[Cite as State ex rel. Willoughby v. Ohio Police & Fire Pension Fund, 2014-Ohio-4772.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio ex rel. David H. Willoughby,             :

                Relator,                               :
                                                                          No. 13AP-569
v.                                                     :
                                                                   (REGULAR CALENDAR)
Ohio Police & Fire Pension Fund,                       :

                Respondent.                            :



                                         D E C I S I O N

                                    Rendered on October 28, 2014


                David H. Willoughby, pro se.

                Michael DeWine, Attorney General, and Jennifer S. M.
                Croskey, for respondent.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

SADLER, P.J.
        {¶ 1} In this original action, relator, David H. Willoughby, requests a writ of
mandamus ordering respondent, Ohio Police and Fire Pension Fund ("OP&F") and its
board of trustees ("the board"), to vacate its order denying his application for a disability
benefit under R.C. 742.38 and to enter an award of disability benefits based on R.C.
742.38(D)(1) or, in the alternative, R.C. 742.38(D)(3).
I. BACKGROUND
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth Appellate District, this
matter was referred to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate concluded that the board
No. 13AP-569                                                                               2


was compelled to grant relator a disability benefit, pursuant to R.C. 742.38(D)(4), as it
existed at times pertinent hereto. Accordingly, the magistrate recommended that this
court grant a writ of mandamus ordering respondent to vacate its order denying relator's
disability application and to enter an order granting relator a disability benefit under R.C.
742.38(D)(4).
II. OBJECTIONS
       {¶ 3} Though respondent has filed objections to the magistrate's decision, no
party has objected to the magistrate's findings of fact. Upon an independent review of the
record, we adopt the magistrate's findings of fact as our own.         With respect to the
magistrate's conclusions of law, respondent presents the following objections:
              [I.] The Magistrate erred in recommending that this court
              issue a writ of mandamus ordering OP&F to vacate its order
              denying disability benefits. "Some evidence" supports OP&F's
              decision.

              [II.] The Magistrate erred in recommending that this court
              issue a writ of mandamus ordering OP&F to enter an order
              granting Willoughby a benefit for a disability not caused or
              induced by the performance of the member's official duties.

III. ANALYSIS
       {¶ 4} To obtain a writ of mandamus, the relator must establish (1) a clear legal
right to the requested relief, (2) a clear legal duty upon the respondent to perform the
requested act, and (3) no plain and adequate remedy in the ordinary course of law.
Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund of Ohio, 49
Ohio St.3d 224, 225 (1990). "Because the final OP&F board decision is not appealable,
mandamus is available to correct an abuse of discretion by the board in denying disability
benefits." State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62,
2011-Ohio-4677, ¶ 28. "A clear legal right to the requested relief in mandamus exists
'where the board abuses its discretion by entering an order which is not supported by
"some evidence." ' " State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio
St.3d 111, 2012-Ohio-46, ¶ 2, quoting Kinsey at 225.
       {¶ 5} Because respondent's objections to the magistrate's decision are
interrelated, we address them together for ease of discussion.         In these objections,
No. 13AP-569                                                                               3


respondent contends that relator's complaint requests a writ of mandamus ordering
respondent to award disability benefits under either R.C. 742.38(D)(1) or (3); therefore,
the magistrate erred in recommending that this court grant a writ of mandamus ordering
respondent to award disability benefits under R.C. 742.38(D)(4).               Additionally,
respondent contends that, because there is some evidence to support its denial of
disability benefits under both R.C. 742.38(D)(1) and (D)(3), this court should deny
relator's request for a writ of mandamus.
       {¶ 6} The magistrate found that the board relied on the report of Dr. Tzagournis,
who was uncertain as to whether relator's condition was permanent or temporary, to deny
relator's request for disability benefits. The magistrate, relying on Tindira, concluded that
disability benefits under former R.C. 742.38(D)(4) could not be denied on the grounds
that the condition is not permanent, and, therefore, the magistrate recommended that
this court issue a writ of mandamus ordering respondent to grant relator a disability
benefit under former R.C. 742.38(D)(4). In objecting to the magistrate's recommendation,
respondent asserts the magistrate erred in providing relief that relator did not seek in this
action. We agree.
       {¶ 7} Relator's complaint asserts he is "permanently and totally disabled as a
result of [his] official duties as a police officer." (Complaint, 15.) Further, the complaint
asserts relator is entitled to annual disability benefits under "R.C. § 742.38(D)(1)," but if
the disabling conditions were not the result of the performance of his official duties as a
police officer, his diagnosis of hypertension and chest pain constitute chronic " 'heart
disease or [any] cardiovascular [or respiratory] disease' " presumed to have been incurred
while performing his official duties. (Complaint at 17, quoting R.C. 742.38(D)(3).) In
conclusion, the complaint requests "[a] writ of mandamus to direct respondent [OP&F] to
award disability benefits to Relator based on Ohio Revised Code § 742.38(D)(1)."
(Complaint, 18.)
       {¶ 8} Similarly, in his brief to the magistrate, relator argued the board abused its
discretion by failing to award disability benefits "in compliance with R.C. 742.38(D)(1)"
and "by failing to recognize that [his] heart disease and/or cardiovascular disease has a
prima facie presumption to have been incurred during the performance of [his] official
duties, in accordance with R.C. 742.38(D)(3)." (Merit Brief, 20, 28.) Relator's merit brief
No. 13AP-569                                                                              4


