[Cite as State ex rel. Wegman v. Ohio Police & Fire Pension Fund, 2016-Ohio-8270.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio ex rel. Donald A. Wegman,               :

                Relator,                              :
                                                                       No. 16AP-112
v.                                                    :
                                                                (REGULAR CALENDAR)
Ohio Police & Fire Pension Fund,                      :

                Respondent.                           :




                                        D E C I S I O N

                                  Rendered on December 20, 2016


                On brief: Jon Goodman Law, LLC, and Jon H. Goodman,
                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, J.
        {¶ 1} Relator, Donald A. Wegman, has filed an original action requesting that this
court issue a writ of mandamus ordering respondent, Ohio Police & Fire Pension Fund
("OP&F"), to reconsider its decision to award him a 12 percent off-duty disability, and to
order OP&F to increase the award to find that his right shoulder condition and
psychological condition are disabling.
        {¶ 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 of this court who issued the appended
decision, including findings of fact and conclusions of law, recommending that this court
deny relator's request for a writ of mandamus. Relator has filed objections to the
No. 16AP-112                                                                             2

magistrate's decision, arguing that the magistrate erred in finding that the file review
reports relied on by OP&F constituted some evidence, and by failing to properly apply
Ohio Adm.Code 742-3-05(B)(6) to the application.
       {¶ 3} Relator's objections are somewhat interrelated and will be considered
together. Relator first challenges the magistrate's determination that the file reviews
conducted by Dr. James Talmadge and Dr. Gregory Jewell constitute some evidence on
which OP&F could rely to deny disability for relator's right shoulder and psychological
conditions.
       {¶ 4} With respect to the shoulder condition, relator contends that OP&F's own
reports from Dr. Merris Young and Dr. Kent Soderstrum support disabling impairment
for the right shoulder. As noted by the magistrate, however, Dr. Talmadge concluded that
relator had 0 percent impairment for his right shoulder based in part on his
determination that Dr. Young's rating for relator's right shoulder was incorrect. The
magistrate agreed with Dr. Talmadge's explanation that Dr. Young failed to consider that
relator's right shoulder measurements were basically equivalent to his left shoulder
measurements. On review, we find that the record contains some evidence to support
OP&F's conclusion that relator's right shoulder was not disabling.
       {¶ 5} With respect to the psychological evidence, relator argues that the only
reports on file are those of his treating mental health professionals and OP&F's report
from Thomas Evans, Ph.D. Relator maintains that the evidence supports an on-duty
disability award of 10 percent. According to relator, Dr. Jewell is not a mental health
professional and he failed to accept the factual findings of the examining physicians. In a
related argument, relator contends the magistrate improperly permitted OP&F to rely on
the opinion of its medical advisor over the opinions of its physicians in contravention of
Ohio Adm.Code 742-3-05(B)(6).
       {¶ 6} The magistrate noted that Dr. Evans examined relator and found a 10
percent impairment for anxiety disorder; Dr. Evans also indicated, however, that relator
may have been exaggerating the extent of his conditions. Dr. Jewell conducted a file
review of the evidence, including the report of Dr. Evans, and concluded that relator's
psychological condition did not impair him.
No. 16AP-112                                                                                  3

