[Cite as State ex rel. Burroughs v. Bd. of Ohio Hwy. Patrol Retirement Sys., 2016-Ohio-2808.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Jeffrey A. Burroughs,                    :

                 Relator,                              :

v.                                                     :                         No. 15AP-89

Board of Ohio Highway Patrol                           :                   (REGULAR CALENDAR)
Retirement System and Ohio
Highway Patrol Retirement System,                      :

                 Respondents.                          :




                                            D E C I S I O N

                                        Rendered on May 3, 2016


                 On brief: Dagger, Johnston, Miller, Ogilvie & Hampson,
                 LLP, and D. Joe Griffith, for relator.

                 On brief: Michael DeWine, Attorney General, John J.
                 Danish, and Mary Therese Bridge, for respondents.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.

        {¶ 1} Relator, Jeffrey A. Burroughs, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Board of Ohio Highway Patrol
Retirement System ("board") to vacate its decision which terminated relator's disability,
and ordering the board to reinstate his disability.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, appended hereto,
including findings of fact and conclusions of law. The magistrate recommends that this
court deny the request for a writ of mandamus.
No. 15AP-89                                                                                 2


       {¶ 3} Relator has filed the following objection to the magistrate's decision:
              The Retirement System's Decision was unreasonable and not
              supported by any evidence.

       {¶ 4} Relator does not object to the magistrate's findings of fact, therefore we
adopt them as our own. We consider, however, relator's argument that: (1) the evidence
of relator's participation in the Savage Race Ohio 2014, and (2) the report of the
independent medical evaluator, Dr. Nancy Vaughan, do not constitute "some evidence"
that relator could perform the duties of a state trooper. Specifically, we consider the
argument that "[participating in] the race * * * does not indicate an ability to subdue
perpetrators or engage in physical contact, which is required of a patrolman." (Relator's
Objection, 11.)
       {¶ 5} With regard to participation in the Savage Race, relator argues there was no
evidence that he did anything other than walk or jog at a 20-minute-mile pace. Relator
also argues that his participation in the race is not evidence sufficient to demonstrate he
could perform the duties of a state trooper. We agree with this latter argument. The
Savage Race description contained in the record, and Dr. Vaughan's more detailed
summary description of the race, may constitute some evidence that relator could perform
some duties of a state trooper. However, the descriptions do not constitute some evidence
that full participation in the race would equate with relator being able to perform all
duties of a state trooper. In her August 1, 2014 report, Dr. Vaughan described the race as
follows: "an 'intense 5- to 6- mile obstacle run with 25 world class obstacles, mud, fire,
and barbed wire. Completion requires teamwork, courage, and the will to push your
limits farther than you ever have before. You are on [an] individually created team!'
Obstacles include jumping into ice water baths, sprinting uphill through a sea of tires,
climbing over an 8-foot wall, running through thick, shoe-sucking mud, carrying a log or
sand bag, jumping off of a building into deep water, jump over rows of fire, [and] low
crawl through mud." Clearly, the race descriptions constitute evidence that relator could
perform some of the physical duties of a state trooper, such as "[c]limb[ing] over
obstacles, vehicles and rough terrain at crash scenes," "[r]un[ning] after fleeing violators,"
"[r]unning," "[w]alking," "[l]ifting (heavy objects at times)," and "[c]limb[ing] stairs."
However, the race descriptions do not constitute evidence that relator could perform
other physical duties of a state trooper, in particular, "[s]ubdu[ing] violators and attackers
No. 15AP-89                                                                                                 3