reiterated that he sought a writ of mandamus compelling respondent "to award him a
duty-related disability pension in accordance with R.C. § 742.38(D)(1), or in the
alternative, * * * a duty-related disability pension in accordance with R.C.
§ 742.38(D)(3)." (Merit Brief, 33-34.)
       {¶ 9} As stated in State ex rel. Union Metal Corp. v. Indus. Comm., 10th Dist. No.
03AP-1247, 2005-Ohio-847, "[w]e cannot grant relief that is not requested." Id. at ¶ 3,
citing State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App.3d 387, 2003-Ohio-
1586, ¶ 37 (11th Dist.) (because the complaint did not seek a writ of mandamus
compelling "reinstatement," the magistrate's recommendation that a writ granting such
relief was rejected); Parker v. Upper Arlington, 10th Dist. No. 05AP-695, 2006-Ohio-
1649 (courts cannot grant relief not requested in complaint); Clough v. Lawson, 11th Dist.
No. 2012-L-118, 2012-Ohio-5831 (an appellate court cannot grant relief not properly
requested in the complaint seeking a writ of mandamus).
       {¶ 10} Because relator's complaint and briefing in this court repeatedly sought
relief under either R.C. 742.38(D)(1) or (3), we find the magistrate's discussion of Tindira
and its interpretation of R.C. 742.38(D)(4) inapplicable to this matter, and we reject said
discussion on that basis. See State ex rel. Bell v. Ohio Police & Fire Pension Fund, 10th
Dist. No. 11AP-628, 2012-Ohio-6153 (rejecting the magistrate's characterization of the
relator's request for benefits as one brought under R.C. 742.38(D)(1) when the complaint
and briefs referenced only R.C. 742.38(D)(2)). Consequently, we reject the magistrate's
recommendation that we issue a writ of mandamus ordering respondent to award a
disability benefit under R.C. 742.38(D)(4).
       {¶ 11} Since the magistrate addressed only R.C. 742.38(D)(4), the magistrate did
not determine whether relator was entitled to a writ of mandamus ordering respondent to
award disability benefits under R.C. 742.38(D)(1) or (3). Thus, we do so now.
       {¶ 12} " 'Under 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.' " Id. at
¶ 9, quoting Kolcinko at ¶ 7. "The board and the Disability Evaluation Panel ("DEP") must
consider 'all competent evidence' and must 'rely upon the medical opinions of the DEP
physicians and OP&F's medical advisor, who have given due consideration of medical and
No. 13AP-569                                                                                    5


other evidence presented to OP&F.' " Id., quoting Ohio Adm.Code 742-3-05(B)(4) and
(6). "Under the appropriate standard of review, the presence of contrary evidence is
immaterial if there is evidence in support of the board's findings of fact." Kolcinko at ¶ 9.
       {¶ 13} Upon review of the record, we conclude the board did not abuse its
discretion in denying disability benefits, pursuant to R.C. 742.38(D)(1) or (3), as its denial
is supported by some evidence. At a minimum, the reports of Drs. Ball and Tzagournis
support the denial, as these reports conclude relator is not disabled and that the alleged
disabling conditions were not caused by the performance of his official duties.
Additionally, the evidence presented here does not support relator's assertion that he is
entitled to disability benefits based on the presumption set forth in R.C. 742.38(D)(3).
       {¶ 14} For all the foregoing reasons, respondent's objections to the magistrate's
decision are sustained. Given our conclusion that relator has failed to establish a clear
legal right to the relief requested, we deny the requested writ of mandamus.
IV. CONCLUSION
       {¶ 15} After review of the magistrate's decision and an independent review of the
record, we adopt the magistrate's findings of fact, but reject the magistrate's conclusions
of law and substitute the same with our own as set forth in this decision. Accordingly, we
sustain respondent's objections and deny the requested writ of mandamus.
                                                                       Objections sustained;
                                                                  writ of mandamus denied.

                            TYACK and CONNOR, JJ., concur.
                        _____________________________
No. 13AP-569                                                                            6


                                     APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                        :
David H. Willoughby,
                                             :
             Relator,                                            No. 13AP-569
                                             :
v.                                                          (REGULAR CALENDAR)
                                             :
Ohio Police & Fire Pension
Fund,                                       :

             Respondent.                     :



                        MAGISTRATE'S DECISION

                              Rendered on June 20, 2014


             David H. Willoughby, pro se.

             Michael DeWine, Attorney General, and Jennifer S. M.
             Croskey, for respondent.


                                     IN MANDAMUS

      {¶16} In this original action, relator, David H. Willoughby, requests a writ of
mandamus ordering respondent, Ohio Police & Fire Pension Fund ("OP&F"), to vacate
its order denying his application for a disability benefit under R.C. 742.38, and to enter
an order granting the application.
Findings of Fact:
      {¶17} 1. In late 2006, relator became Chief of Police for the Village of New
Richmond, Ohio. In September 2008, relator was placed on administrative leave by the
village mayor.
No. 13AP-569                                                                            7


      {¶18} 2. On October 24, 2008, a search warrant was executed on relator's
personal residence, and later charges were brought.
      {¶19} 3. In May 2009, relator entered into a plea agreement in which he was
allowed to plead guilty to misdemeanors in exchange for his dismissal of a lawsuit. He
resigned from the New Richmond Police Department in May 2009.
      {¶20} 4. On June 5, 2009, relator filed a disability benefits application on a form
provided by OP&F.
      {¶21} On the form, relator listed seven disabling conditions described as: (1)
"Hypertension";    (2)   "Post   Traumatic   Stress   [Disorder]";   (3)   "Chest   Pain";
(4) "Insomnia"; (5) "Depression"; (6) "Anxiety"; (7) and "Bilateral Paresthesia."
      {¶22} 5. On July 7, 2009, attending physician Elizabeth A. Doriott, D.O.,
completed a "Report of Medical Evaluation" on a form provided by OP&F. On the form,
Dr. Doriott listed four diagnoses described as: (1) "PTSD"; (2) "Chronic Migraines"; (3)
"HTN"; and (4) "Chest Pain."
      {¶23} On the form, Dr. Doriott indicated by her mark that she certifies that
relator "has a condition of disability from which there is no present indication of
recovery."
      {¶24} Beside the request for an "[e]xplanation," Dr. Doriott wrote:
             Presently, PTSD needs to be addressed. Unable to function
             as officer.

      {¶25} 6. On August 11, 2009, at OP&F's request, relator was examined by
Thomas E. Forte, D.O. Dr. Forte completed a "Report of Medical Evaluation" on a form
provided by OP&F. On the form, Dr. Forte indicated by his mark his agreement with the
following pre-printed statement:
             The member has a condition of disability from which
             there is no present indication of recovery using the
             occupational characteristics developed by the U.S.
             Department of Labor for the positions of police officer -
             government service or fire fighter any industry.

(Emphasis sic.)

      {¶26} 7. Dr. Forte also issued a seven-page narrative report, stating:
No. 13AP-569                                                              8


           MEDICAL HISTORY: Mr. Willoughby is a 38 year-old
           male who worked as a police officer in New Richmond. He
           states that he was in good health until an event on 10/24/08
           when police entered his home and he was handcuffed and
           held at gunpoint while police executed a search warrant. He
           states since that time he has been found to have
           hypertension, has ongoing central retrosternal chest pain,
           and has paresthesias in the ulnar distribution of both hands
           with pain, tingling and numbness with some weakness.

           Condition: Hypertension and chest pain
           II. A. Synopsis: He states the hypertension developed
           approximately 3 months after the 10/24/08 incident.