       {¶ 7} While relator contends that Dr. Jewell failed to explain his reasoning, OP&F
is not required to state the basis for a denial of disability benefits. State ex rel. Tindira v.
Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62, 2011-Ohio-4677, ¶ 30 ("Public-
employee pension systems and their boards have no duty to state the basis for their
decision denying disability benefits when no statute or duly adopted administrative rule
requires it."). In reaching its determination, OP&F is "permitted to accept the findings" of
physicians "but reject their conclusions." State ex rel. Kolcinko v. Ohio Police & Fire
Pension Fund, 131 Ohio St.3d 111, 2012-Ohio-46, ¶ 9. In a similar vein, " '[u]nder R.C.
742.38 and Ohio Adm.Code 742-3-05, the OP&F board is vested with the exclusive
authority to evaluate the weight and credibility of the medical evidence in determining a
member's entitlement to disability-retirement benefits.' " State ex rel. Bell v. Ohio Police
& Fire Pension Fund, 10th Dist. No. 11AP-628, 2012-Ohio-6153, ¶ 9, quoting Kolcinko at
¶ 7. Further, there is no requirement that OP&F accept or credit the opinion of any
particular physician. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d
327, 2002-Ohio-2219, ¶ 26. With respect to relator's contention that Dr. Jewell was not
competent to render an opinion concerning the psychological condition, the magistrate
noted that "[n]either the Ohio Revised Code nor the Ohio Administrative Codes require
that [respondent] have advisors who specialize in both physical and psychological
disorders." (Mag. Decision at ¶ 49.) On review, we find no error with the magistrate's
determination that the report of Dr. Jewell constitutes some evidence on which OP&F
could rely with respect to the psychological condition.
       {¶ 8} Following an independent review of this matter, we find the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule relator's objections and adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein. In accordance with the
magistrate's recommendation, relator's request for a writ of mandamus is denied.
                                                                        Objections overruled;
                                                                   writ of mandamus denied.

                          DORRIAN, P.J., and TYACK, J., concur.

                               _____________________
                                      APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. Donald A. Wegman,          :

              Relator,                       :

v.                                           :                    No. 16AP-112

Ohio Police & Fire Pension Fund,             :               (REGULAR CALENDAR)

              Respondent.                    :



                         MAGISTRATE'S DECISION

                               Rendered on July 29, 2016



              Jon Goodman Law, LLC, and Jon H. Goodman, for relator.

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


                                    IN MANDAMUS

       {¶ 9} Relator, Donald A. Wegman, has filed this original action requesting this
court issue a writ of mandamus ordering respondent, Ohio Police & Fire Pension Fund
("OP&F"), to reconsider its decision which awarded him a 12 percent off-duty disability,
and ordering OP&F to increase the award and find that his right shoulder condition and
his psychological condition are both work related and are disabling.
Findings of Fact:
       {¶ 10} 1. Relator began working as a firefighter for Anderson Township beginning
in 1997, starting off as a volunteer. In February 2001, he began full time employment as a
firefighter/paramedic for Anderson Township.
       {¶ 11} 2. Relator voluntarily resigned his position on March 1, 2014.
No. 16AP-112                                                                                5


       {¶ 12} 3. In February 2015, relator submitted an application for disability benefits
with OP&F. On his application, relator listed the following disabling medical conditions
which prevent him from performing his job as a firefighter: (1) left knee (April 30, 2014);
(2) cardiac (October 15, 2011); (3) right shoulder (January 12, 2012); (4) vision; (5)
hearing; and (6) his back.       Relator submitted medical records in support of his
application.
       {¶ 13} 4. OP&F had relator examined by Merris T. Young, M.D., who completed a
Report of Medical Evaluation by an OP&F Appointed Physician and authored a report,
both of which are dated March 24, 2015. Dr. Young assessed the following percentage of
impairment of the whole person for relator's conditions:
               Left Knee, 11%
               Heart, 10%
               Right Shoulder, 11%
               Eyes, 5%
               Hearing, 0%
               Lumbar Back, 5%
               Thoracic Back, 0%