who resist arrest," "[o]perat[ing] a patrol car at high speeds," or "[a]ssist[ing] in
controlling large numbers of unruly people," among other activities.1
        {¶ 6} With regard to Dr. Vaughan's August 1, 2014 report, relator argues that the
report cannot be used as some evidence on which to rely because: (1) it uses the term
"[a]pparently," (2) it contains the erroneous conclusion that relator is fully recovered
because he ran the race at a faster pace than his wife, and (3) it goes against the vast
majority of medical evidence presented, including evidence that additional testing is
necessary before coming to any conclusion. In particular, relator points to the board's
own medical advisor, Dr. David A. Tanner's, second letter, dated October 6, 2014, written
after his initial concurrence with Dr. Vaughan's assessment, that relator should
participate in a physical capacity evaluation of his functional abilities. Relator argues that
the magistrate ignored this second letter and used only Dr. Tanner's first letter, dated
August 20, 2014, to support Dr. Vaughan's letter. In his October 6, 2014 letter, Dr.
Tanner noted that in light of new medical documentation submitted after Dr. Vaughan's
August 1, 2014 report, the progress note of Dr. Duncan E. Legg dated September 8, 2014,
and the medical record office visit note from Dr. Gregory Z. Mavian dated September 15,
2014, he would concur and agree with Dr. Mavian's recommendation to have relator
participate in a physical capacity evaluation.
        {¶ 7} Respondents argue that Dr. Vaughan's report constitutes some evidence on
which the board could rely to find that relator does not have a disabling condition.
Respondents further argue that Dr. Vaughan was the only physician who reviewed
relator's job description when considering his disability status. Further, respondents
argue that in his August 20, 2014 letter, Dr. Tanner initially concurred with Dr. Vaughan's
findings. Finally, respondents argue that Dr. Vaughan was the board's independent
medical evaluator, and that her report, along with the board's concurrence, is the only
evidence needed pursuant to Ohio Adm.Code 5505-3-03(C).
        {¶ 8} In her August 1, 2014 report, Dr. Vaughan acknowledged some of relator's
duties as a state trooper: "According to the job duties and responsibilities, he must wear a
gun belt, subdue violators, operate a patrol car, wear a seatbelt, assist in rescuing injured
persons, climb over obstacles, vehicles, and rough terrain, run after fleeing violators,

1 Dr. Vaughan also noted that relator stated he was "unable to accurately shoot a firearm." The race

descriptions also do not constitute some evidence of relator's ability to accurately shoot a firearm. We note,
however, that the job duties and responsibilities of relator, provided by the Highway Patrol Retirement
System, do not include a duty or responsibility that relator be able to shoot a firearm. There is a
duty/responsibility, however, to "wear a gun belt including a holster."
No. 15AP-89                                                                                 4


[and] lift heavy objects." She indicated that she reviewed the records submitted by the
Ohio State Highway Patrol regarding the Savage Race and, as noted above, incorporated a
summary description of the race into her report. Dr. Vaughan also indicated that she
conducted a physical examination of relator's cervical spine, upper limbs, and lower
limbs. She noted, "[a]pparently he is fully recovered from his cervical decompression and
fusion. No myelopathic findings on examination today." Nevertheless, she did not base
her conclusion that relator could perform his job duties on her medical examination,
rather, she concluded "[b]ased on the fact that he was able to complete this vigorous
event and looking at his job description provided, it is my medical opinion that at this
point in time he has recovered and he could physically perform his assigned duties as a
highway patrolman."        (Emphasis added.)     As noted above, the evidence of relator's
participation in the Savage Race does not constitute some evidence that he could perform
all the duties and responsibilities of a state trooper as outlined by the Ohio State Highway
Patrol.
          {¶ 9} Relator argues that the only way to determine whether he has the ability to
perform the duties of a state trooper is to complete a physical capacity evaluation. He
notes this was recommended by his own physicians and by Dr. Tanner, the board's
medical advisor.
          {¶ 10} On review of the magistrate's decision, an independent review of the record,
and due consideration of relator's objection, we find the magistrate has properly
determined the pertinent facts and adopt them as our own. However, we sustain relator's
objection to the magistrate's decision and modify the magistrate's conclusions of law
consistent with this decision. Accordingly, we grant a limited writ of mandamus for the
purpose of completing a physical capacity evaluation to determine whether there is some
evidence that relator could physically perform all of his assigned duties as a state trooper.
                                                                         Objection sustained;
                                                         limited writ of mandamus granted.

                        BROWN and LUPER SCHUSTER, JJ., concur.
No. 15AP-89                                                                              5


                                        APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State ex rel. Jeffrey A. Burroughs,            :

              Relator,                         :

v.                                             :                     No. 15AP-89

Board of Ohio Highway Patrol                   :                  (REGULAR CALENDAR)
Retirement System and Ohio
Highway Patrol Retirement System,              :

              Respondents.                     :




                           MAGISTRATE'S DECISION

                               Rendered on October 28, 2015



              Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, and D.
              Joe Griffith, for relator.

              Michael DeWine, Attorney General, John J. Danish and
              Mary Therese Bridge, for respondents.