           ***

           Condition: Paresthesias bilateral hands and fingers
           II. A. Synopsis: He states the symptoms began after being
           handcuffed during the event of 10/24/08. He does not
           describe any treatment for the symptoms and has had no
           electrodiagnostic testing. He reports full range of motion
           with some pain radiating into the ring and small digits of
           both hands.

           ***

           Discussion:

           1) Hypertension and chest pain: The shown reports no
           significant restrictions of activities related to these
           conditions but in general should avoid heavy lifting, limit
           reaching, climbing and above chest activities and would have
           [some] difficulty in physically apprehending suspects.

           2) Insomnia: In this examiner's opinion the insomnia is a
           symptom related to this gentleman's psychiatric conditions
           and should be rated by the psychological examiner.

           ***

           Impact on activities of daily living

           This gentleman would have limitations for heavy lifting,
           should limit reaching, climbing, above chest activities and
           would have some difficulty and [sic] apprehending suspects.
No. 13AP-569                                                                    9


      {¶27} 8. Also in his narrative report, Dr. Forte performed an impairment
evaluation under the American Medical Association's Guides to the Evaluation of
Permanent Impairment—Fifth Edition. Dr. Forte estimated a 12 percent whole person
impairment based upon "[h]ypertension and chest pain."
      {¶28} 9. On August 30, 2009, at the request of OP&F, relator was examined by
Delaney M. Smith, M.D. Dr. Smith completed a "Report of Medical Evaluation" on a
form provided by OP&F. On the form, Dr. Smith indicated by her mark her agreement
with the following pre-printed statement:
             The member has a condition of disability from which
             there is no present indication of recovery using the
             occupational characteristics developed by the U.S.
             Department of Labor for the positions of police officer -
             government service or fire fighter any industry.

      {¶29} 10. Dr. Smith also issued a nine-page narrative report, stating:
             At your request, I have performed a psychiatric evaluation of
             Mr. David Willoughby to offer an opinion on several
             questions that you posed.

             [One] Was Mr. Willoughby's alleged psychological disability
             the result of the performance of his official duties as a police
             officer?

             [Two] Was Mr. Willoughby's alleged psychological disability
             already present when he was hired?

             [Three] Did Mr. Willoughby's alleged psychological disability
             develop after employment but for reasons unrelated to work?

             [Four] If the answer is "Yes," did Mr. Willoughby's
             employment induce or aggravated [sic] the pre-existing or
             concurrently developing psychological disability?

             ***

             Diagnostic Impression:

             Axis I               Major Depressive Disorder Single
                                  episode moderate Anxiety Disorder Not
                                  Otherwise Specified with features of
No. 13AP-569                                                                 10


                               Post Traumatic Stress Disorder and
                               panic disorder

           Axis II             None given

           Axis III            Hypertension, Ulcers, GERD, seasonal
                               allergies, migraines, parasthesias in
                               hands, kidney stones

           Axis IV             Occupational Problems (Career loss),
                               Legal problems, Social embarrassment

           Axis V              58

           The diagnosis of Major Depression is given based on Mr.
           Willoughby's history of one episode of depressed mood all
           day every day. Currently he has decreased interests, poor
           concentration, sleep, energy and appetite, and feelings of
           guilt and worthlessness.

           The diagnosis Anxiety Disorder NOS is given based on Mr.
           Willoughby's having symptoms of Post Traumatic Stress
           Disorder and Panic Disorder which do not fully meet criteria
           for either but are causing clinically significant distress.

           Opinion:

           Is Mr. Willoughby disabled from police work?

           It is my opinion, with reasonable medical certainty, that Mr.
           Willoughby is currently disabled from his work as a police
           officer based on his psychiatric conditions. He is unable to
           safely perform the necessary functions of a police officer as a
           result of his poor energy, poor sleep, and poor concentration
           as well as his distress with reminders of police work
           including sirens and avoidance of reminders of police work.

           [One] Was Mr. Willoughby's alleged psychological
           disability already present when he was hired?

           It is my opinion, with reasonable medical certainty, that Mr.
           Willoughby's psychological disability was not present when
           he was hired as he has no history of depression, anxiety, or
           psychological treatment prior to beginning police work.
No. 13AP-569                                                                 11


           [Two] Was Mr. Willoughby's alleged psychological
           disability the result of the performance of his official duties
           as a police officer?

           It is my opinion, with reasonable medical certainty, that Mr.
           Willoughby's psychological disability was not the direct
           result of the performance of his official duties as a police
           officer as he did not have any symptoms of depression until
           the search of his home October 24, 2008 which occurred
           while he was on administrative leave. While he had some
           minor symptoms related to traumas which had occurred as a
           result of the performance of his official duties prior to 2008,
           the symptoms did not rise to their current level until
           October 24, 2008.

           [Three] Did Mr. Willoughby's alleged psychological
           disability develop after employment but for reasons
           unrelated to work?

           It is my opinion, with reasonable medical certainty, that Mr.
           Willoughby's psychological disability developed after he was
           employed as a police officer and as stated above was
           primarily the result of the trauma he suffered during the
           search on his home while he was on administrative leave.

           [Four] If the answer to number one or three is "Yes," did
           Mr. Willoughby's employment induce or aggravated [sic]
           the pre-existing or concurrently developing psychological
           disability?

           It is my opinion, with reasonable medical certainty, that Mr.
           Willoughby's employment as a police officer did aggravate
           his concurrently developing psychological disability as his
           prior traumatic experiences during the line of duty as a
           police officer, while not resulting in symptomatic PTSD in
           and of themselves likely predisposed him to develop anxiety
           following the events of October 24, 2008 as it is well
           established that cumulative trauma and traumatic history
           are predisposing factors for the development of PTSD.
           Additionally, some of the distressing recollections revolve
           around aspects of his police work not related to
           October 24th, including dreams of guns not firing when he
           needs them to, avoidance of police shows, and distress with
           hearing sirens.
No. 13AP-569                                                                       12


             In Mr. Willoughby's case, it is my opinion, with reasonable
             medical certainty, that as a result of his Major Depression
             PTSD and Panic Disorder with Agoraphobia, Mr. Willoughby
             has a Whole Person Impairment totaling 25%. The basis for
             this opinion is as follows:

             [One] Mr. Willoughby has mild (30%) impairment of his
             activities of daily living as a result of his psychiatric
             symptoms. Mr. Willoughby has poor sleep, cooks and bathes
             less often and is more distracted when driving.

             [Two] Mr. Willoughby has mild (25%) impairment of social
             functioning as a result of his psychiatric symptoms. He has
             withdrawn from friends and family.

             [Three] Mr. Willoughby has marked (40%) impairment of
             his concentration/task completion due to his psychiatric
             symptoms. He has poor memory and concentration.

