[Cite as State ex rel. Seabolt v. State Hwy. Patrol Retirement Sys., 2018-Ohio-1377.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. Benjamin R. Seabolt,                       :

                 Relator,                                :
                                                                               No. 17AP-52
v.                                                       :
                                                                      (REGULAR CALENDAR)
State Highway Patrol Retirement System,                 :

                 Respondent.                             :




                                           D E C I S I O N

                                       Rendered on April 12, 2018


                 On brief: Blaugrund Haynes Kessler Myers & Postalakis, Inc.,
                 and Marc E. Myers, for relator.

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

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, P.J.
        {¶ 1} Relator, Benjamin R. Seabolt, has filed an original action requesting this
court issue a writ of mandamus ordering respondent, State Highway Patrol Retirement
System (hereafter "respondent" or "retirement system"), to amend its decision approving
relator's R.C. 5505.18 application for disability retirement "not in the line of duty," and to
enter an amended decision approving the application for disability retirement "in the line
of duty."
        {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended
No. 17AP-52                                                                                2

decision, including findings of fact and conclusions of law, recommending this court deny
relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. In his objections,
relator argues there is no medical foundation for Dr. David A. Tanner's statement that
relator's disabling condition was not in the line of duty. Relator also contends that Dr.
Tanner misunderstands "pre-existing" for purposes of disability retirement.
       {¶ 4} As set forth in the magistrate's findings of fact, relator filed a disability
benefit application on June 6, 2016. On the application, relator listed December 22, 2015
as the date of the onset of the illness, injury or condition. Relator submitted medical
reports, including an attending physician form in which his physician provided diagnoses
of "disc herniation," "disc degeneration," and "spinal stenosis." Dr. Michael J. Griesser
subsequently examined relator at the request of respondent. Dr. Tanner, a medical
advisor for respondent, reviewed the medical information and issued a report dated
August 1, 2016. On August 18, 2016, the executive director of the retirement system
informed relator that the Health Wellness and Disability Committee ("disability
committee") had voted to recommend approval of the disability application "not in the
line of duty."
       {¶ 5} Relator requested reconsideration and submitted additional medical
information. Dr. Tanner reviewed the new information and issued a second report dated
October 4, 2016. The disability committee again considered the application and voted
unanimously to confirm the original recommendation.             On October 20, 2016, the
retirement system board considered the disability committee's recommendation and
voted to approve the application for disability retirement not in the line of duty.
       {¶ 6} In general, "a member of the Ohio Highway Patrol Retirement System is
eligible for disability retirement if the member 'becomes totally and permanently
incapacitated for duty in the employ of the state highway patrol.' "            State ex rel.
Burroughs v. Ohio Hwy. Patrol Retirement Sys. Bd., 150 Ohio St.3d 326, 2017-Ohio-
6923, ¶ 17, quoting R.C. 5505.18(A). In deciding whether this standard is met, "the board
'shall consider the written medical * * * report, opinions, statements, and other competent
evidence.' " Id., quoting R.C. 5505.18(A).
No. 17AP-52                                                                                  3

       {¶ 7} R.C. 5505.18(A) states in part:

              Upon the application of a member of the state highway patrol
              retirement system, a person acting on behalf of a member, or
              the superintendent of the state highway patrol on behalf of a
              member, a member who becomes totally and permanently
              incapacitated for duty in the employ of the state highway
              patrol may be retired on disability by the board. To be eligible
              for retirement on account of disability incurred not in the line
              of duty, a member must have five or more years of service
              credit according to rules adopted by the board.

              The medical or psychological examination of a member who
              has applied for disability retirement shall be conducted by a
              competent health-care professional or professionals
              appointed by the board. The health-care professional or
              professionals shall file a written report with the board
              containing the following information:

              (1) Whether the member is totally incapacitated for duty in
              the employ of the patrol;

              (2) Whether the incapacity is expected to be permanent;

              (3) The cause of the member's incapacity.

       {¶ 8} In the instant action, respondent approved relator's request for disability
retirement benefits, but found the disability occurred "not in the line of duty" (rather than
"in the line of duty"). Ohio Adm.Code 5505-3-02(A)(4) defines "[i]n the line of duty" to
mean "an illness or injury that occurred during or resulted from the performance of
official duties under the direct supervision of the state highway patrol." Ohio Adm.Code
5505-3-02(A)(5) defines "[n]ot in the line of duty" to mean "an illness or injury that did
not occur during or result from the performance of official duties under the direct
supervision of the state highway patrol."
       {¶ 9} Under Ohio law, "[a] benefits determination, even when there are facts in
dispute, 'is within the final jurisdiction of the [retirement system], subject to correction by
action in mandamus only upon a showing of an abuse of discretion.' " Burroughs at ¶ 25,
quoting State ex rel. Crosby v. Dept. of Mental Retardation, 38 Ohio St.3d 179 (1988).
Further, " '[t]he quantum of evidence necessary to support the retirement-system board's
decision is not a heavy one.' " Id., quoting State ex rel. Nese v. State Teachers Retirement
No. 17AP-52                                                                                4

Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, ¶ 26. As long as there is "sufficient
evidence" to support a retirement system board's decision, a reviewing court will not
disturb it. State ex rel. Grein v. Ohio State Hwy. Patrol Retirement Sys., 116 Ohio St.3d
344, 2007-Ohio-6667, ¶ 9.       See also State ex rel. Woodman v. Ohio Pub. Emps.
Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-3807, ¶ 17 ("The [retirement] board
abuses its discretion—and a clear right to mandamus exists—if it enters an order that is
not supported by some evidence.").
       {¶ 10} Relator's contention there is no "medical foundation" for Dr. Tanner's
conclusion that his disabling condition was not in the line of duty is not persuasive. In his
report of August 1, 2016, Dr. Tanner noted the July 13, 2016 report of Dr. Griesser
indicated diagnoses of disc protrusion and "degenerative disc disease at L5-S1." Dr.
Tanner opined, based on his review of "the documented clinical history," as well as the
"diagnostic findings and the consultative medical reports," that relator's conditions "did
not occur in the line of duty" but, rather, "the conditions * * * are congenital and
degenerative in nature and were pre-existing prior to the 12/22/15 date."
       {¶ 11} Following the August 18, 2016 correspondence from respondent's executive
director to relator, notifying him the disability committee voted to recommend approval
of the disability retirement benefit application "not in the line of duty," relator submitted
additional medical evidence on reconsideration.         Dr. Tanner reviewed the newly
submitted medical evidence and issued another report dated October 4, 2016. In that
report, Dr. Tanner noted that a 2014 report of a neurosurgeon indicated relator's low back
pain "began without any specific accident, injury or fall." Dr. Tanner further noted the
medical evidence indicated "congenital structural conditions" of relator's "spine,
diagnostic evaluation * * * indicated degenerative endplate disease, foraminal stenosis,
degenerative disc disease," and "lack of diagnostic MRI changes to indicate 'substantial
aggravation' of a pre-existing condition (Lumbar MRI's 2013 to 2016)." Dr. Tanner
further opined that "the probability of an essentially healthy 31 year old male having a
service belt cause these degenerative changes within a 9 year window is medically
improbable and thus not in the line of duty."
       {¶ 12} Here, Dr. Tanner agreed there was a disability, but the disabling condition
did not occur in the line of duty. Rather, Dr. Tanner found the incapacity was the result of
No. 17AP-52                                                                              5

a degenerative condition.      Dr. Tanner reviewed medical reports which indicated a
"degenerative disc disease at L5-S1," and found the condition to be "congenital and
degenerative in nature." As noted, there was no indication of any specific accident, injury
or fall, and Dr. Tanner addressed the issue of whether wearing a service belt caused the
condition. Based on his review of the medical evidence, Dr. Tanner opined that wearing a
service belt would not have caused the degenerative changes over the time frame at issue.
Upon review, and contrary to relator's contention, the record contains medical evidence to
support Dr. Tanner's determination that relator's incapacity was the result of a
degenerative and congenital condition, unrelated to the performance of his duties
(including the wearing of a service belt).
       {¶ 13} Relator's contention that Dr. Tanner misunderstands "pre-existing" for
purposes of disability retirement is also not persuasive. According to relator, Dr. Tanner
improperly interpreted pre-existing to mean anything prior to 2016. Relator appears to
challenge Dr. Tanner's observation there was no discernible change between a 2013 MRI
and a 2016 MRI.
       {¶ 14} As noted under the facts, relator listed December 22, 2015 as the onset of
his disability.   Here, we do not construe Dr. Tanner's statement that there was no
discernible change between the pre-2015 MRI and the post-2015 MRI as a
misunderstanding of "pre-existing." Again, there was medical evidence of a degenerative
and congenital condition, and the report of Dr. Tanner indicates he considered the issue
of whether the duties performed by relator either caused or aggravated that condition.
       {¶ 15} The fact that the record may contain medical opinions that differ with Dr.
Tanner's opinion "is inconsequential." Burroughs at ¶ 34. Further, in reaching its
determination that the disabling condition was not in the line of duty, "the board was not
required" to accept the medical opinion of a treating physician or a consultative physician
"over the opinion of a different independent medical examiner." Id. Upon review, we
agree with the magistrate's determination the reports of Dr. Tanner provided the
retirement system board with some evidence to support its determination relator is
disabled but not in the line of duty.
       {¶ 16} Following an examination of the magistrate's decision, as well as an
independent review of the record, we overrule relator's objections to the magistrate's
No. 17AP-52                                                                              6

decision. Accordingly, we adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein, and deny relator's request for a
writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                            TYACK and DORRIAN, JJ., concur.

                               ___________________

                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Benjamin R. Seabolt,       :

              Relator,                       :

v.                                           :                    No. 17AP-52

State Highway Patrol Retirement System,      :               (REGULAR CALENDAR)

              Respondent.                    :


                         MAGISTRATE'S DECISION

                              Rendered on August 31, 2017


              Blaugrund Haynes Kessler Myers & Postalakis, and Marc E.
              Myers, for relator.

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


                                    IN MANDAMUS

       {¶ 17} In this original action, relator, Benjamin R. Seabolt, requests a writ of
mandamus ordering respondent, State Highway Patrol Retirement System, to amend its
October 20, 2016 decision approving relator's R.C. 5505.18 application for disability
No. 17AP-52                                                                              7

retirement not in the line of duty, and to enter an amended decision approving the
application for disability retirement in the line of duty.
Findings of Fact:
       {¶ 18} 1. On June 6, 2016, relator completed a disability benefit application on a
form provided by respondent, State Highway Patrol Retirement System ("HPRS"). The
form is divided into four parts.
       {¶ 19} At part I, the form presents several questions to the applicant. The form
asks the applicant to "provide a brief description of your illness, injuries, or conditions
that limit your ability to work as a trooper?"
              In the space provided, relator responded:
              L5-S1 disk space collapse and right side disk bulge.
              Degenerative endplates on L5-S1 vertebra. Facet arthrosis of
              L5-S1.

       {¶ 20} At part I, the form presents the query: "Date you entered the Ohio State
Highway Patrol Academy." In response, relator entered May 16, 2007.
       {¶ 21} The form presents the query: "Did your illness, injury or condition occur in
the line of duty?" In response, relator marked the "Yes" box.
       {¶ 22} The form also presents the query: "What is the date of the onset of the
illness, injury, or condition that is the cause for this application?" In response, relator
wrote "12/22/2015."
       {¶ 23} Part II of the form is captioned "Self-Assessment." The applicant is asked to
list the tasks he is unable to perform and the percentage of the day devoted to performing
the task. In the space provided, relator wrote:
              Unable to wear duty belt             100%
              Struggle with resistors              Unknown
              Pursue violators on foot             Unknown
              Enter/exit patrol car repeatedly     50%