                                      IN MANDAMUS

       {¶ 11} Relator, Jeffrey A. Burroughs, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent, the Board of Ohio Highway
Patrol Retirement System ("board"), to vacate its decision which terminated relator's
disability, and ordering the board to reinstate his disability.
Findings of Fact:
       {¶ 12} 1. Relator began working as a state trooper with the Ohio State Highway
Patrol ("OSHP") in 1997.
No. 15AP-89                                                                                  6


          {¶ 13} 2. In 2007, relator began experiencing significant problems with his neck,
which resulted in surgery in September 2010. At that time, Gregory Mavian, D.O.,
performed the following procedure:
                Anterior cervical microdiskectomy, partial corpectomy,
                extensive spinal cord and nerve root decompression c3-4, c4-
                5, c5-6, c6-7, with structural interbody allograft with
                individually cut, contoured grafts at each level with anterior
                cervical spinal instrumentation utilizing 80 mm Atlantis
                plate and 15 mm screws, c3-4, c4-5, c5-6, c6-7, use of the
                operating microscope and placement of cervical Jackson-
                Pratt drain.

          {¶ 14} 3. Although by all accounts relator responded well to the surgery and his
prognosis was good, Dr. Mavian opined that relator was totally incapacitated from the
performance of his specific job duties as a state trooper for the OSHP. Specifically, Dr.
Mavian indicated that relator was unable to perform the following duties and
responsibilities: "[p]hysical altercations - risk of injury to neck (cervical spine)." Dr.
Mavian       advised      relator   to   continue     his   post-operative     recovery   and
reconditioning/muscle strengthening and indicated that his prognosis for improvement
was "good."
          {¶ 15} 4. Relator was examined by Claire V. Wolfe, M.D. In her December 21,
2010 report, Dr. Wolfe concluded that, although relator had responded well to surgery, in
her opinion, he could not fulfill all of the requirements of a state trooper. Specifically, she
stated:
                Mr. Burroughs has recovered well from his cervical spine
                surgery but he should not be in a situation that would put
                him at risk. Even with his successful fusion, he still has some
                symptoms and signs of his myelopathy. He has lumbar issues
                that are probably very similar and he would not be able to
                fulfill all of the requirements of a patrol officer especially for
                responding to emergencies and dealing with perpetrators.

          {¶ 16} 5. Christopher D. Cannel, M.D., a physical medicine and rehabilitation
specialist, authored a report dated March 9, 2011, recommending that relator be granted
disability and stating:
                In my opinion, based on Mr. Burroughs' job description as a
                state trooper which involves driving throughout much of the
                day, at times being involved in altercations as well as having
                to be part of self-defense training and instruction, I am of the
                opinion that he is not able to perform his duty as a state
                trooper. His limited cervical range of motion would
No. 15AP-89                                                                                  7


              significant[ly] effect his driving ability and his underlying
              cervical condition prevents him from being involved in
              physical altercations or with self-defense instructing or self-
              defense classes. There would be a greater risk for further
              harm in light of his underlying cervical pathology.

       {¶ 17} 6. In a letter dated April 29, 2011, relator was advised that the board had
voted to approve his off-duty disability retirement application, effective April 28, 2011.
       {¶ 18} 7. In 2013, relator was asked to submit an annual statement of earnings and
medical information pursuant to R.C. 5501.18(E) and Ohio Adm.Code 5505-3-03. In
response, relator submitted his statement of earnings, a copy of his job description with
Northwoods Consulting Partners, and a report from Dr. Mavian.
       {¶ 19} 8. The board's medical consultant, Earl A. Metts, M.D., performed an
annual disability evaluation, and noted that relator's disability was ongoing.
       {¶ 20} 9. In June 2014, relator participated in Savage Race Ohio 2014. The event
is described at the website http://www.savagerace.com/about (accessed Jun. 27, 2014), as
follows:
              ARE YOU A SAVAGE?

              Savage Race is an intense 5-7 mile obstacle run with 25
              world class obstacles, mud, fire, and barbed wire.
              Completion requires teamwork, courage, and the will to push
              your limits farther than you ever have before. Run
              individually or create a team!

              ***

              THE SAVAGE OBSTACLE COURSE

              We carefully select each venue to ensure that our mud races
              occur on the gnarliest terrain available in your region. We
              won't settle for a boring cow pasture, or just any old piece of
              land. Nope. Our obstacle courses feature plenty of natural
              features to keep things interesting. Each venue is different, of
              course, but in all cases you should expect an extreme dirty
              mud racing environment!