             [Four] Mr. Willoughby has mild (5%) impairment in his
             ability to tolerate stress due to psychiatric symptoms. Mr.
             Willoughby is less patient.

             In summary, by averaging the four areas of impairment
             (activities of daily living, social functioning, concentration
             and compensation under stress); I arrived at a Whole Person
             Impairment of 25%. A Whole Person Impairment of 25% is
             also consistent with the global assessment of functioning
             (GAF) of 58 that I assigned to Mr. Willoughby.

             I would add that Mr. Willoughby's prognosis for
             improvement to the point of being able to return to work in
             the next year is poor. He has continued to have symptoms for
             almost a year and is unlikely to have significant
             improvement.

(Emphasis sic.)

      {¶30} 11. On September 11, 2009, at the request of OP&F, relator was
interviewed by vocational expert Robert E. Breslin. In his five-page narrative report,
Breslin opined:
             In approximately 1991, he obtained a position as a Police
             Officer (D.O.T. #379.263-014) with the Village of Clayton,
             Ohio. This is classified as skilled and very heavy by the U.S.
No. 13AP-569                                                                   13


           Department of Labor. Mr. Willoughby remained in this
           position for approximately 1 1/2 years, ending in 1993. [H]e
           also worked for Madison Township as a Patrol Officer for
           approximately 3 years and with the city of Bellbrook as a
           Patrol Officer from 1992 through 1998. In 1998 he was hired
           by the city of Trotwood as a Patrol Officer for one year.

           From approximately 2000 through 2003 he worked as a
           Customer Service Representative (D.O.T. # 032.262-010) for
           Lexis-Nexis in Dayton, Ohio. This job is classified as
           sedentary and skilled by the U.S. Department of Labor. Mr.
           Willoughby was responsible for working with customers who
           subscribed to the service, including law firms and law
           students, and assisted them to resolve their problems with
           printers and other external and peripheral equipment.

           In 2003, Mr. Willoughby accepted a position as Police Chief
           (D.O.T. # 375.117-010) of the New Vienna, Ohio Police
           Department. According to the D.O.T. this job is classified as
           sedentary and skilled. New Vienna was a small department
           in Clinton County with 4 full-time and 15 part-time and/or
           auxiliary officers. Mr. Willoughby reportedly spent 80% of
           his time on patrol and 20% on strictly administrative
           functions.

           In December of 2006, Mr. Willoughby accepted the position
           of Police Chief of New Richmond, Ohio. This was also a
           relatively small department, with 5 full-time officers, 3 part-
           time officers and 10 auxiliary officers. Mr. Willoughby
           reportedly split his time evenly between administrative tasks
           and patrol in this position. His last day worked in this job
           was September 22, 2008. He left when he was placed on
           administrative leave.

           ***

           On September 11, 2009, I examined Mr. David Willoughby
           and made the findings previously listed. On the basis of this
           examination and review of the available medical records, I
           make the following judgment:

                  Mr. Willoughby is unable to return to his former
                   position of Police Officer. His physical restrictions and
                   mental restrictions would, if considered separately,
                   both preclude the performance of police work. In
                   combination, they obviously do as well.
No. 13AP-569                                                                          14


                     Mr. Willoughby has developed transferable skills
                      based on his work as a Police Officer and Customer
                      Service Representative, however, the psychological
                      limitations described by Dr. Smith would not allow
                      him to successfully perform the jobs to which these
                      skills might otherwise provided access.

                     Mr. Willoughby has access to some unskilled jobs at
                      the sedentary, light and medium levels of exertions,
                      based upon the combined opinions of Dr. Forte and
                      Dr. Smith.

      {¶31} 12. Ohio Adm.Code 742-3-05(A)(12) provides for a disability evaluation
panel ("DEP") which is established by the board of trustees of OP&F ("board") to make
written recommendations to the board on pending disability applications. The DEP is
comprised of three voting members and at least two non-voting members. The three
voting members are also members of the board.           The non-voting members are
comprised of expert physicians and an expert in vocational evaluations.
      {¶32} 13. On October 14, 2009, A.J. Ball, M.D., completed a "Disability
Evaluation Panel Recommendation" on a form provided by OP&F. Dr. Ball was a non-
voting member of DEP. On the form, Dr. Ball indicated by his mark his agreement with
the following pre-printed statement.
             The member is not permanently incapacitated for the
             performance of duties using the occupational characteristics
             developed by the U.S. Department of Labor for the positions
             of police officer - government service or fire fighter - any
             industry.

(Emphasis sic.)

      {¶33} The form provides the following query to the physician:
             Based on the review of the records submitted to me,
             the following diagnoses and whole person
             impairment evaluations are made:

      {¶34} Thereunder, beside his listing of the "Psych" diagnosis, Dr. Ball indicated a
25 percent whole person impairment. Beside that, Dr. Ball wrote in his own hand:
No. 13AP-569                                                                       15


             Not permanent in my opinion. (Not maximally medically
             improved since no treatment to date by mental health
             professionals.)

      {¶35} Also, beside his listing of "High Blood Pressure" as a diagnosis, Dr. Ball
indicated a 9 percent whole person impairment.
      {¶36} The form provides an additional query to the physician:
             Based on the review of the records submitted to me,
             the final estimated whole-person impairment
             evaluation is:

      {¶37} In the space provided to indicate the percentage, Dr. Ball drew a line
apparently to indicate no percentage.
      {¶38} 14. Also on October 14, 2009, Dr. Ball issued a two-page narrative report.
Dr. Ball extensively discussed the reports of Drs. Forte and Smith.
      {¶39} Regarding the physical conditions addressed by Dr. Forte, Dr. Ball
concluded:
             I do not think that there is adequate documentation to
             support these physical impairments as being disabling,
             either temporarily or permanently.

      {¶40} Regarding the psychological conditions addressed by Dr. Smith, Dr. Ball
opined:
             As I noted on the two-page DEP summary form, without
             treatment by mental health professionals and onset of these
             symptoms in relation to a criminal investigation one year
             ago, I don't see these impairments as being maximally
             medically improved.