       {¶ 24} Part III of the form is captioned "Physician Care and Medical Treatment."
The form asks the applicant to name the treating physician. In response, relator named
chiropractor Christian E. Gedeon, D.C. Relator indicated that December 23, 2015 is the
date he first saw Dr. Gedeon for the condition.
No. 17AP-52                                                                              8

       {¶ 25} The form also asks the applicant to list the names of all physicians that he
has seen over the past five years.       In response, relator listed "Dr. Jed Bell" and
"Dr. Christian Bonasso."
       {¶ 26} Part IV of the form is captioned "Spouse and Dependents."            Relator
indicates that he was married on April 4, 2009. He also indicates that he is currently "On
Light Duty."
       {¶ 27} At Part IV, relator executed an affidavit on June 6, 2016 that certifies that
the information provided is complete and true.
       {¶ 28} 2. On June 6, 2016, Dr. Gedeon completed a HPRS form captioned
"Attending Physician Medical Evaluation."
       {¶ 29} The form asks the attending physician to state the "Cause of
Incapacity/What condition(s) are you treating?" In response, Dr. Gedeon wrote "Disc
herniation putting pressure on the left and right S1 nerve root." For the diagnosis,
Dr. Gedeon wrote "disc herniation," "disc degeneration," and "spinal stenosis."
       {¶ 30} The form asks the attending physician: "Which of the listed duties and
responsibilities is the applicant unable to perform, and what specific disabling condition
prevents performance?"
       {¶ 31} In the space provided, Dr. Gedeon wrote:
               Don't want patient to have duty belt or be in patrol car for
               long periods. Should not have to subdue violators of any
               type.

       {¶ 32} The form asks the attending physician to mark the appropriate box
indicating his disability opinion. Dr. Gedeon marked the box aside the pre-printed
statement "TOTALLY AND PERMANENTLY INCAPACITATED* to perform specific job
duties and responsibilities in the employ of the patrol." (Emphasis sic.)
       {¶ 33} 3. On June 6, 2016, with his application, relator submitted a report
regarding a February 1, 2016 MRI performed at the Hocking Valley Community Hospital.
The MRI was ordered by Dr. Gedeon. In his three-page report regarding the MRI,
interpreting physician Lewis MacLaughlin gave his impression which compared the
February 1, 2016 MRI to a previous MRI conducted at Hocking Valley Community
Hospital on October 3, 2013. For his impression, Dr. MacLaughlin states:
No. 17AP-52                                                                              9

              [One] No significant change since MRI of 10/3/2013.
              Lumbosacral transitional vertebra is again designated as S1.

              [Two] L5-S1: A broad-based annular bulge and
              superimposed right foraminal/far lateral disc protrusion and
              mild facet arthrosis again result in effacement of the ventral
              epidural space, mild narrowing of the right lateral recess,
              and mild to moderate right and mild left foraminal stenosis.
              No central spinal canal stenosis at any visualized level.

              [Three] Mild dextroconvex scoliosis of lumbar spine.

       {¶ 34} 4. On June 6, 2016, with his application, relator submitted a two-page letter
or report from Christian Louis Bonasso, M.D. to Dr. Gideon regarding an April 25, 2016
office visit. In the April 25, 2016 office note, Dr. Bonasso states:
              I had the opportunity to talk with Benjamin Seabolt with the
              chief complaint of low back pain and right lower extremity
              pain that radiates to just above his knee. This has been going
              on for quite some time, and he attributes it to him having to
              wear a 25-pound gun belt for the last 9 years. He has tried
              facet blocks, RF ablation, and chiropractic therapy, but no
              epidural steroid injections. His past medical and surgical
              history are noncontributory. He is on no medications. He has
              no drug allergies.

              Physical exam shows 5/5 strength in both upper and lower
              extremities. Deep tendon reflexes and sensation are intact.
              No pathological reflexes are noted. He denies any bowel,
              bladder or sexual dysfunction. Cranial nerves 2-12 are intact.
              He has no drift. He has a negative finger-to-nose test.

              MRI scanning shows L5-S1 disk space collapse with a right-
              sided disk bulge.

              DIAGNOSIS
              L5-S1 disk space collapse and right-sided disk bulge.

              TREATMENT OPTIONS AND PLAN
              I told Mr. Seabolt that I would like to get a diskogram at the
              L5-S1 level, along with a control level. He asked about a
              simple right-sided decompression discectomy. I told him
              that this was an option, but given the look of his anatomy he
              most likely is going to need a fusion done sooner rather than
              later. He works as a state trooper, and my feeling is that he
No. 17AP-52                                                                        10

              will be unable to return to full duty. All of his questions have
              been answered.

      {¶ 35} 5. On July 13, 2016, at the request of HPRS, relator was examined by
Michael J. Griesser, M.D. Dr. Griesser was an examining physician selected pursuant to
Ohio Adm.Code 5505-3-02(C).




      {¶ 36} 6. In his four-page narrative report, Dr. Griesser states:
              HISTORY OF PRESENT ILLNESS:
              The history provided in this section of my report is a
              compilation of information obtained from Mr. Seabolt on the
              date I examined him, July 13, 2016, and as was found in the
              provided medical records.

              Mr. Benjamin Seabolt was evaluated in the office today with
              respect to a several year history of low back and right lower
              extremity pain that radiates to just above his right knee. He
              has had an extensive course of treatment to date including
              extensive chiropractic therapy primarily from Dr. Gideon,
              facet blocks and ablation. His pain level has been reported to
              be 5/10 on a scale of 1 to 10 and constant in nature and
              increased by certain activities.

              Recently, he has been surgically evaluated by Dr. Bonasso
              who is recommending a discogram and surgical intervention
              to include a fusion at L5-S1 versus decompressive
              discectomy.