       {¶ 14} Dr. Young opined that relator's ability to sit was unrestricted and that he
could stand and walk, each for 0 to 3 hours.          Dr. Young opined that relator was
unrestricted in his ability to lift or carry up to 10 pounds, lift or carry between 10 and 20
pounds for 3 to 5 hours, and lift or carry between 20 and 50 pounds for 0 to 3 hours. He
further opined that relator could push, pull, or otherwise move less than 10 pounds for 5
to 8 hours, 10 to 20 pounds for 3 to 5 hours, and 20 and 50 pounds for 0 to 3 hours.
Relator could occasionally climb stairs, but was precluded from climbing ladders, using
foot controls, crouching, stooping, bending, kneeling, and reaching overhead. Relator
could reach at waist and knee level for 3 to 5 hours a day and floor level 0 to 3 hours a day.
       {¶ 15} In his report, Dr. Young discussed relator's conditions. Dr. Young indicated
that relator first injured his back in 1996 when he was involved in a serious motor vehicle
accident. Relator injured his back again in March 2009 when he fell off the back of a fire
truck, and in November 2013 when he fell down some stairs while at work. Dr. Young
indicated that relator has some back discomfort every day; however, he experiences no
radiation of pain into his lower extremities. Relator injured his right shoulder in 2012,
underwent surgery in 2012, and indicates he has a lack of strength in that shoulder. Dr.
Young indicated that relator has a three-year history of hearing loss and sees well with
No. 16AP-112                                                                             6


glasses, but not well without glasses. Relator informed Dr. Young that, in August 2011, he
experienced chest pain and ultimately learned that he had a supraventricular tachycardia
(SVT). Relator indicates that this condition causes him to become short of breath with
exertion. Relator injured his knee in April 2014, after he had retired. He slipped and tore
his left quadriceps muscle and needed surgery. He informed Dr. Young that he still
participates in therapy two times per week, that wearing a knee brace helps, and that his
knee sometimes gives out and causes him to fall. Dr. Young provided the following
physical findings with regard to relator's right and left shoulders:
               Flexion was 144 degrees to the right and 153 degrees to the
               left. Extension was 34 degrees to the right and 30 degrees to
               the left. Abduction was 138 degrees to the right and 140
               degrees to the left. Adduction was 43 degrees to the right and
               38 degrees to the left. External rotation was 63 degrees on
               the right and 87 degrees on the left. Internal rotation was 50
               degrees on the right and 58 degrees on the left. * * *

               The right shoulder appeared to have some atrophy. Slight left
               scapular winging was elicited. * * * Posterior reaching was
               decreased bilaterally. * * * Right shoulder movements were
               performed in a guarded manner. Palpable crepitus was
               appreciated over the right greater than left shoulder.
               Shoulder strength was normal. Shoulder Shrug was normal
               Drop Arm test was negative. Empty can test was negative.
               Neer's and Hawkins-Kennedy signs for impingement were
               negative bilaterally.

       {¶ 16} Dr. Young opined that, including all the conditions, relator had a 36 percent
whole person impairment.
       {¶ 17} 5. Robert Breslin prepared a vocational evaluation for OP&F and concluded
that relator was disabled from his position as a firefighter/paramedic, and was limited to
sedentary work activity at best.
       {¶ 18} 6. A file review was completed by James Talmadge, M.D., who prepared a
recommendation for the disability evaluation panel and authored a report, both dated
April 29, 2015. Based on his review of the records, Dr. Talmadge determined that only
one of the alleged conditions was disabling, relator's left knee tendon rupture, that this
condition was not duty-related, and that resulted in an impairment of four percent. Dr.
Talmadge opined that relator's right shoulder injury and his lower back injury were both
duty-related and he had a zero percent whole person impairment for the right shoulder
No. 16AP-112                                                                              7


and a five percent whole person impairment for his lower back. Dr. Talmadge opined
further that relator's cardiac condition was neither disabling nor duty-related and resulted
in a ten percent impairment and his hearing and vision conditions were neither disabling
nor duty-related, and did not result in any percent of impairment.          Ultimately, Dr.
Talmadge opined that relator had a four percent whole person impairment due to the
disabling conditions and that he was disabled due to the off-duty injury.
       {¶ 19} In his report, Dr. Talmadge explained that Dr. Young's ratings for relator's
left knee and right shoulder were done incorrectly. With regard to his left knee condition,
Dr. Talmadge explained that it would be a ten percent lower extremity impairment, which
was equivalent to a four percent whole person impairment. With regard to relator's
shoulder, Dr. Talmadge stated that Dr. Young's rating was incorrect because he failed to
consider that relator's left shoulder measurements were:
               [B]asically equivalent (within measurement error), and that
               if both shoulders were rated, as per the instructions * * *,
               both would have the same impairment, so the right shoulder
               would not qualify for an injury related impairment.