              ***

              Adding to the mayhem, we sprinkle 25 or more insane
              obstacles throughout the already-difficult course. Obstacles
              will vary by location, and you should always be prepared to
              face a surprise or two along the way. View our obstacles.
No. 15AP-89                                                                             8


               ***

               SAFETY RULES

               Course obstacles may be hazardous. Savage Race is designed
               to push your limits, but do not attempt an obstacle that you
               are uncomfortable with. Race officials will always offer a
               fitness-oriented alternative to any obstacle. Be smart and use
               your discretion. Notify a race official if you are injured or feel
               that your safety is in danger at any time during the race.

(Emphasis sic.)
       {¶ 21} Relator completed the race in 2 hours, 27 minutes, and 28.9 seconds.
       {¶ 22} 10. Although it is not clear how the board learned that relator had
participated in this event, upon being notified that he participated in the Savage Race,
David A. Tanner, D.O., advised that relator needed to be seen for an independent medical
examination.
       {¶ 23} 11. Relator was examined by Nancy M. Vaughan, M.D. In her August 1,
2014 report, Dr. Vaughan set forth the history of relator's injuries, noted his job duties
and responsibilities, and discussed his current activities, including:
               Since he was previously evaluated, he has taken a job in
               project management for a software company. He has worked
               there for over two years. He said in management he helps
               with the budget and scheduling. He does travel. He has to
               drive or fly to Charlotte, North Carolina frequently. He has
               also been to California, Virginia, and has had jobs in Ohio.
               He states he is at a site for three to six months at a time. He
               states that he uses a laptop computer. According to the job
               description for Northwoods Consulting Partners for the
               coordinator of project management, he must understand
               project contract terms, such as payment terms,
               performances, environmental or legal constraints. He must
               coordinate the delivery and employment of technologies. He
               must be able to identify and document project issues and
               risks.

               He denies active instruction in partial [sic] arts. He said he
               does do some training for alcohol impairment and education.
               He does admit to working out with his two teenage sons. He
               states that he "tries to keep up with them." He stated that he
               had a difficult time with fine motor skills as another reason
               for not being able to perform as a patrolman; however, he
               did tell me that he is using a laptop computer at his current
               job, which in my opinion is more challenging from a fine
               motor standpoint than using a desktop computer.
No. 15AP-89                                                                             9



              ***

              I did review the records that were submitted by the Ohio
              State Highway Patrol regarding The Savage Race of Ohio
              2014 where Mr. Jeffrey Burroughs and family members did
              participate as a part of "The Young and the Restless Team."
              Jeff Burroughs did finish this race in two hours and 27
              minutes. The Savage Race is an "intense 5- to 6-mile obstacle
              run with 25 world class obstacles, mud, fire, and barbed
              wire. Completion requires teamwork, courage, and the will to
              push your limits farther than you ever have before. You are
              on [an] individually created team!" Obstacles include
              jumping into ice water baths, sprinting uphill through a sea
              of tires, climbing over an 8-foot wall, running through thick,
              shoe-sucking mud, carrying a log or sand bag, jumping off of
              a building into deep water, jump over rows of fire, low crawl
              through mud.

       {¶ 24} Dr. Vaughan provided her physical findings upon examination and noted
the following impression: "[s]tatus post cervical decompression and fusion. No evidence
of myelopathic findings on examination." Thereafter, Dr. Vaughan concluded that, in her
opinion, relator could return to his former position of employment, stating:
              Apparently he is fully recovered from his cervical
              decompression and fusion. No myelopathic findings on
              examination today. According to the records he was able to
              participate in a very rigorous event called the Savage Race of
              Ohio. He was able to complete the event in less than two and
              a half hours. (A female completed the event at about the
              same time. I am not sure of the relationship. The name was
              Lisa Burroughs.) Based on the fact that he was able to
              complete this vigorous event and looking at his job
              description provided, it is my medical opinion that at this
              point in time he has recovered and he could physically
              perform his assigned duties as a highway patrolman;
              however, currently he has a different job and may not elect to
              return to his former occupation.