              On February 1, 2016, Mr. Seabolt had an MRI scan done of
              his lumbar spine that revealed as its impression; no
              significant change since the MRI of October 3, 2013.
              Lumbosacral transitional vertebrae is again designated as S1;
              at L5-S1 there was found to be a broad-based annular bulge
              and superimposed right foraminal/far lateral disc protrusion
              and mild facet arthrosis again resulting in effacement of the
              ventral epidural space, mild narrowing of the right lateral
              recess and mild to moderate right and mild left foraminal
              stenosis; no central spinal canal stenosis is visualized at any
              level; mild dextroconvex scoliosis of the lumbar spine.
No. 17AP-52                                                                    11

              On evaluation today, Mr. Seabolt reports a several year
              history of low back and lower extremity pain that is ongoing
              in nature and is increased by certain activities. For example,
              he relates wearing his gun belt increases his symptoms as
              does certain other aspects of his usual work duties including
              prolonged sitting in his patrol car, entering and exiting his
              vehicle, and bending at the waist or running.

              ***

              ASSESSMENT
              The history as reported by Mr. Seabolt, results of the
              physical examination and review of the provided records
              were used as the sources of information and facts upon
              which my conclusions, opinions and report were based. All
              conclusions and opinions are based upon a reasonable
              degree of medical probability.

              [One] What is the diagnosis?

              Based on today's evaluation, the diagnoses for Mr. Seabolt
              are L5-S1 disc protrusion and degenerative disc disease at
              L5-S1.

              [Two] In your medical opinion, is the patient's
              medical condition likely to improve in the future?

              Yes, I would expect improvement in the patient's medical
              condition in the future presuming he undertakes appropriate
              medical treatment, which has been proposed by Dr. Bonasso
              to include a discogram followed either by discectomy or
              fusion with Dr. Bonasso preferring the fusion.

              [Three] Do you recommend a treatment plan for
              this patient's medical condition?

              I agree with the proposed medical treatment of Dr. Bonasso
              in regard to his lumbar spine issues, a discogram followed
              likely by a fusion procedure.

              [Four] Other comments regarding the patient's
              medical conditions.

              Conservative treatment is unlikely to relieve the patient's
              complaints, noting he has had such measures without real
              benefit leaving surgery as the recommended treatment.
No. 17AP-52                                                                        12

              [Five] Is the patient totally and permanently
              incapacitated for duty with the Ohio State Highway
              Patrol or is the patient not totally and permanently
              incapacitated for duty with the Ohio State Highway
              Patrol?

              It is my opinion Mr. Seabolt is totally and permanently
              disabled from working for the Ohio State Highway Patrol as
              he is not able to perform his full job duties. While the
              proposed fusion surgery will likely relieve most of his pain
              complaints, he would not now or post-fusion surgery
              physically be able to fully engage in duties where he might be
              involved in a physical altercation, would likely require
              lifting/carry[ing]/pushing and pulling restrictions as well as
              restrictions on bending, crawling, kneeling and crouching,
              would not be able to wear the required body armor or gun
              belt, and/or run for longer distances, all of which are, in my
              opinion, inconsistent with the physical demands of his
              current work as described in the listing of his job duties.

      {¶ 37} 7. On August 1, 2016, HPRS medical advisor David A. Tanner, D.O. wrote:

              I have reviewed the Application for Disability Benefits and
              the medical records that were provided with the application.
              Trooper Seabolt is a 31 year old male who indicates that on
              12/22/2015 the repeated and extended wearing of his duty
              belt caused arthritis and pinched nerve in his lower right
              back and right hip. Trooper Seabolt was initially seen by
              Christian E. Gedeon DC. Dr. Gedeon is Trooper Seabolt's
              current Physician of Record for the conditions regarding his
              application. It is noted from the medical records reviewed
              Trooper Seabolt has a significant history of Low Back Pain
              and what appears from the [medical record], received
              previous diagnostics and treatments.

              For the applied date of injury of 12/22/15 Trooper Seabolt
              was initially treated conservatively with chiropractic therapy,
              however he did progress to diagnostics of Lumbar MRI on
              2/1/16, this was compared to a previous Lumbar MRI on
              10/3/13. The findings on the 2/1/16 report indicate in
              addition to the L5-S1 disc bulge, Lumbosacral transitional
              vertebrae at S1 and dextroconvex scoliosis of the Lumbar
              spine.

              Trooper Seabolt progressed to evaluation by Dr. Bonasso a
              neurosurgeon, who opined recommending a discogram and
No. 17AP-52                                                                           13

              surgical intervention of discectomy with probable fusion of
              L5-S1 given Trooper Seabolt's anatomy.

              Review [o]f the IME report from Michael Griesser M.D.
              dated 7/13/2016 indicates Trooper Seabolt with a several
              year history of low back and lower extremity pain. Dr.
              Griesser's opined diagnosis is L5-S1 disc protrusion and
              degenerative disc disease at L5-S1. Dr. Griesser
              anticipates/expects the condition of Trooper Seabolt to
              improve with the proposed treatment by neurosurgeon
              Dr. Bonasso. Dr. Griesser opines that Trooper Seabolt is
              totally and permanently disabled from working for the Ohio
              State Highway Patrol at his current medical state and likely
              to continue permanent disability after the surgical
              intervention of Fusion L5-S1.

              I concur with the medical opinion of D. Griesser that Trooper
              Seabolt is totally and permanently incapacitated to perform
              the job duties of the Ohio State Highway Patrol.

              However, given the documented clinical history of the low
              back complaints, diagnostic findings and the consultative
              medical reports I opine that Trooper Seabolt's conditions did
              not occur in the line of duty. The conditions of Trooper
              Seabolt are congenital and degenerative in nature and were
              pre-existing prior to the 12/22/15 date. It is also noted that I
              do not believe there is any substantial aggravation of this
              pre-existing condition as the Lumbar MRI's from 2/1/16 and
              10/3/13 indicate no significant change in comparison.

      {¶ 38} 8. By letter dated August 4, 2016, HPRS executive director Mark Atkeson
informed relator that the Health, Wellness and Disability Committee ("HWD
Committee") will review his disability application on August 18, 2016. The letter further
advised:
              You have the right to attend the August 18th meeting, with or
              without legal counsel, to present testimony. No additional
              medical evidence will be accepted at the hearing. You are not
              required to attend.

