[Cite as State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-
Ohio-6513.]




 THE STATE EX REL. WORRELL, APPELLANT, v. OHIO POLICE & FIRE PENSION
                                FUND ET AL., APPELLEES.
  [Cite as State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio
                              St.3d 116, 2006-Ohio-6513.]
Mandamus — R.C. 742.38(D) — Statutory presumption that respiratory ailment
        was incurred while performing official duties does not arise when
        preemployment physical examination revealed evidence of the ailment.
            (No. 2006-0931 ─ Submitted November 15, 2006 ─ Decided
                                   December 27, 2006.)
               APPEAL from the Court of Appeals for Franklin County,
                            No. 05AP-490, 2006-Ohio-1301.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting a limited writ of
mandamus to compel the Ohio Police and Fire Pension Fund and its board of
trustees to issue a new decision granting or denying disability retirement benefits
to the relator, identifying the evidence upon which the board relies, and providing
a reasonable explanation for the decision.
        {¶ 2} In August 2001, appellant, Charles Worrell Jr., applied for
employment as a firefighter/medic with the Mifflin Township Fire Department.
The township had Worrell undergo several medical tests as part of his
preemployment        physical     examination.         On     Worrell’s     October      2001
preemployment chest x-ray report, the cardiologist noted that Worrell is an ex-
smoker and that “[e]xam of the chest demonstrates suggests [sic] evidence of
chronic lung disease with slight accentuation of the lung markings.” An October
2001 pulmonary function report specified that Worrell “had difficulty performing
                            SUPREME COURT OF OHIO




flow-volume loops properly.” On October 8, 2001, a physician medically cleared
Worrell to perform his job duties with the fire department. Worrell worked
sporadically over the next month as a firefighter in Mifflin Township until early
November 2001.
       {¶ 3} Worrell applied for disability-retirement benefits with appellee
Ohio Police and Fire Pension Fund in September 2002.            Worrell listed the
following disabling conditions in his application: left shoulder injury-sprain, neck
sprain, concussion, and contusion of the face, scalp, and neck.         Subsequent
medical reports noted a respiratory impairment allegedly caused by two fires that
he was ordered to fight without an oxygen mask when he was employed as a
Mifflin Township firefighter.
       {¶ 4} On March 29, 2005, appellee Board of Trustees of the Ohio Police
& Fire Pension Fund found that Worrell was not disabled and denied him
disability-retirement benefits. Worrell then filed a complaint in the Court of
Appeals for Franklin County seeking a writ of mandamus to compel the fund and
its board to vacate its findings of fact denying disability-retirement benefits and
issue new findings of fact approving those benefits or, in the alternative, issue a
new decision stating the reasons for denying Worrell’s application.
       {¶ 5} A court-appointed magistrate issued findings of fact and
conclusions of law in November 2005 recommending that the court grant a
limited writ of mandamus ordering the board to issue a decision either granting or
denying Worrell’s disability-retirement benefits, identifying the evidence upon
which the board relied, and providing a reasonable explanation for the board’s
decision. The magistrate concluded that the limited writ was justified because
“the board has failed to identify that evidence upon which it relied and failed to
provide a reasonable explanation for its decision to deny [Worrell’s] disability
retirement.”




                                         2
                                     January Term, 2006




          {¶ 6} Worrell then filed an objection to the magistrate’s decision.
Worrell objected on the basis that “[t]he magistrate erred in failing to address
[his] argument that [the fund’s] disregard of R.C. 742.38(D)(3) constituted a clear
abuse of discretion and, accordingly, that a full writ of mandamus was
appropriate.”
          {¶ 7} The fund and the board also filed an objection to the magistrate’s
decision. They asserted that the magistrate should have recommended affirming
the board’s denial of Worrell’s application for disability-retirement benefits
instead of in effect remanding the case to the board.
          {¶ 8} On March 28, 2006, the court of appeals overruled the parties’
objections and granted the limited writ of mandamus recommended by the
magistrate.
          {¶ 9} This cause is now before the court upon Worrell’s appeal as of
right.1
          {¶ 10} Because the final board decision is not appealable, mandamus is
available to correct an abuse of discretion by the board in denying disability-
retirement benefits.       See, generally, State ex rel. Lecklider v. School Emps.
Retirement Sys., 104 Ohio St.3d 271, 2004-Ohio-6586, 819 N.E.2d 289, ¶ 18.
See, also, Kinsey v. Bd. of Trustees of Police & Firemen’s Disability & Pension
Fund of Ohio (1990), 49 Ohio St.3d 224, 225, 551 N.E.2d 989; State ex rel.
Chime v. Bd. of Trustees of Police & Firemen’s Disability & Pension Fund of
Ohio (1993), 68 Ohio St.3d 17, 19, 623 N.E.2d 32. “An abuse of discretion
occurs when a decision is unreasonable, arbitrary, or unconscionable.” State ex


1
   Appellees did not appeal the court’s issuance of a limited writ, so we do not consider the
propriety of the court of appeals’ holding that the board had a duty to issue a decision stating the
basis for its denial. Cf. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327,
2002-Ohio-2219, 767 N.E.2d 719, ¶ 16-22 (no duty on the part of State Teachers Retirement
System or State Teachers Retirement Board to state the basis for its denial of disability-retirement
benefits; no statute or regulation requires it).




                                                 3
                             SUPREME COURT OF OHIO




rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d 156, 2004-Ohio-2140,
807 N.E.2d 353, ¶ 13.
       {¶ 11} Worrell claims that the court of appeals erred in failing to find that
the board abused its discretion by not applying the presumption set forth in R.C.
742.38(D)(3). Under this provision, “[a] member of the fund who is disabled as a
result of heart disease or any cardiovascular or respiratory disease of a chronic
nature, which disease or any evidence of which disease was not revealed by the
physical examination passed by the member on entry into the department, is
presumed to have incurred the disease while performing the member’s official
duties, unless the contrary is shown by competent evidence.”
       {¶ 12} Consequently, Worrell would be entitled to the presumption that
his claimed respiratory ailment was incurred while performing his duties as a
firefighter for Mifflin Township if no evidence of the disease had been revealed
by the physical examination passed by him on entry to the job. Once the statutory
presumption arises, competent evidence may be introduced to rebut it.
       {¶ 13} As the court of appeals noted, the evidence before the board
included a radiologist’s preemployment report indicating that Worrell is an ex-
smoker and that his chest x-ray demonstrated evidence of chronic lung disease.
This constitutes sufficient evidence to prevent the applicability of the presumption
set forth in R.C. 742.38(D)(3). The court of appeals therefore did not err in
holding that the board did not abuse its discretion in failing to apply this statutory
presumption.     The board did not act in an unreasonable, arbitrary, or
unconscionable manner in so finding.
       {¶ 14} Based on the foregoing, the court of appeals properly rejected
Worrell’s objection to the magistrate’s decision. Accordingly, we affirm the
judgment of the court of appeals.
                                                                 Judgment affirmed.




                                          4
                             January Term, 2006




       MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
                           ____________________
       Charles Zamora, L.L.C., and Charles Zamora, for appellant.
       Jim Petro, Attorney General, and John T. Williams, Assistant Attorney
General, for appellees.
                          ______________________




                                       5
