ 5} The MMro found similarities between the work activities in each job.
Relator has identified mistakes in the MMro's assessment of her work with the private
sector employer. For example, the assessment states: "Helps w/tutoring of the students. *
* * Organizes all group meetings, activities and special trips." (R. 276.) Relator is correct
that this part of the MMro's assessment describing the part-time position at Fifth Third
Bank is in error.
       {¶ 6} Nevertheless, the argument is without merit. The part-time job description
is not relevant to the core issue in this case which is "whether the disability benefit
recipient is no longer physically and mentally incapable of resuming the service from
which the recipient was found disabled." See R.C. 145.362. The part-time job description
is not related to relator's annual medical review for a disability determination. The
medical doctors were asked to base their review on her public employment job
description. Neither the medical doctors nor the board relied on the reemployment
assessment when deciding whether relator was permanently disabled. Therefore, even if
there were errors in the MMro's assessment, any such error is harmless as it does not
relate to the issue of whether relator is capable of resuming her public service.
IV. Public Job Description
       {¶ 7} With respect to her public sector job with HCDJFS, relator contends that
OPERS failed to take into account her public job duties when it terminated her disability
benefits.
       {¶ 8} Our independent review shows that the record is replete with references to
relator's public sector job. The job description is set forth in full in the magistrate's
decision. The doctors who conducted relator's medical assessments stated they were
familiar with her responsibilities at HCDJFS, reviewed her job description, and in several
instances, recounted in detail relator's history at HCDJFS. The MMro's assessment also
sets forth a correct description of relator's duties at HCDJFS.
       {¶ 9} There is no merit to this objection.
V. ADHD, Arnold Chiari Malformation, and the need for accommodations
No. 13AP-627                                                                                4


       {¶ 10} Relator argues there was no evidence that her Attention Deficit Disorder
was viewed or considered as part of the decision to terminate her disability benefits.
Again, the record belies this assertion. The following quotes are a sample of the
documentation of relator's diagnosis of ADD or ADHD.             Robert Krikorian, PhD,
conducted a neuropsychological evaluation of relator in 2011 and wrote further in 2012
commenting on the findings of the neuropsychological evaluation.         He stated: "Our
evaluation indicated that you have deficits of attention and executive ability, among
others." (R. 475.) He also stated, "you described in particular being overwhelmed and
ineffective when working as a technician for Hamilton County Job and Family Services.
You cited the volume of work as a major difficulty in that position. Your experiences with
that job would be consistent with the findings on our evaluation of attention and executive
impairment." (R. 475.) He also states: "Ms. Lowe grew up with developmental cognitive
disorder affecting attention and executive ability, which can be characterized as Attention
Deficit Disorder." (R. 471.)
       {¶ 11} In January 2012, Leroy Vickers, M.D., wrote: "Ms. Lowe has chronic
fibromyalgia, ADHD, some memory loss and at this time Ms. Lowe indicates, and I agree
with her that she is permanently disabled but could return to work with Hamilton County
with accommodations." (R. 468.)
       {¶ 12} In relator's examination by Michael Miller, M.D., he noted that "ADHD
treatment is quite successful when it comes to the Adderall." (R. 411.) D. Ann Middaugh,
M.D., M.S., noted that Adderall helped relator to concentrate, but that she stopped taking
it until she started the job with Fifth Third Bank. (R. 418.) Thus, it appears that while
relator had been diagnosed with ADHD, she was able to function successfully when she
used the medication Adderall.
       {¶ 13} Contrary to relator's assertion, ADD and/or ADHD were viewed and
considered as part of the decision to terminate benefits. This argument is without merit.
       {¶ 14} Relator also argues that her Arnold Chiari Malformation was not considered
in the decision to terminate her disability benefits. Again, numerous references to the
medical evidence in the record noted D. Ann Middaugh, M.D., M.S., wrote, "[s]he has an
asymptomatic Chiari-I malformation discovered by MRI scan.           This is a congenital
condition in which the cerebellar tonsils descend into the upper cervical canal
No. 13AP-627                                                                                5


anatomically. She has no physical correlation for these findings." (R. 421.) Other reports
indicated "very mild symptomology," (R. 331.) "minimally, if at all, symptomatic," (R.
340.) and that her malformation was "thought to be minimally symptomatic by previous
neurological evaluation." (R. 357.)
       {¶ 15} Relator contends that she is unable to resume her prior public service
because HCDJFS refused her request for reasonable accommodations.
       {¶ 16} Relator   has   conflated   her   claim   against   HCDJFS      for   disability
discrimination under the Americans with Disabilities Act ("ADA") with her claim that she
is unable to resume her public service. The ADA defines "disability" as: (A) a physical or
mental impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment. 42 U.S.C. 12102(2). The standard used by the board in this case is "whether
the disability benefit recipient is no longer physically and mentally incapable of resuming
the service from which the recipient was found disabled." See R.C. 145.362.
       {¶ 17} The standard used to determine whether relator is entitled to a writ of
mandamus is whether there is some evidence to support the board's decision.
       {¶ 18} Relator's claim that she is disabled because she was denied reasonable
accommodations is not well-taken.
VI. Some Evidence
       {¶ 19} In order to obtain a writ compelling the board to vacate its decision to
terminate her disability benefits, relator must show that the board abused its discretion by
entering an order that is not supported by some evidence. State ex rel. Marchiano v.
School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 20-21; Kinsey v. Bd.
of Trustees of Police and Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d
224, 225 (1990); State ex rel. Schaengold v. Pub. Emps. Retirement Sys., 114 Ohio St.3d
147, 2007-Ohio-3760, ¶ 19.
       {¶ 20} Six different medical doctors determined that relator is not disabled from
her most recent public position with HCDJFS: Michael Miller, M.D.; D. Ann Middaugh,
M.D.; Andrew Smith, M.D.; Mark Reynolds, M.D.; Jeffrey Deitch, D.O.; and Maurice
Mast, M.D. That is some evidence to support the board's decision to terminate relator's
disability benefits.
No. 13AP-627                                                                          6


VII. Conclusion
      {¶ 21} Based on our independent review under Civ.R. 53, we find the magistrate
properly determined the relevant facts and applied the salient law to them. Accordingly,
we adopt the magistrate's decision as our own, including the findings of fact and
conclusions of law contained in it. Therefore, we overrule relator's objections and deny
the requested writ of mandamus.
                                                     Objections overruled; writ denied.