      {¶ 39} 9. By letter dated August 18, 2016, Atkeson informed relator:

              This letter is to advise you that the Health, Wellness and
              Disability (HWD) Committee voted on August 18, 2016, to
              recommend that the Board approve your disability
              application not in the line of duty. The full Board will
No. 17AP-52                                                                      14

              consider the Committee's recommendation                at   the
              October 20, 2016 Board meeting. * * *

              Within ten (10) days of receiving notification of the disability
              committee's recommendations, you may file a request for
              reconsideration. The written request shall be accompanied
              by a statement from the applicant, his or her counsel and/or
              attending physician that the request for reconsideration will
              be based on evidence contrary to the findings of the
              examining physician or the committee.

              Within twenty (20) days of receiving notification of the
              disability committee's recommendations, you must file new
              medical evidence relative to the disabling condition(s)
              considered by the disability committee.

              There is no provision for you to speak before the Board, nor
              are you required to attend. However, Board meetings are
              public meetings, with the exceptions of executive session for
              the purpose of discussing disabilities. Within 10 days after
              the Board meets, you will be notified by certified mail of the
              Board's decision and if applicable, the effective date of the
              disability retirement.

(Emphasis sic.)

      {¶ 40} 10. The record contains a two-page memorandum dated August 18, 2016 to
the disability committee from Atkeson. Atkeson stated:
              Background Information:
              On June 6, 2016, Sergeant Benjamin R. Seabolt, age 31, filed
              an application for disability benefits with HPRS. The
              application was properly submitted and accepted by HPRS
              staff. In his application, Sergeant Seabolt stated the reasons
              for his disability were: L5-S1 disc space collapse and right
              side disc bulge; degenerative end plates on L5-S1 vertebral;
              and facet arthrosis of L5-S1. On his application, Sergeant
              Seabolt indicated his condition occurred in-the-line-of-duty;
              however, he provided no explanation as to why. He recorded
              the date of onset as December 22, 215. There is reference in
              other documentation where he stated his symptoms increase
              due to wearing of the gun belt, prolonged sitting in his patrol
              car, entering and exiting his vehicle, bending at the waist,
              and running.
No. 17AP-52                                                                           15

              Sergeant Seabolt is a graduate of Academy Class #148 which
              began on May 16, 2007, and currently has 9.2 years of
              service.

              Attending Physician: On June 6, 2016, Dr. Christian
              Gedeon (chiropractic) concluded that Sergeant Seabolt was
              totally and permanently incapacitated to perform the specific
              job duties and responsibilities in the employ of the Patrol.
              This is due to several listed back issues. His prognosis was
              that Sergeant Seabolt's condition would not improve without
              surgery. Dr. Bonasso (neurosurgeon) also evaluated Sergeant
              Seabolt and recommended a discogram and surgical
              intervention of discectomy with probable fusion of L5-S1.

              Board Independent Medical Examiner: On July 13,
              2016, Dr. Michael Griesser examined Sergeant Seabolt and
              provided the diagnosis of L5-S1 disc protrusion and
              degenerative disc disease. Dr. Griesser concluded, "It is my
              opinion Mr. Seabolt is totally and permanently disabled
              from working for the Ohio State Highway Patrol as he is
              not able to perform his full job duties." Dr. Griesser also
              opined that Sergeant Seabolt would not be able to fully
              engage in the duties required by the Patrol even after
              surgery.

              HPRS Medical Advisor: On August 1, 2016, Dr. David
              Tanner concurred with Dr. Griesser and concluded that
              Sergeant Seabolt "… is totally and permanently
              incapacitated to perform the job duties of the Ohio State
              Highway Patrol." He further concluded, "… I opine that
              Trooper Seabolt's conditions did not occur in the line of
              duty. The conditions of Trooper Seabolt are congenital and
              degenerative in nature and were pre-existing prior to the
              12/25/15 date. It is also noted that I do not believe there is
              any substantial aggravation of this pre-existing condition as
              the Lumbar MRIs from 2/1/16 and 10/3/13 indicate no
              significant change in comparison.

(Emphasis sic.)

      {¶ 41} 11. On August 30, 2016, by email to HPRS, relator requested
reconsideration.
      {¶ 42} 12. By letter dated September 28, 2016, relator's counsel advised Atkeson of
his representation of relator.   Appended to the letter are several additional medical
reports submitted in support of reconsideration.
No. 17AP-52                                                                             16

          {¶ 43} Appended to the letter is the September 9, 2016 report of Dr. Gideon who
states:
                It is my professional opinion that his pain has been ongoing
                since at least 2013 while working for the Ohio State Highway
                Patrol causing him to have lower back pain with pain down
                his right buttocks and posterior thigh, positive MRI was
                shown, x-rays were shown to have arthritis, degeneration,
                and disc herniation at L5-S1. His pain is directly and casually
                related to his work.

          {¶ 44} Appended to the letter is the September 19, 2016 report of Dr. Bonasso who
states:
                I had the opportunity to talk with Mr. Seabolt. We had a long
                discussion about his disk bulge and collapse at L5-S1. Within
                a reasonable degree of medical probability, meaning more
                likely than not, this gentleman's disk bulging and collapse at
                the L5-S1 level is due to repetitive injury of carrying an over
                22-pound utility belt and getting in and out of a police
                cruiser thousands of times over the course of his career. Not
                having any back problems before early 2013, when the
                repetitive aggravation finally began to take its toll on him.
                The physical activity of getting in and out of a car over and
                over again with the added weight around the waist has
                caused his ultimate disk bulging and collapse.

                He has pain and numbness that radiates down both legs, in
                the lateral aspect of both feet. He has plantar flexor
                weakness in the 4 out of 5 range. He has failed all
                conservative measures.

                In rebuttal to Dr. Ahn, this gentleman more than qualifies
                for a lumbar fusion in that his disk is collapsed down,
                indicating instability. He also has what are noted as modic
                end-plate changes, which also are indicative of micro
                instability and inflammation of the disk space. Given these
                findings and the findings of lumbar disk protrusion, a fusion
                is more than indicated.