       {¶ 25} 12. David A. Tanner, D.O., reviewed Dr. Vaughan's report and, in a letter
dated August 20, 2014, concurred with her findings and recommendations.
       {¶ 26} 13. In a letter dated August 25, 2014, relator was notified as follows:
              This letter is to advise you at the August 21, 2014 meeting,
              the Retirement Board voted to terminate your disability. The
              effective date of your disability termination will be
              August 21, 2014, unless you chose [sic] to appeal as
No. 15AP-89                                                                             10


              described below and in Ohio Administrative Code (OAC)
              5505-3-03.

       {¶ 27} 14. In a letter dated September 2, 2014, relator provided a written notice of
appeal concerning the termination of his disability benefits, stating:
              The Retirement Board[']s decision was apparently based on a
              medical evaluation conducted by Dr. Nancy Vaughn on
              August 1st, 2014. Although Dr. Vaughn's evaluation was very
              brief and did not consist of any X-Rays, MRI's or
              conversation about permanent nerve damage, or the
              numerous screws and metal implanted in my neck, she made
              the decision that I could miraculously now perform the
              duties of a State Trooper. Dr. Vaughn primarily based the
              decision on information that I had participated in a non
              competitive exercise event called The Savage Race, and that I
              lift weights. There is no documentation or Revised Code that
              says a disability separated Trooper cannot maintain health
              through exercise. Dr. Vaughn's assessment of the duties of a
              State Trooper must be clouded. To assume that because an
              individual exercises makes them fit for the responsibilities of
              a State Trooper is inaccurate as you well know. State
              Troopers not only need to be fit but they must be able to
              work long hours with heavy gear, confront violent hostile
              crowds, and participate in violent confrontations. Some of
              these confrontations may require use of a steady firearm, or
              prolonged ground fighting. Both of which were reasons why
              Dr. Vaughn's co-worker, Dr. Claire Wolfe, determined I
              could not do the job and recommended the Patrol disability
              separate me in the first place. My condition has not changed
              since the day Dr. Claire Wolfe determined me to be unfit for
              duty as a State Trooper. My condition will never change.
              Apparently, the Patrol's acceptance of my conditions is what
              has changed.

       {¶ 28} 15. Relator saw his family physician, Duncan E. Legg, M.D., to discuss Dr.
Vaughan's findings. Thereafter, Dr. Legg noted:
              He does not have any type of significant pain in his neck but
              does note muscle stiffness and decreased range of motion.
              He has had a fusion at C3-7 with hardware placement due to
              degenerative arthritis and disc disease. * * * He notes a
              tremor in his left hand, particularly in the left thumb and
              index finger.

              ***

              He'll continue with his current evaluation. He has plans to
              meet with his neurosurgeon, Dr. Mavian. He has definite loss
              of range of motion in the cervical spine. He has metal
No. 15AP-89                                                                            11


               hardware in the neck area from his surgical procedure. I
               recommend he continue with his current occupation which
               does not pose a significant peril to his neck. Continue with
               current medication. I would not recommend return to full
               duty work as a police officer due to his lack of range of
               motion of his cervical spine and the potential for significant
               injury to his fused cervical spine in the event of a physical
               confrontation.

      {¶ 29} 16. In a letter dated September 15, 2014, Dr. Mavian stated the following on
examination:
               Cervical restriction is noted on rotation right and left with
               extension and flexion all intact within normal limits slightly
               restricted but without pain.

      {¶ 30} Thereafter, Dr. Mavian recommended:

               [One] Condition symptomatic care and treatment with over-
               the-counter anti-inflammatory medications and sympto-
               matic care.

               [Two] I would recommend that the patient continue
               moderate exercise to maintain satisfactory muscle tone and
               posture so as to prevent cervicodorsal kyphosis C7-T1- and
               C2-C3.

               [Three] I maintained that the patient should not participate
               in any law enforcement activities so as to risk a serious injury
               and recurrent symptoms of his cervical spine.

               [Four] I would recommend a physical capacity evaluation in
               a structured formal matter to assess his physical abilities as
               discussed.

               Dr. Legg, I believe that Mr. Burroughs has done extremely
               well considering the extensive surgery he had and the fact
               that he has really not had any significant problems since his
               surgery. I do understand his frustration with "the system"
               and he has been encouraged to participate in physical
               activities within limits and common sense to be exercised to
               maintain good physical strength and good posture to prevent
               future problems. However just because this individual does
               participate in physical activities and athletic events does not
               "qualify him for duty" simply because a physical altercation
               as a state trooper or law enforcement officer is a totally
               different situation [sic] then using common sense and
               working out with regular fitness activities.
No. 15AP-89                                                                            12


              I would ask that you consider referring this individual for a
              Physical Capacity Evaluation or my secretary could perhaps
              assist him if necessary and symptomatic care and treatment
              is to be maintained.