                        SADLER, P.J., and CONNOR, J., concur.
                               _________________
No. 13AP-627                                                                              7




                                   APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
Uneek V. Lowe,
                                             :
               Relator,
                                             :
v.
                                             :                     No. 13AP-627
[Ohio Public Employees Retirement
 System],                                     :              (REGULAR CALENDAR)

               Respondent.                   :




                          MAGISTRATE'S DECISION

                                Rendered on July 15, 2014



               Uneek V. Lowe, pro se.

               Michael DeWine, Attorney General, and Matthew T. Green,
               for respondent.


                                     IN MANDAMUS


       {¶ 22} In this original action, relator, Uneek V. Lowe, requests a writ of mandamus
ordering respondent, Ohio Public Employees Retirement System ("OPERS"), to vacate its
June 20, 2012 decision terminating disability benefits, and to enter a decision reinstating
disability benefits. That is, relator requests that the writ order the Ohio Public Employees
No. 13AP-627                                                                              8


Retirement Board ("board") to vacate its June 20, 2012 decision and to enter a decision
reinstating disability benefits.
Findings of Fact:
       {¶ 23} 1. In May 2006, relator filed a disability benefit application on a form
provided by OPERS. Relator had been employed by the Hamilton County Department of
Job and Family Services ("HCDJFS"). Her position title was "CPA Specialist." Her
classification title was "Program Technician 2."
       {¶ 24} 2. In May 2006, HCDJFS completed a form provided by OPERS captioned
"Report of Employer for Disability Applicant."        HCDJFS also provided a "position
description" indicating that relator's job required her to perform the following tasks:
               60% [One] Determines eligibility for Healthy Start, Healthy
               Families and the Expedited Medicaid Programs. Conducts
               applications processing and gathers necessary information to
               make determination of program eligibility. Obtains
               necessary verifications required for program eligibility,
               follow-up with consumers by phone to clarify and verify
               eligibility. Completes face-to-face interviews with walk-in
               consumers. Inputs all documentation into computer system.

               20% [Two] Issues correspondence and completes follow-up.
               Maintains necessary records and data; responds to requests
               for information and all phone calls, e-mails, and faxes in a
               timely manner.

               10% [Three] Maintains awareness of all assistance programs
               and services offered by the agency. Enrolls and refers
               consumers for HMO enrollment process. Processes and
               completes special reports when necessary.

               5% [Four] Completes statistical reports of program/work
               activity.

               OTHER DUTIES AND RESPONSIBILITIES:

               3% [Five] Attends meetings, training and community
               presentations as required.

               2% [Six] Performs other related duties as assigned.

               POSITIONS SUPERVISED:
No. 13AP-627                                                                               9


               None

       {¶ 25} 3. On May 10, 2006, attending physician and psychiatrist Jonathan
Bernfeld, M.D., completed a "Report of Attending Physician for Disability Applicant" on a
form provided by OPERS.
       {¶ 26} Section three of the form requests that the attending physician report his
findings.
       {¶ 27} For his diagnoses, Dr. Bernfeld wrote: "Chronic Major Depression" and
"Chronic Pain."
       {¶ 28} For the symptoms, Dr. Bernfeld wrote: "[I]rritability, pain, low energy,
poor concentration, anxiety."
       {¶ 29} For the prognosis, Dr. Bernfeld wrote: "Arnold Chiari malformation [plus]
syrinx causing chronic pain. Also fibromyalgia."
       {¶ 30} On the form, Dr. Bernfeld indicated by his mark that relator "is * * *
considered to be permanently disabled."
       {¶ 31} 4. On July 17, 2006, at the request of OPERS, relator was examined by
psychiatrist William Beatty, M.D. In his three-page narrative report, Dr. Beatty states:
       {¶ 32} Ms. Lowe states that she has essentially four conditions:

               [One] Attention Deficit Disorder with Hyperactivity
               [Two] Arnold-Chiari malformation
               [Three] Chronic Fatigue Syndrome
               [Four] Fibromyalgia.

               It is difficult to discern the exact boundaries of these
               diagnoses in describing her symptoms. She does experience
               chronic fatigue and does have generalized musculoskeletal
               pains nearly continuously. She also claims to have ADD and
               to be in need of accommodation for this in regard to work
               load.

               ***

               For some reason Ms. Lowe has some dysphoric moods and
               apparently has had some major depressive episodes in her
               life leading to hospitalizations. This coupled with her
               volatility may suggest a "soft" Bipolar Disorder of a chronic
No. 13AP-627                                                                          10


               nature. This is a relatively minor factor in her disability
               compared to the Arnold-Chiari malformation with its
               possibly causing or contributing phenomena of fatigue and
               chronic pain. ADD is a further issue. She has multiple
               stressors in her life including her son's behavioral problems,
               her finances, her single status and the possibility of
               litigation. She also states that she has lost her insurance
               including her life insurance and her car has been
               repossessed. She rarely has a good day but does occasionally
               enjoy her hobbies of sewing and making purses. She feels
               that her fatigue is the most debilitating of her problems and
               this is what really prevents her from returning to work. * * *

               It appears to me that Ms. Lowe has a legitimate, severe
               neurologic problem the surgical treatment for which is far
               from satisfactory. The exact relationship of this condition to
               her other illnesses is somewhat unclear to me but perhaps a
               neurologist or neurosurgeon could clarify this. Dr. Bernfeld
               implied that several of her symptoms were due to the
               Arnold-Chiari malformation. I would be inclined to accept
               this and consider that Ms. Uneek Lowe is permanently
               disabled mentally and physically for the performance of duty
               and should be entitled to an OPERS Disability benefit. It may
               be that OPERS would elect to seek statements from either
               Ms. Lowe's neurologist or neurosurgeon as to whether her
               Arnold-Chiari malformation is thought to be producing the
               fatigue and chronic pain. This also may be determined to be
               unnecessary.

       {¶ 33} 5. On August 18, 2006, at the request of OPERS, relator was examined by
Marvin H. Rorick, M.D., who specializes in neurology. In his three-page narrative report,
Dr. Rorick stated:
               Disability claimed by reason of:

               Inability to continue her type of work responsibility as she
               has done previously in the welfare office. The patient is a
               Medicaid eligibility technician. She stopped doing this type
               of work in 2004. * * *

               Diagnosis:
               [One] Chiari Malformation Type I with cervical syrinx.
               [Two] Chronic tension headache.
               [Three] Major depression.
               [Four] Attention deficit hyperactivity syndrome.
No. 13AP-627                                                                         11



               ***

               Past History:
               Notable for Attention deficit hyperactivity syndrome.
               The patient has apparently not received direct treatment for
               this disorder but has been treated with antidepressant
               medication in the past. She reports two hospitalizations for
               depression, the most recent of which occurred in the late
               1990's.