                I would also state Mr. Seabolt is permanently and totally
                disabled and cannot return to his job as a police officer.

          {¶ 45} Appended to the letter is the September 1, 2016 single-page report of Jed
Bell, D.O. Dr. Bell opines:
No. 17AP-52                                                                      17

              Mr. Seabolt has been a patient of mine since 2013. He did
              not have pain prior to 2012. MRI imaging does indicate disc
              bulge at the L5-S1 level. I do feel that wearing his gun belt as
              well as getting in and out of his cruiser over the course of
              multiple years (worked 9-10 years for highway patrol) is
              more likely than not the source of his disc bulging and
              associated low back and radiating leg pain. Due to the weight
              of a gun belt this is known to put additional strain on the
              lower back structures and again, is more likely than not, the
              main reason he developed the L5-S1 disc bulge and
              associated pain.

      {¶ 46} Appended to the letter are various progress notes from the doctors,
including Dr. Ying H. Chen.
      {¶ 47} 12. On October 4, 2016, Dr. Tanner issued another report regarding
reconsideration. Dr. Tanner stated:
              I have reviewed the newly submitted medical records of
              Trooper Seabolt for reconsideration of an in the line duty
              disability. Trooper Seabolt entered the Ohio State Highway
              Patrol on 05/16/2000, class of 148.

              The medical records of Dr. Gedeon indicate that Trooper
              Seabolt had been experiencing low back pain since 03/2013.

              [Medical record] report dated 9/1/2016 reviewed from Jed
              Bell DO. Dr. Bell indicates that Trooper Seabolt has been
              following up [with] Dr. Bell since 2013 for pain management.
              [Medical record] initial note from Dr. Bell dated 10/25/2013
              indicates Trooper Seabolt attributes his low back pain from
              his repetitive activity getting in and out of his car at work.

              [Medical record] report from Dr. Chen a Neurosurgeon
              dated 4/11/2014, indicates Trooper Seabolt's low back pain
              "began without any specific accident, injury or fall, although
              he does wear a utility belt as a police officer and does
              frequent bending, lifting, and getting in and out of the car."

              Given the review of the recent medical records submitted,
              diagnostic evaluation to indicate congenital structural
              conditions of Trooper Seabolt's spine, diagnostic evaluation
              to indicated degenerative endplate disease, foraminal
              stenosis, degenerative disc disease, lack of diagnostic MRI
              changes to indicate "substantial aggravation" of pre-existing
              condition (Lumbar MRI's 2013 to 2016) and the medical
              opinion that the probability of an essentially healthy 31 year
No. 17AP-52                                                                          18

              old male having a service belt cause these degenerative
              changes within a 9 year window is medically improbable and
              thus not in the line of duty.

              It is my medical opinion that Trooper Seabolt is and will
              continue to be totally and permanently incapacitated to
              perform the job duties of the Ohio State Highway Patrol.

       {¶ 48} 13. By letter dated October 7, 2016, Atkeson informed relator that the HWD
Committee will hear the request for reconsideration on October 19, 2016. The letter
further advised:
              You have the right to attend the October 19th meeting, with
              or without legal counsel, to present testimony. The disability
              committee will consider only new medical evidence and new
              relevant information submitted in the support of the request
              for reconsideration. No new medical evidence will be
              accepted at the hearing. You are not required to attend.

       {¶ 49} 14. On October 19, 2016, Atkeson updated his August 18, 2016
memorandum to the disability committee. Atkeson wrote:
              HW&D Committee Recommendation: On August 18,
              2016, the HW&D Committee voted unanimously to
              recommend to the board an off-duty disability. On
              August 30,    2016,     Sergeant   Seabolt    requested    a
              reconsideration hearing. On September 29, 2016, HPRS
              received his additional medical information. Dr. Tanner
              reviewed the information and concluded, "Given the review
              of the recent medical records submitted … and the medical
              opinion that the probability of an essentially healthy 31
              year old male having a service belt cause these degenerative
              changes within a 9 year window is medically improbable
              and thus not in the line of duty."

(Emphasis sic.)

       {¶ 50} 15. The October 19, 2016 minutes of the HWD Committee indicate that, on
that date, the committee unanimously voted "[t]o confirm the original recommendation
by the Committee of an off-duty disability."
       {¶ 51} 16. The October 20, 2016 minutes of the HPRS board indicate that the
board unanimously approved "an off-duty disability" for relator.
No. 17AP-52                                                                              19

          {¶ 52} 17. By letter dated October 21, 2016, executive director Atkeson informed
relator:
                This letter is to advise you that the Health, Wellness and
                Disability (HWD) Committee heard your request for
                reconsideration for your disability application on October 19,
                2016, and voted to recommend the HPRS board to approve
                your disability application not-in-the-line-of-duty.

                The full board considered the committee's recommendation
                at the October 20, 2016, board meeting, and voted to
                approve your application for disability retirement not-in-the-
                line-of-duty, effective October 30, 2016. The decision of the
                board is final per ORC 5505.18(A).

(Emphasis sic.)
          {¶ 53} 18. On January 20, 2017, relator, Benjamin R. Seabolt, filed this original
action.
Conclusions of Law:
          {¶ 54} The main issue is whether the August 1 and October 4, 2016 reports of Dr.
Tanner provided the HPRS board with "sufficient evidence" (or "some evidence") to
support its determination that relator is totally and permanently incapacitated for duty in
the employ of the patrol but not in the line of duty pursuant to R.C. 5505.18(A) and Ohio
Adm.Code 5505-3-02(A).
          {¶ 55} The magistrate finds that the reports of Dr. Tanner did provide the HPRS
board with "sufficient evidence" (or "some evidence") to support its determination that
relator is disabled but not in the line of duty.
          {¶ 56} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                  The Pertinent Statutes
          {¶ 57} R.C. 5505.04 vests the general administration and management of the
HPRS with the "state highway patrol retirement board" ("board").
          {¶ 58} R.C. 5505.18(A) provides:
                The medical or psychological examination of a member who
                has applied for disability retirement shall be conducted by a
                competent health-care professional or professionals
                appointed by the board. The health-care professional or
No. 17AP-52                                                                          20

              professionals shall file a written report with the board
              containing the following information:

              (1) Whether the member is totally incapacitated for duty in
              the employ of the patrol;

              (2) Whether the incapacity is expected to be permanent;

              (3) The cause of the member’s incapacity.