      {¶ 31} 17. In a letter dated October 2, 2014, counsel for relator made the following
argument to the board:
              The basis for this appeal is fourfold. First, the medical
              condition that prompted the Retirement Board to approve
              Mr. Burroughs's application for disability in 2011 has not
              changed. He is just as disabled today from serving as a State
              Trooper as he was in 2011. Second, Mr. Burroughs's
              participation in a foot race, which apparently triggered the
              review of his status, is irrelevant to the issue of whether Mr.
              Burroughs is disabled from working as an Ohio State
              Trooper. Third, Dr. Vaughan's report does not contradict the
              earlier findings that prompted the Retirement Board to deem
              Mr. Burroughs disabled, nor does her report establish a
              reasonable basis for concluding that Mr. Burroughs is no
              longer disabled. Finally, Mr. Burroughs's physicians have
              both opined that Mr. Burroughs remains disabled from
              returning to work as a State Trooper.

              ***

              Mr. Burroughs's participation in "The Savage Race
              of Ohio" does not support the termination of his
              disability benefits. Neither Dr. Tanner nor Dr. Vaughan
              offers a convincing rationale for why Mr. Burroughs's
              participation in a foot race means he is now able "to fulfill all
              of the requirements of a patrol office[r], especially for
              responding to emergencies and dealing with perpetrators."
              The race was largely a running race; there was no
              requirement that a participant engage in any physical
              encounters or otherwise do anything that risked injury to Mr.
              Burroughs's neck or spinal cord. Mr. Burroughs, after all,
              competed in (and completed) the race alongside his wife
              (who is a deputy county auditor). Not to disparage Ms.
              Burroughs or her occupation, but is the fact that Mr.
              Burroughs can perform a physical task at the same level as a
              deputy state auditor (whose job is largely sedentary) a
              sufficient basis upon which to terminate his disability
              benefits?

(Emphasis sic.)
      {¶ 32} 18. After reviewing the independent medical evaluation performed by Dr.
Vaughan, as well as the progress note from Dr. Legg and the report from Dr. Mavian, Dr.
No. 15AP-89                                                                                 13


Tanner concurred with Dr. Mavian's recommendation that relator participate in a
physical capacity evaluation ("FCE").
       {¶ 33} 19. The board did not refer relator for an FCE and, in a letter dated
October 17, 2014, the board notified relator as follows:
              This letter is to advise you the Retirement Board upheld its
              August 21, 2014, decision to terminate your disability
              retirement at its October 16, 2014 meeting. The effective date
              of your disability termination will be October 16, 2014.

       {¶ 34} 20. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 35} Mandamus is the appropriate remedy for relator to seek relief from an
adverse determination concerning disability retirement benefits or from other retirement
decisions. See State ex rel. Pontillo v. Pub. Emp. Retirement Sys. Bd., 98 Ohio St.3d 500,
2003-Ohio-2120; State ex rel. Moss v. Ohio State Hwy. Patrol Retirement Sys., 97 Ohio
St.3d 198, 2002-Ohio-5806; State ex rel. Mallory v. Pub. Emp. Retirement Bd., 82 Ohio
St.3d 235 (1998); and State ex rel. McMaster v. School Emp. Retirement Sys., 69 Ohio
St.3d 130 (1994). In order to prevail, relator must demonstrate that: (1) she has a clear
legal right to the relief requested; (2) the board has a clear legal duty to provide the relief
requested; and (3) relator has no plain and adequate remedy in the ordinary course of the
law. State ex rel. Gill v. School Emp. Retirement Sys. of Ohio, 121 Ohio St.3d 567, 2009-
Ohio-1358.
       {¶ 36} When there is conflicting medical evidence submitted to a public retirement
system board, the court cannot substitute its judgment for that of the board and find an
abuse of discretion. State ex rel. Bruce v. State Teachers Retirement Bd. of Ohio, 153 Ohio
App.3d 589, 2003-Ohio-4181 (10th Dist.). The term abuse of discretion connotes a board
decision that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1983). Where there is some evidence in the record to support the board's
decision, the board has not abused its discretion. State ex rel. Marchiano v. School Emps.
Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307. In State ex rel. Thomas v. Pub.
Emps. Retirement Sys., 10th Dist. No. 03AP-137, 2004-Ohio-1403, this court has stated
that, "[i]n order to constitute an abuse of discretion, the court's decision must be so
grossly inconsistent with fact or logic that it displays 'not the exercise of reason but
instead passion or bias.' "
No. 15AP-89                                                                                 14