               She also reports that she had a Bell's palsy in 1999 with
               almost total recurrent function to the right side of the face.

               ***

               From the stand point of the patient's Arnold chiari
               malformation type I and cervical syrinx, the patient has very
               mild symptomatology and has been advised not to have
               occipital decompressive surgery. The patient does have
               chronic headaches which maybe [sic] due to other causes. In
               addition, she has a significant underlying depression which
               is certainly worsened by her chronic daily pain.
               Unfortunately, it is impossible to predict the patient's
               reliability in a work place.

               She has already been disabled for greater than two years and
               appears unlikely to be able to resume that type of work
               activity that she previously performed.

               For the above reasons, the patient is presumed to be
               permanently disabled for the performance of duty and
               should be entitled to a disability benefit.

      {¶ 34} 6. By letter dated September 20, 2006, OPERS informed relator that the
board had approved her disability application retroactive to February 1, 2005.
      {¶ 35} 7. In February 2008, May 2009, and October 2010, the board approved the
continuation of benefits. Each time, relator was informed that continued receipt of
benefits was conditioned upon her seeking psychiatric treatment.
      {¶ 36} 8. By letters dated October 3, 2011, OPERS informed relator that she was
scheduled for two medical examinations—one by psychiatrist Michael E. Miller, M.D., and
No. 13AP-627                                                                        12


the other by Deborah Ann Middaugh, M.D., who specializes in internal medicine and
occupation and environmental medicine.
       {¶ 37} 9. On October 17, 2011, relator was examined by Dr. Miller. In his eight-
page narrative report, Dr. Miller states:
               EMPLOYMENT HISTORY

               * * * She worked at Hamilton County Job and Family
               Services between 2000 and 2004, going out in 2004 on
               disability and being fired in 2005.

               ***

               I reviewed Ms. Lowe's job description for Hamilton County
               Department of Job and Family Services.

               ***

               DIAGNOSES

               Axis I —      Major Depressive Disorder, Recurrent, Mild
                             (296.31)

                             Posttraumatic Stress Disorder (309.81)

               Axis II —     Deferred

               Axis III —    Chiari   Malformation,      Thalasemia,     r/o
                             Fibromyalgia

               Axis IV —     Occupational problems

               Axis V —      62

               ***

               Ms. Lowe is currently working 16 hours per week. She
               embosses credit cards for 5/3 Bank between 3:00 p.m. and
               7:00 p.m. This is described as a low stress position. She said
               she is able to concentrate and handle this job without any
               difficulty. She said that it is enjoyable and she works alone.
               Uneek took this job because she was in need of a greater
               income as her two disability incomes were considered to be
               insufficient. The employee told me that Social Security
               allows her to have a nine-month trial period and if she makes
No. 13AP-627                                                                     13


               over $1,000.00 per month, she may lose her benefits (but
               could regain them if she does not continue employment). She
               also told me that OPERS was "okay" with this arrangement,
               as it did not include public service type employment.

               ***

               Specifically, I do not feel her recurrent depression is
               disabling. The employee has had a very good response to
               Wellbutrin and voluntarily returned to work because of her
               financial needs. She is performing well at her position (16
               hours per week) and there is no reason to assume that this
               could not move to a full time, 40 hour per week, role. She is
               not clinically disabled. I see no reason that her previous type
               of work would be contraindicated.

               ***

               She is receiving a combination of psychotherapy plus
               medication management to contain a depressive disorder. As
               is the case with recurrent depressions, she has periodic
               relapses. These are not considered to be work-prohibitive,
               however. The vast majority of people with depressive
               disorders are able to work * * *.

      {¶ 38} 10. On October 20, 2011, relator was examined by Dr. Middaugh. In her
five-page narrative report, Dr. Middaugh states:
               Narrative Medical History: Ms. Lowe states that she has
               been on disability through OPERS from her job as a program
               technician for Hamilton County for the last 5 years. * * *

               Ms. Lowe was employed for a total of 4 years and 7 months
               for Hamilton County and was terminated in 2005. She was
               responsible for assessing eligibility for Medicaid and food
               stamps. She states that her job became increasingly busy and
               stressful. She had to interview clients, review their resources
               and income and refer paperwork for medical assessments. In
               addition to regular paperwork and scheduled appointments
               she was required to see walk-ins and states they were not
               allowed to wait more than 10 minutes. She felt she couldn't
               handle her case load and because of underlying ADHD asked
               her supervisor for accommodations. She states that she was
               then terminated after revealing that she had ADHD.

               ***
No. 13AP-627                                                                     14



               Medical Record Review: Medical records provided are
               quite limited. There is a job description for Hamilton County
               Department of Job and Family Services for the CPA
               Specialist Program Technician 2. This is consistent with her
               job description, conducting applications, processing and
               gathering necessary information for eligibility regarding
               Healthy Start, Healthy Families and expedited Medicaid
               programs.

               ***

               Discussion: Uneek Lowe is a 55 year old woman with
               multiple somatic complaints of pain who has suffered for
               years with depression and also carries a diagnosis of ADHD.
               She appears to be under appropriate psychiatric treatment.
               She is reporting multiple somatic complaints and medical
               problems. She is status post Bell's palsy by history. She has
               an asymptomatic Chiari-I malformation discovered by MRI
               scan. This is a congenital condition in which the cerebellar
               tonsils descend into the upper cervical canal anatomically.
               She has no physical correlation for these findings. She gives a
               history of a spinal cord syrinx which is also asymptomatic.
               Ms. Lowe does have degenerative disc disease in her neck
               and is status post successful C5-6 anterior cervical fusion
               and has no neurological deficit and a normal examination.
               Ms. Lowe also has complaints of fibromyalgia syndrome with
               a normal examination and no trigger points. She has left
               shoulder complaints, a history of thalassemia and GI
               complaints.

               From the physical standpoint I see no disabling medical
               condition.

               Answers to Questions:

               ***

               [Two] Per the OPERS definition of permanent disability, Ms.
               Lowe is not physically disabled from performing her
               occupation as a public employee. I see no physical condition
               that would interfere with any of her job related activities.

               [Three] I do not anticipate any significant physical change in
               her conditions within the next 12 months.
No. 13AP-627                                                                            15


               [Four] I do not find any disabling physical diagnoses.

               [Five] There is no objective medical evidence from a physical
               standpoint to support disability.

               [Six] Ms. Lowe is receiving routine medical care for her
               physical complaints.