              The board shall determine whether the member qualifies for
              disability retirement and its decision shall be final.

                Pertinent Regulations Promulgated by the Board
      {¶ 59} Currently and at the time of the board's final decision at issue here, Ohio
Adm.Code 5505-3-02(A) provides the following definitions:
              (3) "Totally and permanently incapacitated" means a
              disabling condition that physically or mentally totally
              incapacitates a member from the performance of regular
              duty for a period of at least twelve months from the date of
              HPRS's receipt of the completed application packet.

              (4) "In the line of duty" means an illness or injury that
              occurred during or resulted from the performance of official
              duties under the direct supervision of the state highway
              patrol.

              (5) "Not in the line of duty" means an illness or injury that
              did not occur during or result from the performance of
              official duties under the direct supervision of the state
              highway patrol. * * *

              (6) "Disability committee," as referred to in this rule, shall
              mean the "health, wellness, and disability" standing
              committee established pursuant to paragraph (A)(1) of 5505-
              9-08 of the Administrative Code.

              (7) "Medical advisor," as referred to in this rule, shall mean
              the expert physician appointed by HPRS' board who advises
              the disability committee and board during its deliberations
              relating to disability applications.

              (8) "Examining physician" means a physician recommended
              by the medical advisor and approved by the HPRS board.
No. 17AP-52                                                                          21

      {¶ 60} Currently and at the time of the board's final decision at issue here, Ohio
Adm.Code 5505-3-02(C) provides:
              Upon receipt of a completed application packet, HPRS shall
              schedule the applicant for an examination by at least one
              examining physician with expertise in the disabling
              condition(s) listed in the application as recommended by the
              medical advisor, unless the medical advisor recommends it is
              inadvisable to do so.

      {¶ 61} Currently and at the time of the board's final decision at issue here, Ohio
Adm.Code 5505-3-02(D) provides:
              After examining the applicant and reviewing the application
              packet, any medical reports submitted by the applicant, and
              the results of any additional medical testing, the examining
              physician will file a written report with HPRS with the
              following information:
              (1) Whether the member is totally incapacitated for duty in
              the employ of the patrol,

              (2) Whether the incapacity is expected to be permanent, and

              (3) The cause of the member's incapacity.

      {¶ 62} Effective May 18, 2017, the following provision was added to Ohio
Adm.Code 5505-3-02:
              (E) After the examining physician(s)' report(s) is submitted,
              the medical advisor shall review the entire record and file a
              written report with HPRS with the following information:

              (1) A recommendation of whether the applicant should be
              granted disability retirement benefits based on the medical
              advisor's independent review or the record,

              (2) Whether the injury or illness was in the line of duty or
              not in the line of duty,

              (3) Recommended medical treatment and medical reports.

              The medical advisor's report shall be considered an
              independent medical opinion.

                                      Basic Law
No. 17AP-52                                                                              22

       {¶ 63} As long as there is "sufficient evidence" to support the final decision of the
HPRS board regarding relator's application for a disability retirement, this court will not
disturb the decision. State ex rel. Grein v. Ohio State Hwy. Patrol Retirement Sys., 116
Ohio St.3d 344, 2007-Ohio-6667; State ex rel. Burroughs v. Ohio Hwy. Patrol
Retirement Sys. Bd., 2017-Ohio-6923 at ¶ 24; State ex rel. Gerke v. Bd. of Ohio Hwy.
Patrol Retirement Sys., 10th Dist. No. 12AP-732, 2013-Ohio-3624.
                    Analysis: Some Observations Regarding the
                        Reports of Drs. Griesser and Tanner
       {¶ 64} In his report, as previously noted, Dr. Griesser states:

              On evaluation today, Mr. Seabolt reports a several year
              history of low back and lower extremity pain that is ongoing
              in nature and is increased by certain activities. For example,
              he relates wearing his gun belt increases his symptoms as
              does certain other aspects of his usual work duties including
              prolonged sitting in his patrol car, entering and exiting his
              vehicle, and bending at the waist or running.

              Later in his report, Dr. Griesser opines:
              Based on today's evaluation, the diagnoses for Mr. Seabolt
              are L5-S1 disc protrusion and degenerative disc disease at
              L5-S1.

              ***

              It is my opinion Mr. Seabolt is totally and permanently
              disabled from working for the Ohio State Highway Patrol as
              he is not able to perform his full job duties. While the
              proposed fusion surgery will likely relieve most of his pain
              complaints, he would not now or post-fusion surgery
              physically be able to fully engage in duties where he might be
              involved in a physical altercation, would likely require
              lifting/carry[ing]/pushing and pulling restrictions as well as
              restrictions on bending, crawling, kneeling and crouching,
              would not be able to wear the required body armor or gun
              belt, and/or run for longer distances, all of which are, in my
              opinion, inconsistent with the physical demands of his
              current work as described in the listing of his job duties.