(Emphasis sic.)

       {¶ 20} 7. The disability evaluation panel committee recommended that OP&F
grant relator an eight percent impairment.
       {¶ 21} 8. Michael A. Klein, Ph.D., prepared a vocational recommendation dated
May 4, 2015 opining that the impairment was moderate.
       {¶ 22} 9. In a letter dated May 20, 2015, OP&F notified relator that he had been
granted an off-duty disability in the amount of eight percent.
       {¶ 23} 10. Relator appealed indicating that he would present additional medical
information regarding his cardiac, right shoulder, and left knee conditions.           That
information included the August 24, 2015 progress note of Denver Thomas Stanfield,
M.D., indicating that relator's shoulder range of motion was limited secondary to pain,
that while his strength was good below shoulder level, as he reached above his shoulder,
his strength decreased. Dr. Stanfield indicated there was no evidence of instability, but
there were positive impingement signs with cross-body abduction, and crepitus was
noted. Regarding treatment, Dr. Stanfield indicated that aggressive treatment was not
warranted.
No. 16AP-112                                                                                8


       {¶ 24} Relator also included the September 2, 2015 report of Terry Sky
Glendening, Ph.D., his treating psychologist, who opined that relator's work-related
anxiety evolved into post-traumatic stress disorder, that his difficulties were ongoing,
showed no sign of remitting, and compromised his ability to obtain new employment.
       {¶ 25} 11. OP&F referred relator for medical evaluation to W. Kent Soderstrum,
M.D., who completed the report of medical evaluation by an OP&F Appointed Physician
form, and authored a report, both dated October 16, 2015. Dr. Soderstrum opined that
relator's heart condition of SVT resulted in a ten percent whole person impairment, his
right shoulder resulted in a 9 percent whole person impairment, his low back resulted in a
5 percent whole person impairment, and his left knee resulted in a 10 percent whole
person impairment, for a final estimated whole person impairment of 31 percent. Dr.
Soderstrum indicated that relator could sit and stand for 5 to 8 hours a day and walk for 3
to 5 hours a day; was unrestricted in his ability to lift up to 20 pounds, and could lift
between 20 and 50 pounds for 3 to 5 hours a day; was unrestricted in his ability to
push/pull or otherwise move up to 20 pounds and could lift between 20 and 50 pounds
for 3 to 5 hours a day; relator could occasionally climb stairs, but could not climb ladders
nor use foot controls; relator was unrestricted in his ability to handle items and to reach at
waist level, could reach at knee level for 3 to 5 hours a day, and could reach both overhead
and floor level for 0 to 3 hours a day.
       {¶ 26} 12. OP&F also had relator examined by Thomas Evans, Ph.D.                In his
October 23, 2015, Dr. Evans opined that relator's dysthymic disorder resulted in a ten
percent impairment and his anxiety disorder NOS also resulted in a ten percent whole
person impairment for a final estimated whole person impairment of ten percent. Dr.
Evans did note that testing indicated an element of exaggeration in certain complaints
and problems, but that it was to a degree that render the results uninterpretable. Dr.
Evans concluded that both relator's dysthymic disorder and his anxiety disorder were
directly caused by official duties as a firefighter/EMT, and that the dysthymic disorder
was not disabling, but the anxiety disorder was.
       {¶ 27} 13. A vocational recommendation by Bruce S. Growick, M.D., determined
that relator's impairment of earning capacity was moderate.
       {¶ 28} 14. OP&F      medical       advisor,   Gregory   Jewell,   M.D.,   prepared   a
recommendation dated December 15, 2015.                Dr. Jewell opined that relator's left
No. 16AP-112                                                                                9