               [Seven] Her subjective complaints and symptoms far
               outweigh any objective clinical findings and are consistent
               with her psychiatric diagnosis of depression.

               [Eight] Her observed activities and behavior also do not
               correlate with objective clinical findings noting that she has a
               normal examination despite her multiple somatic
               complaints.

       {¶ 39} 11. On November 29, 2011, Managed Medical Review Organization
("MMro"), the third-party administrator of OPERS' disability program, issued a report
recommending termination of relator's disability benefit. The November 29, 2011 report
indicates that the reports of Drs. Miller and Middaugh, as well as earlier medical reports,
were reviewed.
       {¶ 40} 12. The record contains a one-page OPERS document captioned "Medical
Advisor Board Recommendation (F-33)."           The document, dated December 5, 2011,
indicates that the "medical advisor" is "asmith."          The document further states:
"Disapprove - Found No Longer Disabled, Terminate Benefit."
       {¶ 41} 13. By letter dated December 15, 2011, OPERS informed relator:
               The Ohio PERS Retirement Board reviewed your disability
               benefit file including all medical documentation submitted in
               connection with your re-evaluation at the December 14, 2011
               board meeting.

               Based    upon    all  the    medical    information      and
               recommendations, the Ohio PERS medical consultants and
               the Board concluded that you are no longer considered to be
               permanently disabled from the performance of duty as a
               Program Technician 2. Therefore, your disability benefit will
               be terminated.

               You have a right to appeal the Board's termination of your
               disability benefit. If you wish to appeal this action, you may
No. 13AP-627                                                                       16


               supply additional objective medical evidence, at your
               expense, to us as the basis of your appeal.

               ***

               After you have submitted your additional medical evidence
               your information will be reviewed by our third party
               administrator Managed Medical Review Organization
               (MMro). MMro will evaluate your condition, which may
               require you to have an in-person medical examination with
               an independent medical examiner.

       {¶ 42} 14. Earlier, on October 4, 2011, relator completed a form provided by
OPERS captioned "Employment Review for a Disability Benefit Recipient." (DR-2). The
form instructs as follows:
               In order for OPERS to make an assessment of your re-
               employment request, please complete this form in its
               entirety and as accurately as possible.

               Employment after commencement of a disability benefit may
               impact your eligibility for that benefit. Disability benefit
               recipients who return to public employment are subject to
               immediate benefit termination.

       {¶ 43} On the form, relator indicated she is employed at Fifth Third Bank at
Cincinnati, Ohio, through a temporary services company known as "Adecco." She listed
the title of her position as: "Credit Card Production."
       {¶ 44} The form asks:     "Has your attending physician approved this form of
employment." Relator responded to the query by marking the "yes" box. Thereunder,
relator wrote in her own hand:
               So long as it remains part-time. I work from 3 pm-7 pm. I
               work with a few employees in a quiet environment that isn't
               very distracting, or pressure [and] light duty. This works
               okay with having [ADHD], depression [and] chronic fatigue.
               I am able to rest during the day before work [and] that gives
               me enough energy to do this 4 [hour] job 4 days a [week].

       {¶ 45} 15. MMro compared relator's previous job at HCDJFS with her new job at
Fifth Third Bank. On November 14, 2011, MMro issued a report concluding that relator's
No. 13AP-627                                                                       17


request for approval of her employment at Fifth Third Bank should be denied because of
similarities of that job and the HCDJFS job.
       {¶ 46} 16. The record contains an OPERS document dated November 17, 2011 and
captioned "Medical Advisor Board Recommendation." Therein, the document indicates
that "MMro" has advised: "Similarities Found. Recommend Early Annual Review."
       {¶ 47} 17. By letter dated November 17, 2011, OPERS informed relator:
               We reviewed the Employment Review for a Disability
               Benefit Recipient form (DR-2) that you submitted.

               Our third party administrator Managed Medical Review
               Organization (MMro) performed a vocational assessment of
               the position(s) you have been and/or are considering
               undertaking in comparison to your last public employment
               position. MMro has determined there is similarity between
               the position(s) you have been and/or considering
               undertaking and your last public employment position from
               which you were found to be disabled.

               As part of your current annual review, MMro will evaluate
               your condition which may require you to have an in-person
               medical examination.

               Once the evaluation process is complete, a recommendation
               as to whether or not you continue to be permanently
               disabled from the duties of your last public employment
               position will be made to the Ohio PERS Retirement Board.
               You will be notified by letter once official action has been
               taken by the Board on your case.

(Emphasis sic.)


       {¶ 48} 18. Relator timely appealed the December 14, 2011 board decision.
       {¶ 49} 19. On February 8, 2012, attending physician Zhijun George Guo, M.D.,
completed an "Attending Physician Statement" on a form provided by OPERS. On the
form, Dr. Guo listed the following "disabling condition(s)":
               [One] Chiari I Malformation
               [Two] Chronic Migraine/Fibromyalgia
               [Three] Depression
               [Four] Syringohydre-Myelia
No. 13AP-627                                                                            18


      {¶ 50} Dr. Guo marked a "no" box in response to the query: "Is member expected
to return to work with their public employer?"
      {¶ 51} 20. On January 6, 2012, at relator's own request, she was evaluated by
Leroy Vickers, M.D., who wrote:
               OPERS has recently determined that you are not disabled to
               perform duty as a Program Technician II, a position
               previously held by you before you became disabled in 2005.

               Your recent medical history includes increasing symptoms
               including left shoulder pain and weakness, numbness to
               tongue, off balance, and dizziness. You were hospitalized at
               Jewish Hosp. Oct. 14, 2011, with neurosurgical/neurological
               consultation at that time. The work up showed increasing
               growth of a previously diagnosed Arnold-Chiari
               malformation/syrinx. This is a congenital lesion. No surgery
               is advised due to risks involved. Neurologists DR. Rorick and
               DR. GUO.

               This patient has had depression/emotional problems due to
               above situation and is currently on medication for this. Her
               psychiatrist is Dr. Khosla (CCHB), Connie Moody is her
               counselor.

               Ms. Lowe has chronic fibromyalgia, ADHD, some memory
               loss and at this time, Ms. Lowe indicates, and I agree with
               her that she is permanently disabled but could return to
               work with Hamilton County with accommodations.