        {¶ 37} Initially, the magistrate finds that Dr. Vaughan's use of the word
"apparently" does not disqualify her report from evidentiary consideration, and is not
proof that she applied an incorrect standard. Based on her examination and relator's
ability to participate in the Savage Race, Dr. Vaughan concluded that it appeared that
relator could perform the duties of his job as a state trooper.
        {¶ 38} Relator asserts that the evidence was insufficient to justify the termination
of his disability benefits. Relator asserts that his condition has not changed and there is no
new objective medical evidence to support the determination that he can return to a job
where there is a threat of serious injury which could come from a blow or a jerk to his
neck.
        {¶ 39} In originally granting relator disability, the board had before it the report of
Dr. Mavian who indicated that relator was unable to perform the following duties and
responsibilities: "[p]hysical altercations - risk of injury to neck (cervical spine)." Dr.
Mavian did, however, note that relator's prognosis was good. Dr. Wolfe agreed that
relator should not return to work, stating as follows in her December 21, 2010 report:
               Mr. Burroughs has recovered well from his cervical well from
               spine surgery but he should not be in a situation that would
               put him at risk. Even with his successful fusion, he still has
               some symptoms and signs of his myelopathy. He has lumbar
               issues that are probably very similar and he would not be
               able to fulfill all of the requirements of a patrol officer
               especially for responding to emergencies and dealing with
               perpetrators.

        {¶ 40} Further, in his March 9, 2011 report, Dr. Cannell stated:

               In my opinion, based on Mr. Burroughs' job description as a
               state trooper which involves driving throughout much of the
               day, at times being involved in altercations as well as having
               to be part of self-defense training and instruction, I am of the
               opinion that he is not able to perform his duty as a state
               trooper. His limited cervical range of motion would
               significant[ly] effect his driving ability and his underlying
               cervical condition prevents him from being involved in
               physical altercations or with self-defense instructing or self-
               defense classes. There would be a greater risk for further
               harm in light of his underlying cervical pathology.

        {¶ 41} All of the medical evidence submitted when his disability retirement was
granted indicated that relator was unable to perform his duties as a state trooper because
No. 15AP-89                                                                               15


of the possibility that he would encounter sudden, forceful, unexpected forces upon his
neck, and his neck was not strong enough to sustain such trauma.
       {¶ 42} Although relator contends that he did nothing more than stay in shape, it is
clear that he did more than lift weights in a controlled environment or jog/run. During
the Savage Race, participants crawl under barbed wire, work their way through fields of
mud, apparently exerting significant force to extricate their feet from the mud, climb over
obstacles, crawl through tunnels, lift and carry heavy objects, and run up hill through a
series of tires, etc. During the course of any of these activities, participants are exposing
themselves to sudden and somewhat unexpected forces. Upon examining relator and
considering the activities which he was able to perform during the Savage Race, Dr.
Vaughan concluded that the surgery was effective, and, because relator had diligently
worked out as Dr. Mavian had instructed him, he was now capable of returning to his
employment as a state trooper.
       {¶ 43} At oral argument, counsel for relator asserted that relator did not truly
participate in the Savage Race but, instead, he simply ran alongside the course without
navigating the obstacles. If this was true, relator should have included this fact in his
September 2, 2014 letter challenging the board's decision to terminate his disability
retirement.
       {¶ 44} While it is admirable that relator has stayed in shape and he certainly
should be given credit for that, the Savage Race encompasses significantly more than
simply working out, lifting weights in a gym, or even participating in an event such as a
marathon.     Those environments are relatively controlled.         However, by its very
description, the Savage Race is not a controlled environment. Relator's participation
posed the threat of damage to his neck and constitutes some evidence that, following
surgery, his prognosis for improvement was indeed good. Based upon relator's ability to
participate in such an event and the report of Dr. Vaughan, the magistrate finds that the
board did not abuse its discretion when it decided to terminate relator's disability, and
this court should deny his request for a writ of mandamus.




                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
No. 15AP-89                                                                       16


                              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).