knee/quadriceps rupture resulted in a six percent impairment which was disabling, that
his cardiac arrhythmia resulted in a nine percent impairment, but was not disabling, that
his right shoulder resulted in a nine percent impairment which is not disabling, and
psychological conditions resulted in a zero percent impairment.
       {¶ 29} In the section of the report which requests additional remarks, Dr. Jewell
noted that there was no evidence of significant treatment for relator's shoulder condition
following his resignation from the department.
       {¶ 30} 15. OP&F prepared findings of fact on disability appeal dated December 15,
2015, granted relator a 12 percent award and further noted that the award was based on
the determinations of Dr. Jewell and the vocational recommendation of Dr. Growick who
opined that relator had a moderate to severe wage loss.
       {¶ 31} 16. In a letter dated December 16, 2015, relator was notified that he had
been granted an award of 12 percent.
       {¶ 32} 17. Thereafter, relator filed the instant mandamus action.
Conclusions of Law:
       {¶ 33} In arguing that OP&F abused its discretion by awarding him a 12 percent
disability, relator asserts that this decision is not supported by some evidence.
Specifically, relator asserts that the medical evidence demonstrates that his right shoulder
injury and his psychological conditions are disabling, and OP&F abused its discretion by
finding otherwise. For the reasons that follow, the magistrate disagrees.
       {¶ 34} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 35} Relator must show by plain, clear, and convincing evidence that he has a
clear legal right to PTD retirement, that OP&F has a clear legal duty to grant him PTD
retirement rather than a permanent partial disability retirement, and that he has no
adequate remedy at law. See State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141
(1967) and State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of
Trustees, 72 Ohio St.3d 62, 64, 1995 Ohio 172 (1995). A clear legal right exists where
OP&F abuses its discretion by entering an order which is not supported by some evidence.
No. 16AP-112                                                                              10


See Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund of Ohio, 49
Ohio St.3d 224 (1990).
       {¶ 36} "Mandamus is an appropriate remedy where no statutory right of appeal is
available to correct an abuse of discretion by an administrative body." State ex rel. Pipoly
v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219. Because the final
OP&F decision is not appealable, mandamus is available to correct an abuse of discretion
by OP&F in denying disability benefits. See, generally, State ex rel. Worrell v. Ohio Police
& Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, ¶ 10. "'An abuse of discretion
occurs when a decision is unreasonable, arbitrary, or unconscionable.'" Id., quoting State
ex rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d 156, 2004-Ohio-2140.
       {¶ 37} "In mandamus proceedings, the creation of the legal duty that a relator
seeks to enforce is the distinct function of the legislative branch of government, and courts
are not authorized to create the legal duty enforceable in mandamus." State ex rel.
Lecklider v. School Emps. Retirement Sys., 104 Ohio St.3d 271, 2004-Ohio-6586, ¶ 23.
Public-employee pension systems and their boards have no duty to state the basis for their
decision denying disability benefits when no statute or duly adopted administrative rule
requires it. See, generally, Pipoly, ¶ 18; Lecklider, ¶ 23.
       {¶ 38} Under R.C. 742.38 and Ohio Adm.Code 742-3-05, OP&F is vested with the
exclusive authority to evaluate the weight and credibility of the medical evidence in
determining a member's entitlement to disability retirement benefits.          State ex rel.
Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio St.3d, 2012-Ohio-46, ¶ 17. OP&F
board and the Disability Evaluation Panel ("DEP") must consider all competent evidence
and must rely on the medical opinions of the DEP physicians and OP&F's medical advisor,
who have given due consideration of medical and other evidence presented to OP&F.
Ohio Adm.Code 742-3-05(B)(4) and (6). OP&F is permitted to accept the findings of
doctors and yet reject their conclusions. Under the appropriate standard of review, the
presence of contrary evidence is immaterial if there is evidence in support of the board's
findings. See State ex rel. Spohn v. Indus. Comm., 115 Ohio St.3d 329, 2007-Ohio-5027.
       {¶ 39} As an initial matter, the magistrate finds these disability cases to be
extremely frustrating. While there is a statutory requirement on the commission to cite
the evidence upon which it relies and provide a brief analysis, there is no statutory
requirement on OP&F to do the same. Ohio's police and firefighters are left wondering
No. 16AP-112                                                                              11