      {¶ 52} 21. During September, October, and November 2011, relator underwent a
neuropsychological evaluation performed by Robert Krikorian, Ph.D.              Relator was
referred to Dr. Krikorian by Dr. Guo. In his four-page narrative report, Dr. Krikorian
opines:
               The neuropsychological studies indicated specific cognitive
               impairments involving aspects of attention and executive
               [sic] ability with secondary effects on memory. There also
               was mild phonological processing inefficiency. While the
               described deficits are mild, they have functional implications
               and are consistent with the occupational inefficiency and
               memory difficulty. In addition, the executive [sic]
               impairment almost certainly has contributed to her
               emotional disturbance because the organization and
No. 13AP-627                                                                      19


               inhibitory control impairments lead to less effective
               emotional coping as described above.

       {¶ 53} 22. On January 10, 2012, Dr. Krikorian wrote to relator:

               Our evaluation indicated that you have deficits of attention
               and executive ability, among others, that affect your ability to
               register information from the environment, integrate
               complex material, and organize and executive [sic] effective
               problem-solving strategies. In addition, these deficits will
               affect memory function in certain contexts by interfering
               with memory encoding and retrieval processes.

               In the context of that evaluation you provided information
               about problems you have had in certain work environments
               and you described in particular being overwhelmed and
               ineffective when working as a technician for Hamilton
               County Job and Family Services. You cited the volume of
               work as a major difficulty in that position. Your experiences
               with that job would be consistent with the findings on our
               evaluation of attention and executive [sic] impairment.
               Indeed, our report contained recommendations concerning
               strategies that might help with organization. Other
               approaches and accommodations that might be useful
               generally but especially in such a job would include limiting
               work load and/or working part-time, increasing training and
               on-the-job supervision and assistance, frequent monitoring
               of responsibilities by a supervisor or co-worker in order to
               insure that [tasks] are completed in a timely way. It would be
               expected that without such accommodations, you will
               experience performance difficulties and stress as you did in
               the past.

       {¶ 54} 23. By letter dated April 26, 2012, relator was informed that she was
scheduled for a psychiatric evaluation to be performed by Mark Reynolds, M.D.
       {¶ 55} 24. On May 11, 2012, relator was evaluated by Dr. Reynolds. In his ten-
page narrative report, Dr. Reynolds states:
               MEDICAL RECORD REVIEW

               Position description for a CPA Specialist with the Hamilton
               County Department of Job and Family Services.

               ***
No. 13AP-627                                                                   20


               IDENTIFYING INFORMATION

               Uneek Lowe presents as a 56-year-old divorced biracial
               female employed previously by Hamilton County Job and
               Family Services, working in eligibility determinations. She
               indicates having been employed in that position for
               approximately four years and seven months. She has not
               worked in that position since 2005. She indicates that she
               was on medical leave and was terminated while on medical
               leave.

               PSYCHIATRIC HISTORY

               ***

               The claimant indicates she eventually received disability
               under OPERS. While on disability and receiving social
               security benefits, she took a part time job involving feeding
               credit cards into a machine. She indicates taking this job in
               order to make extra money due to her basement flooding.
               She states although this position required much less
               decision-making and attention skills as opposed to her
               previous position, it was determined to be similar to her
               previous position, and as such her OPERS disability was
               stopped. She indicates having had to stop working in this
               position in March due to a strain of her rotator cuff. She
               indicates she has since tried to find other jobs and has had
               difficulty due to medical concerns.

               ***

               MENTAL STATUS EXAM

               The claimant presented as an alert and oriented, well-
               developed, well-nourished biracial female in no apparent
               physical distress. Her speech was of a mildly increased rate,
               normal rhythm and prosody. Her affect was stable, mildly
               restricted, appropriate to content and predominantly
               depressed and irritable mood. Thought form was linear and
               goal-directed. Thought content was without evidence of
               hallucination, delusion, ideas of reference, thought
               broadcasting, thought insertion or current homicidal
               ideation. She admitted to intermittent suicidal ideation
               without plan or intent. Her memory for immediate, recent
               and remote events was good. Her concentration abilities in
               this setting were unimpaired.
No. 13AP-627                                                                     21



               ASSESSMENT

               Axis I: 296.89      Bipolar Disorder, type II with rapid
                                   cycling

                          300.0    Anxiety Disorder NOS (including history
                                   of Posttraumatic Stress Disorder)

               Axis II: 799.9       Deferred

               Axis III:           Arnold        Chiari       malformation,
                                   thalassemia, fibromyalgia, rotator cuff
                                   tears bilaterally, herniated discs (level
                                   unspecified), arthritis and restrictive
                                   airway disease

               Axis IV:            Multiple medical problems, chronic
                                   pain, occupational difficulty

               Axis V:             GAF 60 (current)

               FINDINGS AND RECOMMENDATIONS

               ***

               Based upon the definition of disability under OPERS, it
               would be my opinion that the claimant cannot currently be
               presumed permanently disabled from a psychiatric
               standpoint based upon her psychiatric symptomatology
               alone. It appears that the claimant has a bipolar condition
               and this has been indicated to her by psychiatrists
               previously; however, she has resisted trials of mood
               stabilizing medication. It is likely that with a trial of mood
               stabilizing medication she could experience a significant
               decrease in the extent of her psychiatric symptomatology. In
               addition, even without ideal treatments including mood
               stabilizing medications, her recent neuropsychological
               evaluation by Dr. [Krikorian] indicates an ability to return to
               her previous position of employment. It would be
               recommended that the claimant not only engage in further
               psychiatric evaluation and initiation of trial of mood
               stabilizing medications but that she also institute treatment
               as recommend[ed] by Dr. [Krikorian] and also
               recommendations by Dr. [Krikorian] involving her treatment
               environment [currently] be[ing] entertained.
No. 13AP-627                                                                           22



               ***

               It would be my expectation that flares [sic] in the claimant's
               fibromyalgia would intensify the extent of her psychiatric
               symptomatology and vice versa. Based upon the current level
               of the claimant's psychiatric symptomatology, I do not opine
               that she is unable to return to work.

      {¶ 56} 25. On May 30, 2012, as an employee of MMro, Jeffrey Deitch, D.O.,
completed a review of medical reports of record. In his two-page report, Dr. Deitch
recommended termination of relator's disability benefit. Dr. Deitch did not examine
relator, but only reviewed medical records previously noted herein.
      {¶ 57} 26. By letter dated June 21, 2012, OPERS informed relator:
               The Ohio PERS Retirement Board reviewed your disability
               benefit file and recent reports of medical re-evaluation at the
               June 20, 2012 meeting.

               Based    upon    all   the   medical   information      and
               recommendations, the Ohio PERS medical consultants and
               the board concluded that you are not considered to be
               permanently disabled from the performance of duty as a
               Program Technician 2. As a result, the Board upheld its
               previous action to terminate your disability benefits. This
               decision is final.