      {¶41} 15. On October 20, 2009, vocational expert W. Bruce Walsh, Ph.D.,
completed a "Vocational Recommendation For Disability Evaluation Panel (DEP)
Hearing," on a form provided by OP&F.
      {¶42} The form asks the vocational expert to state:
             Degree of Earnings Capacity Damage (minimal, mild,
             moderate, severe or extreme) based on the criteria set forth
             in Schedule I:

      {¶43} In the space provided, Dr. Walsh wrote "Deferred" in his own hand.
No. 13AP-569                                                                          16


      {¶44} 16. Page two of the form completed by Dr. Walsh on October 20, 2009 is
captioned "Vocational Consultant's Comments After Receipt [o]f [t]he DEP Physician's
Conclusions [a]nd [t]he Oral Discussion [a]t [t]he DEP Meeting."
      {¶45} Thereunder, the form provided the following two queries, and Dr. Walsh
responded in the spaces provided on October 26, 2009:
             [One] Additional factors provided by the DEP
             physicians and the oral discussion at the DEP
             meeting dated October 26, 2009 in making the
             following revised determination of the Degree of
             Earnings Capacity Damage (minimal, mild,
             moderate, severe or extreme) based on the criteria
             set forth in Schedule I:

             a) Determination: No loss in earnings.

             b) Factors: He is not incapacitated.

(Emphasis sic.)

      {¶46} 17. On October 26, 2009, the DEP met to determine a recommendation to
the board regarding relator's application for a disability benefit. On that date, the DEP
issued a statement signed by the DEP chairman:
             Based on the Disability Evaluation Panel Recommendations
             of Dr. Ball, dated October 14, 2009, and the Vocational
             Recommendation for the Disability Evaluation Panel of Dr.
             Walsh, dated October 26, 2009, the Disability Committee
             recommends Mr. Willoughby's initial disability application
             be denied.

      {¶47} 18. By letter dated October 28, 2009, on behalf of the board, Member
Services Director N. Kay Penn informed relator:
             By action of the Board of Trustees, your application for
             disability benefits was disapproved. In reaching its decision,
             the Board relied upon the entire record which includes your
             personal history file and medical evidence obtained in
             conjunction with your application for disability benefits.
             Based upon the medical evidence, and considering your
             training, experience and accomplishments, the Board finds
             that you are not disabled.
No. 13AP-569                                                                      17


       {¶48} 19. Pursuant to Ohio Adm.Code 742-3-05(E), relator timely appealed the
initial determination of the board that denied relator's application for a disability
benefit.
       {¶49} 20. In support of his appeal, relator submitted an undated two-page
narrative report from Dr. Doriott, stating:
              I have read the reports from Dr. Thomas Forte and Dr.
              Delaney Smith related to my patient, David H. Willoughby.

              After re-evaluating his condition, I still believe that he is
              disabled and the likelihood that he will be able to return to
              the workforce in any capacity is severely limited. I do not
              know when and if he will be rehabilitated enough to return to
              any skilled type occupation, but it is clear to me that it will
              not be within the next year. Because of this, I disagree with
              the Disability Evaluation Panel that Mr. Willoughby is not
              incapacitated based on the medical conditions for which I
              am treating him.

              Hypertension
              I agree with Dr. Forte's diagnoses of hypertension. I have
              prescribed the patient Metoprolol, 50 mg, bid, for the past
              several months. I have not seen any significant improvement
              in his blood pressure despite this medication. I will be
              monitoring this condition on an ongoing basis and will
              adjust treatment and medications as needed. I believe Mr.
              Willoughby suffers from a 10% Whole Person Impairment
              based on this condition.

              Chest Pain
              I also agree with Dr. Forte's diagnoses of chest pain. The
              cause of this chest pain is not known, but is likely to be the
              result of Mr. Willoughby's psychiatric condition. I believe
              that Mr. Willoughby suffers from a 2% Whole Person
              Impairment based on this condition.

              Migraine Headaches
              Mr. Willoughby continues to suffer from migraine
              headaches. I do not know the cause of the migraines, but
              attribute it to the patient's depression. I believe that Mr.
              Willoughby suffers from a 2% Whole Person Impairment
              based on this condition.
No. 13AP-569                                                                         18


             Psychiatric Conditions
             I agree with Dr. Smith's diagnosis of Major Depressive
             Disorder. I have prescribed the patient Celexa, 40mg, qd for
             his various psychiatric disorders. The medication has worked
             to slightly lower the patient's feelings of depression and will
             be continued indefinitely.

             I have diagnosed Mr. Willoughby with Post-Traumatic Stress
             Disorder, although Dr. Smith cites it as a symptom of Major
             Depressive Disorder. Mr. Willoughby continues to show
             symptoms of PTSD, including flashbacks, sleep disturbances
             (night terrors), insomnia, avoidance and hyper vigilance.
             Because of his increases [sic] symptoms, including hyper
             vigilance and flashbacks, I have recommended to Mr.
             Willoughby and his family that he remove all firearms from
             his residence. He reports to me that all firearms have been
             sold and he no longer has any type of weapon in his house.

             I also have diagnosed Mr. Willoughby with Generalized
             Anxiety Disorder. His symptoms have caused him to be
             unable to deal with everyday life functions, such as family
             relationships, sexual relationships, and occupational
             potential.

             I have prescribed Mr. Willoughby Ambien 10mg, qd. He
             reports that the Ambien has helped with his insomnia, but
             has not improve[d] the re-occurrences of night errors and
             other sleep disturbances.

             Conclusion
             Based upon my examination and a review of the records for
             this patient, I believe that he has [a] Whole Person
             Impairment of 54% and is incapacitated based on these
             impairments. This disability is not likely to improve and the
             incapacitation has and will continue to restrict his ability to
             work, which will unfortunately cause a substantial loss of
             income to him and his family.

      {¶50} 21. OP&F requested from Breslin, an addendum report following his
review of Dr. Doriott's undated narrative report. On February 18, 2010, Breslin wrote:
             The following materials were included.
                 My original Vocational Evaluation report, dated
                    09/25/2009.
No. 13AP-569                                                                        19


                    Re-Evaluation of Patient David H. Willoughby from
                     Elizabeth A. Doriott, D.O., undated.

              Based upon my review of the above information, I would not
              change my original opinion. In her report of July 7, 2009,
              Dr. Doriott indicated that Mr. Willoughby would be "unable
              to function as an officer of the law." I took this assessment
              into account in my evaluation and came to the same
              conclusion under section 6, Evaluator's Conclusions and
              Recommendations. Dr. Doriott again indicated that Mr.
              Willoughby's "incapacitation has and will continue to restrict
              his ability to work." She does not, however, specifically state
              to what degree Mr. Willoughby will be restricted. In the
              absence of any new information, I have assumed that the
              restriction on work remains the inability to return to his
              accustomed work as a Police Officer.

              If it is Dr. Doriott's intention to indicate that Mr. Willoughby
              is unable to perform any job, then that would obviously
              change my vocational opinion, however, it is not clear to me
              that this is her meaning.