why they are denied disability benefits and their only opportunity to challenge the denial
is by way of a mandamus action. Provided there is some evidence in the record, this court
must find no abuse of discretion. When cursory recommendations by medical advisors
are found to constitute some evidence, Ohio's police and firefighters are done a grave
injustice.
       {¶ 40} Relator first argues that the medical evidence presented establishes that his
right shoulder injury is disabling. Specifically, relator argues that the reports from OP&F
physicians Drs. Young and Soderstrum, and the August 24, 2015 report of Dr. Stanfield,
clearly establish this.
       {¶ 41} Dr. Young determined that relator's right shoulder injury warranted an 11
percent impairment and indicated that relator would be precluded from reaching
overhead. Dr. Young had the opportunity to note whether or not this restriction for
overhead lifting was limited to the right upper extremity or the left upper extremity or
both, yet he failed to do so. With regard to relator's ability to lift, carry, push, pull or
otherwise move items, Dr. Young found that relator could manage up to 50 pounds for 0
to 3 hours and up to 20 pounds for 3 to 5 hours. Based upon those findings, while relator
may have been restricted to sedentary work with regard to his lower extremities, Dr.
Young indicated that he could perform more than sedentary work with his upper
extremities.
       {¶ 42} Turning to the report of Dr. Soderstrum, the magistrate notes that he
assessed a nine percent whole person impairment for the right shoulder condition.
Concerning limitations, Dr. Soderstrum found that relator could lift, carry, push, pull or
otherwise move up to 50 pounds for 3 to 5 hours a day while Dr. Young concluded he
could only do so for 0 to 3 hours a day. Further, Dr. Soderstrum found that relator was
unrestricted in his ability to handle up to 20 pounds while Dr. Young found that he could
only manage such weight for 3 to 5 hours a day. Further, while Dr. Young found that
relator could not reach overhead, Dr. Soderstrum found that he could reach overhead and
at floor level for 0 to 3 hours a day and Dr. Soderstrum specifically indicated that this
limitation was due to the right upper extremity only. Dr. Soderstrum did conclude that
relator was disabled due to his right shoulder and left knee.
       {¶ 43} In making his argument, relator asserts that the reports of Drs. Jewell and
Talmadge do not constitute some evidence upon which OP&F could have relied to find
No. 16AP-112                                                                            12


that his shoulder injury was not disabling. As medical advisor for OP&F, Dr. Jewell
acknowledged that relator had a nine percent impairment for his right shoulder, but,
concluded that injury was not disabling. The only statement which Dr. Jewell made with
regard to relator's right shoulder was to note that there was no evidence that he had
significant treatment after his resignation. This is correct; however, a 2015 MRI reveals a
chronic labral tear and fraying of the infraspinatus tendon.
       {¶ 44} Dr. Talmadge, by comparison, concluded that relator had a zero percent
impairment for his right shoulder injury. Dr. Talmadge based this, in large part, upon his
determination that Dr. Young should not have found any impairment for relator's right
shoulder since relator's right shoulder measurements were basically equivalent (within
measurement error) to his left shoulder measurements.          Relator contends that this
statement is incorrect.
       {¶ 45} Returning to the report of Dr. Young, the measurements given upon
examination for each shoulder include:
               Flexion was 144 degrees to the right and 153 degrees to the
               left. Extension was 34 degrees to the right and 30 degrees to
               the left. Abduction was 138 degrees to the right and 140
               degrees to the left. Adduction was 43 degrees to the right and
               38 degrees to the left. External rotation was 63 degrees on
               the right and 87 degrees on the left. Internal rotation was 50
               degrees on the right and 58 degrees on the left. * * *