(Emphasis sic.)

      {¶ 58} 27. On July 19, 2013, relator, Uneek V. Lowe, filed this mandamus action.
Conclusions of Law:
      {¶ 59} Three main issues are presented:         (1) whether the board abused its
discretion in failing to determine whether the alleged disabling medical conditions
prevent relator from performing her recent position at Fifth Third Bank, (2) whether any
of the medical reports must be eliminated from evidentiary consideration because the
examining physicians allegedly failed to show sufficient knowledge of relator's job duties
at HCDJFS, and (3) whether there is some evidence in the record supporting the board's
presumed determination that, based upon pertinent R.C. 145.362 examinations reported
by board-appointed examining physicians, relator is no longer physically and
No. 13AP-627                                                                              23


psychologically unable to perform her former position at HCDJFS upon which her
disability benefit was premised.
       {¶ 60} The magistrate finds: (1) the board was not required to determine whether
the alleged disabling medical conditions prevent relator from performing her recent
position at Fifth Third Bank, (2) none of the medical reports need be eliminated from
evidentiary consideration due to an alleged failure of the examining physician to show
sufficient knowledge of relator's job duties at HCDJFS, and (3) there is some evidence in
the record supporting the board's presumed determination based upon pertinent R.C.
145.362 examinations, that relator is no longer physically and psychologically unable to
perform her former position at HCDJFS upon which her disability benefit was premised.
       {¶ 61} Accordingly, as more fully explained below, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus.
       {¶ 62} Preliminarily, it can be observed that, with its December 14, 2011 initial
decision and its June 20, 2012 final decision terminating relator's disability benefit, the
board chose not to specifically cite to the medical evidence supporting its decisions.
       {¶ 63} That is, in its December 15, 2011 letter, OPERS simply informed relator:
               Based    upon    all  the    medical    information      and
               recommendations, the Ohio PERS medical consultants and
               the Board concluded that you are no longer considered to be
               permanently disabled from the performance of duty as a
               Program Technician 2. Therefore, your disability benefit will
               be terminated.

       {¶ 64} Immediately prior to its December 14, 2011 initial decision, at the request of
OPERS, relator underwent a psychiatric evaluation performed by Dr. Miller on October
17, 2011.   Also at the request of OPERS, relator underwent a physical examination
performed by Dr. Middaugh on October 20, 2011.
       {¶ 65} As earlier noted, Dr. Miller opined: "She is not clinically disabled. I see no
reason that her previous type of work would be contraindicated." Also, Dr. Miller opined
that relator's "recurrent depressions * * * are not considered to be work-prohibitive."
       {¶ 66} As earlier noted, Dr. Middaugh opined:
               Per the OPERS definition of permanent disability, Ms. Lowe
               is not physically disabled from performing her occupation as
No. 13AP-627                                                                          24


               a public employee. I see no physical condition that would
               interfere with any of her job related activities.

       {¶ 67} Presumably, in its December 14, 2011 initial determination to terminate the
disability benefit, the board relied upon the reports of Drs. Miller and Middaugh.
       {¶ 68} Immediately prior to its June 21, 2012 final decision, at the request of
OPERS, relator underwent a psychiatric examination performed by Dr. Reynolds on
May 11, 2012. In his report, Dr. Reynolds opined:
               Based upon the definition of disability under OPERS, it
               would be my opinion that the claimant cannot currently be
               presumed permanently disabled from a psychiatric
               standpoint based upon her psychiatric symptomatology
               alone.

       {¶ 69} Relator did not undergo another physical examination at the request of
OPERS following the board's initial decision to terminate disability benefits. That is,
following the board's December 14, 2011 initial decision, OPERS only had relator
examined by a psychiatrist. It is not clear why OPERS did not have relator physically
examined following relator's administrative appeal of the board's December 14, 2011
initial decision.
                                       Basic Law
       {¶ 70} Effective September 16, 1998, R.C. 145.362 stated:
               The public employees retirement board shall require any
               disability benefit recipient to undergo an annual medical
               examination, except that the board may waive the medical
               examination if the board's physician or physicians certify
               that the recipient's disability is ongoing.

               On completion of the examination by an examining
               physician or physicians selected by the board, the physician
               or physicians shall report and certify to the board whether
               the disability benefit recipient is no longer physically and
               mentally incapable of resuming the service from which the
               recipient was found disabled. If the board concurs in the
               report that the disability benefit recipient is no longer
               incapable, the payment of the disability benefit shall be
               terminated * * *.

               ***
No. 13AP-627                                                                        25



               Each disability benefit recipient shall file with the board an
               annual statement of earnings, current medical information
               on the recipient's condition, and any other information
               required in rules adopted by the board. The board may waive
               the requirement that a disability benefit recipient file an
               annual statement of earnings or current medical information
               if the board's physician certifies that the recipient's disability
               is ongoing.

      {¶ 71} Effective January 7, 2013, R.C. 145.362 states:

               The public employees retirement board shall require any
               disability benefit recipient to undergo an annual medical
               examination, except that the board may waive the medical
               examination if the board's physician or physicians certify
               that the recipient's disability is ongoing or for any other
               reason specified in rules adopted by the board.

               ***

               On completion of the examination by an examining
               physician or physicians selected by the board, the physician
               or physicians shall report and certify to the board whether
               the disability benefit recipient meets the applicable standard
               for termination of a disability benefit.

               (A) Regardless of when the disability occurred, if the
               recipient's application for a disability benefit was received by
               the system before the effective date of this amendment, * * *
               the standard for termination is that the recipient is no longer
               physically and mentally incapable of resuming the service
               from which the recipient was found disabled.

               ***

               (B)(3) * * * If the board concurs in the report that the
               disability benefit recipient meets the applicable standard for
               termination of a disability benefit, the payment of the
               disability benefit shall be terminated.

               Each disability benefit recipient shall file with the board an
               annual statement of earnings, current medical information
               on the recipient's condition, and any other information
               required in rules adopted by the board. The board may waive
               the requirement that a disability benefit recipient file an
No. 13AP-627                                                                        26


               annual statement of earnings or current medical information
               if the board's physician certifies that the recipient's disability
               is ongoing.

      {¶ 72} Former Ohio Adm.Code 145-2-21 stated:

               (A) For the purpose of sections 145.35, 145.36, 145.361, and
               145.37 of the Revised Code and PERS rules:

               (1) "Disability" means presumed permanent mental or
               physical incapacity for the performance of a member's
               present duty or similar service that is the result of a disabling
               condition that has occurred or has increased since an
               individual became a member.