       {¶51} 22. OP&F requested from Dr. Smith an additional report following his
review of Dr. Doriott's undated narrative report. On March 7, 2010, Dr. Smith issued an
additional report, stating:
              I evaluated Mr. Willoughby on August 22, 2009 in order to
              address several questions posed by the Ohio Police and Fire
              Pension Board. I diagnosed him with Major Depressive
              Disorder, Single, Moderate, Anxiety Disorder Not Otherwise
              Specified with features of Post Traumatic Stress Disorder
              and panic disorder with a poor prognosis for future recovery
              to the point of being able to return to work as a police officer.
              At that time I opinioned with a reasonable degree of medical
              certainty that he was disabled from his work as a police
              officer based on his psychiatric conditions, that his mental
              health problems were not caused by his work as a police
              officer and developed after he was employed as a police
              officer but while on administrative leave. I opined that as a
              result of these problems he had a whole person impairment
              of 25%.

              A review of the additional information provided to me did
              not change my opinion with regard to his diagnosis,
              prognosis, or disability. However, it is my opinion with
No. 13AP-569                                                                            20


             reasonable medical certainty, that there is some information
             which warrants a re-evaluation of the whole person
             impairment which I assigned at the time of my examination.
             According to the report of Dr. Elizabeth Doriott, D.O., Mr.
             Willoughby has been experiencing flashbacks which he did
             not report to me. He also had symptoms of such severity that
             Dr. Doriott told his family to remove all firearms from the
             residence which would suggest some concerns regarding
             suicidality which he did not disclose to me. She reported that
             "His symptoms have caused him to be [unable] to deal with
             everyday life functions, such as family relationships, sexual
             relationships, and occupational potential." However, there
             are no specific examples cited of the difficulties or their
             severity. She went on to assign a whole person impairment of
             40% based upon his emotional conditions. If an exact
             percentage is required by the Board I would recommend
             another evaluation to determine the extent of these
             impairments mentioned by Dr. Doriott, to evaluate suicidal
             thoughts as this could change his diagnosis from moderate to
             severe depression, and to examine if his whole person
             impairment is in fact higher th[a]n the 25% I originally
             assigned him.

      {¶52} 23. On May 14, 2010, at the request of OP&F, vocational consultant
Bruce S. Growick, Ph.D., completed page one of a form captioned "Vocational
Recommendation For Appeal Hearing."          Page one of the form has three sections.
Section III asks the vocational consultant to select one of five pre-printed answers to the
query "Degree of Earnings Capacity Damage * * * based on the criteria set forth in
Schedule II." Given a choice of "minimal, mild, moderate, severe or extreme," Growick
selected "minimal."
      {¶53} On May 25, 2010, Growick completed page two of the form. Growick
wrote "minimal" in response to the following two-part query:
             Additional factors provided by the oral testimony as
             well as any new evidence submitted for the appeal
             hearing dated May 25, 2010 in making the following
             revised determination of the Degree of Earnings
             Capacity Damage (minimal, mild, moderate, severe
             or extreme) based on the criteria set forth in
             Schedule II:

             a) Determination:
No. 13AP-569                                                                            21


              b) Factors:

(Emphasis sic.)

       {¶54} 24. Pursuant to Ohio Adm.Code 742-3-05(A)(11), the board appoints a
medical advisor to advise the board during its deliberations of appeals of decisions
relating to disability applications.
       {¶55} 25. Pursuant to Ohio Adm.Code 742-3-05 (A)(11), the board appointed
Manuel Tzagournis, M.D., as medical advisor.
       {¶56} 26. OP&F        provides    a     four-page    form      captioned   "Medical
Recommendation [f]or Appeal Hearings [b]y OP&F              Medical Advisor."     The form
contains five sections captioned as follows:
              Section I - MEMBER INFORMATION
              Section II - INITIAL DETERMINATION
              Section III - OP&F MEDICAL ADVISOR'S REC-
              OMMENDATIONS
              Section IV - INFORMATION MEDICAL ADVISOR
              RELIED ON IN MAKING DETERMINATIONS
              Section V - MEDICAL ADVISOR'S COMMENTS
              AFTER ORAL TESTIMONY AND RECEIPT OF ANY
              NEW EVIDENCE AT THE APPEAL HEARING

(Emphasis sic.)

       {¶57} Initially, at the top of page one, the form instructs:

              Evaluation
              In order to evaluate the medical impairment and any
              resultant disability of the member named in Section I below,
              the recommendations set forth in Section III are based on
              the methods of analysis described in the American Medical
              Association's (AMA) Guides to the Evaluation of Permanent
              Impairment, Fifth Edition and the occupational
              characteristics developed by the U.S. Department of Labor
              for the positions of "police officer (government service)" and
              "fire fighter (any industry)."

              In reviewing the member's records, the OP&F Medical
              Advisor must accept all findings of the examining physicians,
              but not the opinions drawn therefrom. In addition, the OP&F
              Medical Advisor should note all medical reports on record
No. 13AP-569                                                                        22


                that may be relevant to the disability determination being
                made by the OP&F Medical Advisor.

(Emphasis sic.)

          {¶58} Under "Section II - Initial Determination, Dr. Tzagournis states:
                [One] The Following diagnoses and whole person
                impairment percentage was made by the DEP
                physician on October 14, 2009 at the initial
                determination hearing:

                Percentage of the Whole Person Impairment (Combined
                Value) 0%

                Diagnoses:

                (a) High Blood Pressure …
                (b) Atypical Chest Pain …
                (c) Hand Paresthesias …
                (d) Migraine Headaches …
                (e) Psych (MDD, Anx. Dis. NOS) …

(Emphasis sic.)

          {¶59} Under "Section III - OP&F Medical Advisor's Recommendations," Dr.
Tzagournis indicates that relator has a "5%" whole person impairment for
"Hypertension" and a "10% (Temporary)" whole person impairment for "Psychiatric
Symptoms with Features of Depression, Anxiety & Panic Disorder."
          {¶60} Also, under Section III, the form continues with query numbers three,
four, and five.
          {¶61} Under query number three, Dr. Tzagournis indicates that relator has a
"15% whole person impairment (Combined Value)." For his remarks, Dr. Tzagournis
states:
                This individual has developed psychiatric symptoms which
                began in the investigation of problems related to him. He
                had no significant formal treatment of the psychiatric
                disorder prior to some of his examinations. I believe the
                information I reviewed indicates he is disabled for
                performing police work, although the condition can not be
                classified as permanent with great certainty. One of the
                examiners felt that this was a temporary condition and he
No. 13AP-569                                                                         23


             should be reexamined after a period of treatment and
             therapy.