       {¶ 65} The magistrate observes that Dr. Griesser fails to opine as to whether or not
relator's injury was in the line of duty. Thus, HPRS's examining physician, Dr. Griesser,
No. 17AP-52                                                                               23

fails to offer a medical opinion on a critical issue of the disability application,
notwithstanding that he noted relator's statement at the July 13, 2016 examination that
wearing his gun belt increases his symptoms as does other aspects of his usual work
duties. Accordingly, the magistrate concludes that Dr. Griesser's report, by itself, does not
provide sufficient evidence to support a board determination as to whether the injury was
in the line of duty.
       {¶ 66} Notwithstanding the flaw in Dr. Griesser's report, Dr. Tanner's August 1,
2016 report arguably cures the problem.
       {¶ 67} That is, in his August 1, 2016 report, Dr. Tanner indicates that he has
reviewed Dr. Griesser's report and concurs with Dr. Griesser's opinion that relator is
totally and permanently incapacitated from performance of his duty as a patrol officer.
Dr. Tanner then offers his own medical opinion that relator's disability "did not occur in
the line of duty." Presumably, Dr. Tanner premised his opinion on the line of duty issue
upon his acceptance of the findings presented in the report of Dr. Griesser since Dr.
Tanner did not examine relator.
       {¶ 68} Here, relator suggests that Dr. Tanner cannot render an opinion that the
injury did not occur in the line of duty because Dr. Tanner did not examine relator.
       {¶ 69} Indicating that "Dr. Tanner only did a 'paper review' of this matter" and
"[h]e did not actually examine Relator," relator concludes in his brief:
               Dr. Tanner's conclusion certainly finds no support in Dr.
               Griesser's Report, the independent medical examiner hired
               by OSHPRS to examine Relator.

(Relator's brief at 15.)

       {¶ 70} Thus, relator suggests that Dr. Tanner was not competent to render an
opinion as to whether the injury occurred in the line of duty because Dr. Tanner did not
examine relator. Relator's suggestion is incorrect. Relator fails to support his suggestion
with citation to any statute or rule promulgated by respondent. Moreover, while current
Ohio Adm.Code 5505-3-02(E) seems to answer relator's argument, the rule became
effective on May 18, 2017 and thus becomes pertinent only if the rule is interpreted as
merely giving clarity to what the rule stated during the administrative proceedings in this
No. 17AP-52                                                                              24

case. Relator's suggestion lacks merit even without invoking current Ohio Adm.Code
5505-3-02(E).
                   Analysis: R.C. 5508.18(A)(3) 's Requirement
                        Regarding the Cause of the Incapacity
       {¶ 71} As earlier noted, R.C. 5508.18(A)(3) provides that the healthcare
professional appointed by the board shall file a written report containing a finding as to
"[t]he cause of the member's incapacity." Also, supplementing the statutory provision,
Ohio Adm.Code 5505-3-02(D) provides that the "examining physician will file a written
report with HPRS" with a finding as to "[t]he cause of the member's incapacity."
       {¶ 72} Dr. Griesser was the examining physician who filed his report with HPRS.
In his report, Dr. Griesser finds:
              It is my opinion Mr. Seabolt is totally and permanently
              disabled from working for the Ohio State Highway Patrol as
              he is not able to perform his full job duties. While the
              proposed fusion surgery will likely relieve most of his pain
              complaints, he would not now or post-fusion surgery
              physically be able to fully engage in duties where he might be
              involved in a physical altercation, would likely require
              lifting/carry[ing]/pushing and pulling restrictions as well as
              restrictions on bending, crawling, kneeling and crouching,
              would not be able to wear the required body armor or gun
              belt, and/or run for longer distances, all of which are, in my
              opinion, inconsistent with the physical demands of his
              current work as described in the listing of his job duties.

       {¶ 73} Here, relator argues that Dr. Griesser violated a statutory and regulatory
requirement that he determine the cause of relator's incapacity. In his brief, relator
argues:
              R.C. 5505.18 requires that the Report of the independent
              medical examiner contain a finding as to the cause of the
              disabling condition. Dr. Griesser's Report, in direct
              contravention of the mandate of R.C. 5505.18(A), contains
              no such finding.

(Emphasis sic.) (Relator's brief at 12.)
       {¶ 74} Relator also points out that Dr. Griesser failed to opine as to whether
relator's incapacity is in the line of duty. Relator seems to suggest that Dr. Griesser's
failure to determine whether the incapacity is in the line of duty is a failure to determine
No. 17AP-52                                                                                25

the "cause" of the disability. The magistrate disagrees. Relator seems to incorrectly
equate the cause of relator's incapacity with the mechanism of injury.            Clearly, Dr.
Griesser was not required by R.C. 5508.18(A) or Ohio Adm.Code 5505-3-02(D) to
determine the mechanism of the injury. Relator has in effect argued unsuccessfully that
the mechanism of injury is the wearing of his service belt with repeated moving into and
out of his patrol vehicle.
                       Further Analysis of Dr. Tanner's Reports
       {¶ 75} In his October 4, 2016 report, Dr. Tanner states that it is "medically
improbable" that wearing a service belt caused the "degenerative changes within a 9 year
window" in an "essentially healthy 31 year old male." According to relator, Dr. Tanner's
statement is improper because it is allegedly "speculation" or "speculation at best."
(Relator's brief at 15; reply brief at 5.)
       {¶ 76} Relator cites no authority to support his assertion that Dr. Tanner was
engaging in impermissible speculation rather than rendering a medical opinion based
upon his medical expertise.
       {¶ 77} Just as relator's experts opined that the wearing of the service belt caused
the degenerative changes that caused the incapacity, Dr. Tanner was also free to render
his own opinion on the matter. Dr. Tanner was not bound by the conclusions of relator's
experts. His opinion clearly presents sufficient evidence on the matter.
       {¶ 78} Relator objects to Dr. Tanner's opinion in his August 1, 2016 report that a
comparison of the two MRI reports shows an absence of "substantial aggravation of this
pre-existing condition." As earlier noted, relator underwent an MRI on October 3, 2013
and again on February 1, 2016.               The February 1, 2016 MRI report contained an
impression of "[n]o significant change since MRI of 10/3/13." In his October 4, 2016
report, Dr. Tanner points to a "lack of diagnostic MRI changes to indicate 'substantial
aggravation' of a pre-existing condition."              According to relator, Dr. Tanner
misunderstands the concept of substantial aggravation of a pre-existing condition. This
court need not address relator's objection to Dr. Tanner's opinion as to substantial
aggravation. Dr. Tanner's substantial aggravation analysis is but one of several bases for
Dr. Tanner's conclusion that relator's disability did not occur in the line of duty.
No. 17AP-52                                                                          26

      {¶ 79} Accordingly, 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).