               ***

               (6) "Examining physician" means a physician appointed by
               the PERS board.

               (B) A member shall make application for a disability benefit
               on a form provided by the retirement system.

               (1) Consideration of a member's application shall be limited
               to the disabling condition(s) listed in the application or
               disclosed by the examination of the physician(s) selected by
               the retirement system and the report of attending
               physician(s) on a form provided by the retirement system.

               (2) Upon receipt of a completed application, report of
               employer, report of attending physician(s), report of
               examining physician(s) and, if available, reports of
               employment physical examinations, the retirement system's
               medical consultant(s) shall review all such documentation
               and prepare a recommendation to the public employees
               retirement board.

               ***

               (C) The board at its regular meetings shall review disability
               applications and the written recommendations of its medical
               examiners and medical consultant. The determination by the
               board on any application is final.

               ***
No. 13AP-627                                                                             27


               (D) The retirement board may require a member to submit
               to a subsequent medical examination by a physician selected
               by the retirement board provided the medical consultant
               recommends such examination in order to evaluate
               continued eligibility for disability benefits.

       {¶ 73} Currently, Ohio Adm.Code 145-2-21, effective September 16, 2013, states:

               (A) For the purpose of sections 145.35, 145.36, 145.361,
               145.362, and 145.37 of the Revised Code and agency 145 of
               the Administrative Code:

               (1) "Disability" means the following:

               (a) At the time of application, a presumed permanent mental
               or physical incapacity for the performance of a member's
               present or most recent public duty that is the result of a
               disabling condition that has occurred or has increased since
               an individual became a member.

               (b) At the time of medical examination pursuant to section
               145.362 of the Revised Code:

               (i) For a disability benefit recipient whose application for
               disability benefits was received before January 7, 2013, and
               for a disability benefit recipient whose application was
               received on or after January 7, 2013, * * * a disabling
               condition that renders the member mentally or physically
               incapable of resuming the service from which the member
               was found disabled.

       {¶ 74} " '[M]andamus is an 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 Public Emps. Retirements Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12,
quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-
Ohio-2219, ¶ 14.
       {¶ 75} "The determination of whether a retirement-system member is entitled to
the continued receipt of disability-retirement benefits is within the exclusive authority of
the retirement board, R.C. 145.362, and the board's denial of an appeal from the
termination of these benefits is final and not subject to appeal." Cydrus at ¶ 12. "Because
No. 13AP-627                                                                               28


there is no right to appeal the retirement board's decision terminating disability-
retirement benefits, mandamus is an appropriate remedy." Id. at ¶ 13.
       {¶ 76} 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. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-
3760, ¶ 19; State ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139,
2009-Ohio-307, ¶ 20-21; Kinsey v. Bd. of Trustees of Police & Firemen's Disability &
Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990).
       {¶ 77} It is perhaps worth noting that, in Cydrus, the Supreme Court of Ohio held
that the retirement board did not abuse its discretion by relying on Dr. Steiman's medical
report in terminating the disability benefit. The Supreme Court found that Dr. Steiman's
report "constituted sufficient evidence to support the board's determination." Id. at ¶ 31.
The Supreme Court did not use the term "some evidence" in upholding the evidentiary
value of Dr. Steiman's report.
       {¶ 78} Because there is no statutory provision that it do so, OPERS is not required
to provide an explanation for its decision or cite to the evidence that supports its decision.
Id. The lack of such statutory provision does not violate Ohio's separation-of-powers
doctrine. Id. at ¶ 22-24. Also, the benefit recipient is not denied procedural due process
when OPERS fails to identify the evidence it relied upon and to briefly explain its reasons
for terminating the disability benefit. Id. at ¶ 25-27.
                                         First Issue
       {¶ 79} Regarding the first issue, former R.C. 145.362 provides that the board shall
determine "whether the disability benefit recipient is no longer physically and mentally
incapable of resuming the service from which the recipient was found disabled." R.C.
145.362 currently provides that "the standard for termination is that the recipient is no
longer physically and mentally incapable of resuming the service from which the recipient
was found disabled."
       {¶ 80} Former Ohio Adm.Code 145-2-21(A)(1) defines "disability" as the
"presumed permanent mental or physical incapacity for the performance of a member's
present duty or similar service that is the result of a disabling condition * * *."
No. 13AP-627                                                                           29


       {¶ 81} Currently, Ohio Adm.Code 145-2-21, effective September 16, 2013, provides
that "disability" means "a presumed permanent mental or physical incapacity for the
performance of a member's present or most recent public duty that is the result of a
disabling condition * * *."
       {¶ 82} As earlier noted, on October 4, 2011, relator completed an OPERS form on
which she reported her employment at Fifth Third Bank through Adecco performing
credit card production. On the form, relator reported that she worked there part-time
including four hours per day. She indicated no medical difficulty performing the job.
Thereafter, MMro found similarities between the job at Fifth Third Bank and the job at
HCDJFS, and recommended action by OPERS.
       {¶ 83} Based on the forgoing scenario, relator argues:
               Why didn't OPERS consider Lowe's last "similar" job when it
               had her evaluated by its physicians? Here again, Ohio
               Adm.Code 145-2-21 (A) defines disability for PERs [sic]
               purpose. It explicitly states that the focus is on "the
               member's present duty or similar service." Therefore basic
               fairness says that consideration should have been given to
               Lowe's last position. Therefore, OPERS and its Third Party
               Management Company abused its discretion by not
               demonstrating the essential job duties of the Credit Card
               Production position. See Adm.Code 145-2-21(A).

(Relator's brief, 33-34.)