      {¶62} Thereunder, Dr. Tzagournis remarked:
             Explanation: I believe that since he has been having
             symptoms since October of 2009, I am unable to determine
             whether this condition is permanent or temporary.
             Therefore, my recommendation to the Board, prior to the
             actual meeting with this individual, he be considered
             temporarily disordered and he be reexamined after a period
             of treatment of approximately six months.

      {¶63} Under query number five, Dr. Tzagournis indicates by his mark his
agreement with the following pre-printed statement:
             The alleged disability was not caused or induced by the
             member's employment.

             Thereunder, Dr. Tzagournis explains:
             Explanation: I do not find sufficient evidence to declare this
             an on-duty disability. Accordingly, my opinion is the
             disability was not caused or induced by the member's work.

(Emphasis sic.)

      {¶64} Under Section V of the form, which Dr. Tzagournis signed on May 25,
2010, Dr. Tzagournis states:
             The undersigned medical advisor has reviewed on May 25,
             2010 the oral testimony, the evidence referenced in Section
             IV of the Medical Recommendation for Appeal Hearings, as
             well as any evidence handed out during the appeal hearing
             (listed below) in making the recommendations in Section V.

(Emphasis sic.)

      {¶65} Also under Section V of the form, Dr. Tzagournis certifies as follows:
             Physician Certification - On the date set forth below, the
             undersigned, a physician licensed to practice medicine, and
             as medical advisor to the Ohio Police & Fire Pension Fund's
             (OP&F) Board of Trustees certifies that he has considered
             the oral testimony and examined the medical information
             described in Section IV for the appeal hearing of the member
No. 13AP-569                                                                               24


                named in Section I and makes the diagnoses and evaluation
                described herein.

          {¶66} 27. On May 25, 2010, the board heard relator's administrative appeal
pursuant to Ohio Adm.Code 742-3-05(E). Relator appeared before the board and was
sworn.
          {¶67} 28. Thereafter, the board issued its final order captioned "Findings of Fact
on Disability Appeal," dated May 25, 2010. Signed by the board's chair, the board's
May 25, 2010 order states:
                After review of all evidence noted in the Medical
                Recommendation for Appeal Hearings of Dr. Tzagournis,
                dated May 25, 2010, the Vocational Recommendation for
                Appeal Hearing of Dr. Growick [sic], dated May 14, 2010,
                and the additional evidence presented at the appeal hearing
                the Board finds that Mr. Willoughby's appeal of his initial
                disability application be denied.

(Emphasis sic.)

          {¶68} 29. By letter dated May 26, 2010, the board informed relator that his
application was denied.
          {¶69} 30. On July 2, 2013, relator, David H. Willoughby, filed this mandamus
action.
Conclusions of Law:
          {¶70} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
          {¶71} On the date that relator filed his application for a disability benefit, i.e.,
June 5, 2009, and at all subsequent times up to the board's May 2010 decision denying
the application, former R.C. 742.38 provided:
                (C) For purposes of determining under division (D) of this
                section whether a member of the fund is disabled, the board
                shall adopt rules establishing objective criteria under which
                the board shall make the determination. The rules shall
                include standards that provide for all of the following:

                (1) Evaluating a member's illness or injury on which an
                application for disability benefits is based;
No. 13AP-569                                                                25


           (2) Defining the occupational duties of a police officer or
           firefighter;

           (3) Providing for the board to assign competent and
           disinterested physicians and vocational evaluators to
           conduct examinations of a member;

           (4) Requiring a written report for each disability application
           that includes a summary of findings, medical opinions,
           including an opinion on whether the illness or injury upon
           which the member's application for disability benefits is
           based was caused or induced by the actual performance of
           the member's official duties, and any recommendations or
           comments based on the medical opinions;

           (5) Providing for the board to consider the member's
           potential for retraining or reemployment.

           (D) * * *

           (1) As used in division (D)(1) of this section:

           (a) "Totally disabled" means a member of the fund is unable
           to perform the duties of any gainful occupation for which the
           member is reasonably fitted by training, experience, and
           accomplishments. Absolute helplessness is not a prerequisite
           of being totally disabled.

           (b) "Permanently disabled" means a condition of disability
           from which there is no present indication of recovery.

           A member of the fund who is permanently and totally
           disabled as the result of the performance of the member's
           official duties as a member of a police or fire department
           shall be paid annual disability benefits in accordance with
           division (A) of section 742.39 of the Revised Code. In
           determining whether a member of the fund is permanently
           and totally disabled, the board shall consider standards
           adopted under division (C) of this section applicable to the
           determination.

           (2) A member of the fund who is partially disabled as the
           result of the performance of the member's official duties as a
           member of a police or fire department shall, if the disability
           prevents the member from performing those duties and
           impairs the member's earning capacity, receive annual
No. 13AP-569                                                                         26


              disability benefits in accordance with division (B) of section
              742.39 of the Revised Code. In determining whether a
              member of the fund is partially disabled, the board shall
              consider standards adopted under division (C) of this section
              applicable to the determination.

              (3) 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.

              (4) A member of the fund who has completed five or more
              years of active service in a police or fire department and has
              incurred a disability not caused or induced by the actual
              performance of the member's official duties as a member of
              the department, or by the member's own negligence, shall if
              the disability prevents the member from performing those
              duties and impairs the member's earning capacity, receive
              annual disability benefits in accordance with division (C) of
              section 742.39 of the Revised Code. In determining whether
              a member of the fund is disabled, the board shall consider
              standards adopted under division (C) of this section
              applicable to the determination.

       {¶72} In State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d
62, 2011-Ohio-4677, the Supreme Court of Ohio held that former R.C. 742.38(D)(4)
does not restrict benefits to members of the fund with permanent disabilities and,
therefore, this court erred in concluding that former R.C. 742.38(D)(4) does not
authorize benefits for temporary disabilities.
       {¶73} In Tindira, the court issued a writ of mandamus ordering OP&F to grant
the claim of Thomas J. Tindira ("Tindira") for a disability benefit under former R.C.
742.38(D)(4) and to determine the amount of benefits in accordance with R.C.
742.39(C).
       {¶74} In Tindira, the court found that Tindira had established: (1) he is a
member of the fund who had completed five or more years of active service in a police
department; (2) he incurred a disability not caused or induced by the actual
No. 13AP-569                                                                        27


performance of his official duties as a police officer or his own negligence; (3) he is
prevented by the disability from performing those duties; and (4) he has an impaired
earning capacity. Based on those findings, the Tindira court concluded that Tindira had
established his entitlement to a disability benefit.
       {¶75} Effective January 7, 2013, pursuant to S.B. No. 340, the Ohio Legislature
amended former R.C. 742.38 (D), which currently provides:
              As used in this division:

              "Totally disabled" means a member of the fund is unable to
              perform the duties of any gainful occupation for which the
              member is reasonably fitted by training, experience, and
              accomplishments. Absolute helplessness is not a prerequisite
              of being totally disabled.