               The right shoulder appeared to have some atrophy. Slight left
               scapular winging was elicited. * * * Posterior reaching was
               decreased bilaterally. * * * Right shoulder movements were
               performed in a guarded manner. Palpable crepitus was
               appreciated over the right greater than left shoulder.
               Shoulder strength was normal. Shoulder Shrug was normal
               Drop Arm test was negative. Empty can test was negative.
               Neer's and Hawkins-Kennedy signs for impingement were
               negative bilaterally.

       {¶ 46} Although the above measurements are not identical, the magistrate finds
that Dr. Talmadge was not incorrect when he stated that the measurements were basically
equivalent, within measurement error. Further, both doctors limited relator's ability to
lift overhead (Young: never/Soderstrom: 0-3 hours). Unfortunately, the weight limits for
which doctors are requested to opine do not exceed 50 pounds. As such, none of the
medical evidence indicates whether or not relator could carry a human who weighed more
No. 16AP-112                                                                              13


than 50 pounds. At oral argument, counsel for relator indicated that relator could not
carry a human from a building but there is no corroborating medical evidence.
       {¶ 47} After reviewing the reports of Drs. Jewell and Talmadge, the magistrate
concludes that they do constitute some evidence to support OP&F's award of a 12 percent
disability retirement to relator. The determination of whether or not a member is entitled
to disability benefits is within the exclusive authority of OP&F. See R.C. 3307.62(F). It is
the board, and not the physicians who examine members or review records, that make
this decision. State ex rel. Hulls v. State Teachers Ret. Bd., 113 Ohio St.3d 438, 2007-
Ohio-2337, ¶ 26. It is well established that a retirement board is not required to accept
the views of any particular doctor or doctors, nor is the board required to give greater
weight to a member's treating physician. See Pipoly at ¶ 24, 26. Although relator clearly
does not like the outcome, the magistrate finds there is some evidence in the record to
support OP&F's conclusion that his right shoulder injury was not disabling.
       {¶ 48} Relator also contends that OP&F was required to find that his psychological
condition was disabling. Dr. Evans examined relator and found a ten percent impairment
for the condition of dysthymic disorder and a ten percent impairment for the condition of
anxiety disorder. Ultimately, Dr. Evans opined that the dysthymic disorder did not render
relator incapable of performing his duties as a firefighter, but that his anxiety disorder
did. However, Dr. Evans also indicated that relator may have been exaggerating the
extent of his condition; and yet, he concluded that any exaggeration was not to the degree
that would render the results of his examination uninterpretable. Upon review of the
evidence, Dr. Jewell concluded that relator's psychological condition did not impair him.
       {¶ 49} At oral argument, counsel for relator asserted that Dr. Jewell is not
competent to render an opinion concerning his psychological condition. This may or may
not be true. Neither the Ohio Revised Code nor the Ohio Administrative Codes require
that OP&F have advisors who specialize in both physical and psychological disorders. In
any event, OP&F board members include two representations of police departments, two
representations of fire departments, one retired police officer, one retired firefighter, and
three statutory members with professional investment experience, one appointed by the
Governor, one appointed by the State Treasurer, and one appointed by the Senate
President and Speaker of the House. These men/women have experience and are in a
No. 16AP-112                                                                            14


better position to determine the disability of OP&F members. The report of Dr. Jewell
does constitute some evidence upon which the OP&F could rely.
       {¶ 50} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that OP&F abused its discretion when it awarded him a 12 percent
disability retirement and this court should deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               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).