       {¶ 84} The magistrate disagrees with relator's argument.
       {¶ 85} To begin, relator invokes former Ohio Adm.Code 145-2-21(A)(1)'s reference
to "a member's present duty or similar service" and particularly notes the phrase "similar
service." However, relator ignores the provision of R.C. 145.362 indicating that the
relevant inquiry is whether relator is "incapable of resuming the service from which the
recipient was found disabled."
       {¶ 86} Relator does not contend that her Fifth Third Bank job involves "the service
from which [she] was found disabled." Relator does not contend that her job at HCDJFS
is not the job from which she was found disabled. Relator cannot simply ignore the
statutory language, and then give the code provision her own interpretation that is
inconsistent with the statute.
No. 13AP-627                                                                            30


       {¶ 87} Moreover, to the extent that former Ohio Adm.Code 145-2-21(A)(1)'s
definition of "disability" lacked clarity in this regard, current Ohio Adm.Code 145-2-
21(A)(1) makes clear that it is the member's public duty that is at issue in the
determination. Undisputedly, the job at Fifth Third Bank did not involve relator's public
duty. In short, relator's first argument lacks merit.
                                       Second Issue
       {¶ 88} As earlier noted, the second issue is whether any of the medical reports
must be eliminated from evidentiary consideration because the examining physicians
allegedly failed to show sufficient knowledge of relator's job duties at HCDJFS.
       {¶ 89} The magistrate finds State ex rel. Clark v. Indus. Comm., 72 Ohio St.3d 377
(1995), a case involving workers' compensation, to be helpful, if not instructive, on the
issue here.
       {¶ 90} In Clark, at 379, the court applied a legal principle from State ex rel.
Braswell v. Indus. Comm., 25 Ohio St.3d 61, 63 (1986):
               [A] physician conducting a medical examination, where the
               claimant seeks temporary total disability benefits, should, in
               most cases, possess some knowledge of the physical
               requirements associated with the former position of
               employment[.][W]e deem it unnecessary for the physician to
               trace, in detail, every physical movement necessitated during
               the average workday.

       {¶ 91} The issue in Clark was whether Dr. Dobrowski's report satisfied Braswell.
In his report, Dr. Dobrowski opined that the claimant "could return to his previous
position as a construction worker." Id. at 378. He also noted that the claimant was injured
"pushing an air compressor." Id. Concluding that Dr. Dobrowski's report satisfied
Braswell, the Clark court states, at 380:
               Claimant responds that "construction worker" is too general
               a term, claiming that it encompasses many different duties
               entailing many different levels of physical exertion. While
               this may be true, there is no evidence that Dr. Dobrowski
               misperceived claimant's duties to the detriment of any
               interested party. There is no indication that Dr. Dobrowski
               based his conclusion on the erroneous belief that claimant's
               occupation consisted of sedentary, light or medium work. To
               the contrary, Dr. Dobrowski noted that claimant was injured
No. 13AP-627                                                                              31


               while pushing an air compressor-a heavy piece of machinery.
               Accordingly, we find that the report was "some evidence"
               supporting the commission's decision.

        {¶ 92} In State ex rel. Kelly v. State Teachers Retirement Sys., 10th Dist. No. 11AP-
527, 2012-Ohio-4613, this court, adopting the decision of its magistrate, held that the
medical reports of Elizabeth Mease, M.D. and Christopher Mabee, M.D., support the
decision of the retirement system to terminate the disability benefit. This court explained:
"While each report could have provided more detail about relator's job duties, neither
report indicates a misunderstanding of the physical requirements of the position." Id. at
¶ 10.
        {¶ 93} As earlier noted, presumably, the board relied upon the reports of
Drs. Miller and Middaugh when it initially determined to terminate the disability benefit.
        {¶ 94} As earlier noted, in his eight-page narrative report of his October 17, 2011
psychiatric examination, Dr. Miller states:
               I reviewed Ms. Lowe's job description from Hamilton County
               Department of Job and Family Services.

        {¶ 95} Other than stating that he reviewed the HCDJFS job description, Dr. Miller
does not specify any of the job duties of this position.
        {¶ 96} However, when Dr. Miller opines: "I see no reason that her previous type of
work would be contraindicated," it can be inferred that Dr. Miller was aware of the duties
of the HCDJFS job. That inference can be drawn by the board that weighs the evidence
before it.
        {¶ 97} As earlier noted, in her five-page narrative report, Dr. Middaugh wrote:
               Medical Record Review: Medical records provided are
               quite limited. There is a job description for Hamilton County
               Department of Job and Family Services for the CPA
               Specialist Program Technician 2. This is consistent with her
               job description, conducting applications, processing and
               gathering necessary information for eligibility regarding
               Healthy Start, Healthy Families and expedited Medicaid
               programs.

        {¶ 98} It is difficult to see how the above-quoted portion of the report can be
viewed as anything but a showing of sufficient knowledge of the HCDJFS job tasks.
No. 13AP-627                                                                             32


Dr. Middaugh not only acknowledges that she reviewed the job description, she also
compared the job description with the job description relator reported to her at the
examination.
       {¶ 99} As earlier noted, on appeal of the board's initial decision, relator underwent
another psychiatric examination performed by Dr. Reynolds on May 11, 2012. In his ten-
page report, Dr. Reynolds stated that he reviewed the "[p]osition description for a CPA
Specialist with the Hamilton County Department of Job and Family Services." Other than
stating that he reviewed the HCDJFS job description, Dr. Reynolds does not specify any of
the job duties of this position.
       {¶ 100}        In his report, Dr. Reynolds does not opine that relator is medically
able to return to her former position at HCDJFS. Rather, Dr. Reynolds opines that
relator's psychiatric symptomatology is not permanent because relator has not been
treated with "mood stabilizing medication." This is significant because knowledge of the
duties of the former position at HCDJFS would not be critical to Dr. Reynolds' conclusion
that "mood stabilizing medication" should be tried before any assessment of relator's
ability to return to the HCDJFS job.
       {¶ 101}        Accordingly, relator's challenge to the board's reliance upon the
reports of Drs. Miller, Middaugh, and Reynolds is unpersuasive.
                                       Third Issue
       {¶ 102}        The third issue is whether the board's determination that relator is
no longer physically and psychologically unable to perform her former position at
HCDJFS is supported by some evidence in the record, and particularly by the board-
appointed examining physicians of record. Only Drs. Miller, Middaugh, and Reynolds
were R.C. 145.362 examining physicians selected by the board to examine relator with
respect to the benefit termination at issue here. Relator underwent two psychiatric
examinations, one before, the other after the board's initial decision of December 14, 2011.
Relator only underwent one physical examination which was performed by Dr. Middaugh
before the initial decision. No physical examination was performed by a board selected
physician after the initial decision. Thus, in rendering its final decision, the board must
have relied exclusively upon the report of Dr. Middaugh for the physical component of the
disability claim.
No. 13AP-627                                                                              33


       {¶ 103}        Relator has not claimed error in the failure of OPERS to schedule
another physical examination by a board-selected physician, and the magistrate does not
find error under the circumstances here. Accordingly, Dr. Middaugh's report is also some
evidence upon which the board presumably relied to support the determination to
discontinue disability benefits.
       {¶ 104}        Accordingly, for all the above reasons, it is the magistrate's decision
that this court deny relator's request for a writ of mandamus.


                                           /S/ MAGISTRATE
                                           KENNETH W. MACKE

                              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).