              "Permanently disabled" means a condition of disability from
              which there is no present indication of recovery.

              (1) A member of the fund who is permanently and totally
              disabled as the result of the performance of the member's
              official duties as a member of a police or fire department
              shall be paid annual disability benefits in accordance with
              division (A) of section 742.39 of the Revised Code. In
              determining whether a member of the fund is permanently
              and totally disabled, the board shall consider standards
              adopted under division (C) of this section applicable to the
              determination.

              (2) A member of the fund who is permanently and partially
              disabled as the result of the performance of the member's
              official duties as a member of a police or fire department
              shall, if the disability prevents the member from performing
              those duties and impairs the member's earning capacity,
              receive annual disability benefits in accordance with division
              (B) of section 742.39 of the Revised Code. In determining
              whether a member of the fund is permanently and partially
              disabled, the board shall consider standards adopted under
              division (C) of this section applicable to the determination.

              (3) A member of the fund who is permanently 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 or
No. 13AP-569                                                                            28


              another examination specified in rules the board adopts
              under section 742.10 of the Revised Code, is presumed to
              have incurred the disease while performing the member's
              official duties, unless the contrary is shown by competent
              evidence. The board may waive the requirement that the
              absence of disease be evidenced by a physical examination if
              competent medical evidence of a type specified in rules
              adopted under section 742.10 of the Revised Code is
              submitted documenting that the disease was not evident
              prior to or at the time of entry into the department.

              (4) A member of the fund who has five or more years of
              service credit and has incurred a permanent disability not
              caused or induced by the actual performance of the
              member's official duties as a member of the department, or
              by the member's own negligence, shall if the disability
              prevents the member from performing those duties and
              impairs the member's earning capacity, receive annual
              disability benefits in accordance with division (C) of section
              742.39 of the Revised Code. In determining whether a
              member of the fund is permanently disabled, the board shall
              consider standards adopted under division (C) of this section
              applicable to the determination.

       {¶76} With respect to R.C. 742.38(D)(4) as it currently reads, the magistrate
notes that, effective January 7, 2013, the legislature added the word "permanent" to
immediately precede the word "disability" in the first sentence of R.C. 742.38(D)(4) and
that the legislature added the word "permanently" to immediately precede the word
"disabled" in the second sentence of R.C. 742.38(D)(4).
       {¶77} Presumably, the legislature's amendment of former R.C. 742.38 was a
response to the Tindira court's holding that interpreted former R.C. 742.38(D)(4) in a
manner that allows a disability benefit for temporary disability.
       {¶78} Presumably, the January 7, 2013 amendment of former R.C. 742.38(B)(4)
is not applicable to relator's situation. That is, relator can claim a benefit under former
R.C. 742.38(B)(4).
       {¶79} To reiterate, the May 25, 2010 board's order states:
              After review of all evidence noted in the Medical
              Recommendation for Appeal Hearings of Dr. Tzagournis,
              dated May 25, 2010, the Vocational Recommendation for
              Appeal Hearing of Dr. Growick [sic], dated May 14, 2010,
No. 13AP-569                                                                       29


             and the additional evidence presented at the appeal hearing
             the Board finds that Mr. Willoughby's appeal of his initial
             disability application be denied.

(Emphasis sic.)

      {¶80} Given the board's reliance upon the reports of Dr. Tzagournis and
Growick, the board was compelled to grant a disability benefit pursuant to former R.C.
742.38(D)(4).
      {¶81} As earlier noted, in his May 24, 2010 report, Dr. Tzagournis states:
             This individual has developed psychiatric symptoms which
             began in the investigation of problems related to him. He
             had no significant formal treatment of the psychiatric
             disorder prior to some of his examinations. I believe the
             information I reviewed indicates he is disabled for
             performing police work, although the condition can not be
             classified as permanent with great certainty. One of the
             examiners felt that this was a temporary condition and he
             should be reexamined after a period of treatment and
             therapy.

             ***

             Explanation: I believe that since he has been having
             symptoms since October of 2009, I am unable to determine
             whether this condition is permanent or temporary.
             Therefore, my recommendation to the Board, prior to the
             actual meeting with this individual, he be considered
             temporarily disordered and he be reexamined after a period
             of treatment of approximately six months.

      {¶82} Also, Dr. Tzagournis indicated by his mark his agreement with the
following pre-printed statement:
             The member is not permanently incapacitated for the
             performance of duties using the occupational characteristics
             developed by the U.S. Department of Labor for the positions
             of police officer - government service or fire fighter - any
             industry.

(Emphasis sic.)
No. 13AP-569                                                                             30


       {¶83} Also, Dr. Tzagournis opined that "the alleged disability was not caused or
induced by the member's employment." (Emphasis sic.)
       {¶84} Clearly, it was the opinion of Dr. Tzagournis that relator is unable to
return to police work, but he was uncertain as to whether the condition is permanent or
temporary. Under the Tindira court's interpretation of former R.C. 742.38(D)(4), the
board cannot deny the disability benefit on grounds that Dr. Tzagournis was unable to
determine whether the condition is permanent or temporary. Under former R.C.
742.38(D)(4), it does not matter whether the condition is permanent or temporary.
Under either circumstance, relator is entitled to a former R.C. 742.38(D)(4) benefit.
       {¶85} As earlier noted, in his May 14, 2010 report upon which the board relied,
vocational consultant Bruce Growick opined that relator has "minimal" earnings
capacity damage. In other words, relator does have some earnings capacity damage
based upon Growick's report.
       {¶86} Moreover, the September 25, 2009 vocational evaluation of Robert
Breslin, as quoted in the findings of fact, establishes that relator meets the requirements
under former R.C. 742.38(D)(4) and that he is a member of the fund who has completed
five or more years of active service in a police department.
       {¶87} Accordingly, for all of the above reasons, it is the magistrate's decision that
this court issue a writ of mandamus ordering respondent to vacate its May 25, 2010
order denying relator's disability application, and to enter an order that grants relator a
disability benefit under former R.C. 742.38(D)(4).

                                          /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).
