State ex rel. Wegman v. Ohio Police & Fire Pension Fund (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Wegman v. Ohio Police & Fire Pension Fund, Slip Opinion No. 2018-Ohio-4243.]
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SLIP OPINION NO. 2018-OHIO-4243THE STATE EX REL. WEGMAN, APPELLANT, v. OHIO POLICE & FIRE PENSION
FUND, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Wegman v. Ohio Police & Fire Pension Fund, Slip
Opinion No. 2018-Ohio-4243.]
Disability benefits—Mandamus—Ohio Police & Fire Pension Fund board did not
abuse its discretion in denying certain benefits—Court of Appeals’
judgment affirmed.
(No. 2017-0141—Submitted January 23, 2018—Decided October 23, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 16AP-112,
2016-Ohio-8270.
________________
KENNEDY, J.
{¶ 1} Appellant, Donald A. Wegman, appeals from a judgment of the Tenth
District Court of Appeals denying a writ of mandamus to compel appellee, the Ohio
Police & Fire Pension Fund (the “fund”), to award him on-duty-percentage
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disability benefits for certain injuries that he alleges were sustained on the job.
Because the fund’s board of trustees did not abuse its discretion in denying those
benefits, we affirm the judgment of the court of appeals.
Facts and Procedural History
{¶ 2} Wegman worked for Anderson Township as a firefighter from 1997
until March 1, 2014, and he is a member of the fund, which provides disability
benefits and pensions to its members as well as their spouses, children, and
dependent parents. See R.C. 742.02. On February 23, 2015, he filed an application
seeking disability benefits for various medical conditions, including injuries to his
right shoulder and left knee, heart disease, and depression and anxiety. Except for
the injury to his left knee, which occurred after he resigned, he attributed these
conditions to his occupation.
{¶ 3} Merris T. Young, M.D., examined Wegman and prepared a report
opining that he was permanently disabled. The form instructed Dr. Young to use
the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (“AMA Guides”) as the framework for evaluating permanent
impairments, and referencing tables in the AMA Guides, he estimated Wegman’s
“Whole Person Impairment” to be 36 percent, based on the following disability
percentages:
 Left Knee 11 percent
 Heart 10 percent
 Right Shoulder 11 percent
 Eyes 5 percent
 Hearing 0 percent
 Lumbar Back 5 percent
 Thoracic Back 0 percent
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{¶ 4} The board referred Wegman to vocational expert Robert E. Breslin,
who interviewed Wegman and concluded that he was “unable to return to his former
occupation of Firefighter” and “has significant physical restrictions that will limit
him to a range of sedentary work activity at best.”
{¶ 5} James Talmadge, M.D., reviewed Wegman’s medical records and
prepared a medical report for the board. Concluding that Dr. Young’s rating was
not correct, he determined that the left-knee impairment should have been rated at
4 percent and that the right-shoulder impairment should have been 0 percent. Dr.
Talmadge concluded that Wegman’s back pain, heart condition, and vision
impairment were not disabling and agreed with the disability percentages that Dr.
Young had provided on those conditions. He then calculated Wegman’s Whole
Person Impairment to be 4 percent.
{¶ 6} The board secured a second vocational opinion from Michael A.
Klein, Ph.D., who reviewed the medical and vocational evaluations supplied to him
and characterized the damage to Wegman’s earning capacity as “moderate.”
{¶ 7} The Disability Evaluation Panel reviewed these evaluations,
determined that Wegman’s disability was not caused by Wegman’s employment as
a firefighter, and recommended an 8 percent disability benefit (the 4 percent Whole
Person Impairment calculated by Dr. Talmadge multiplied by 2 for moderate
earning-capacity damage). Relying on “the entire record which includes
[Wegman’s] personal history file and medical evidence obtained in conjunction
with [the] application for disability benefits,” the board granted Wegman off-duty
disability retirement, with an annual benefit of 8 percent of his average annual
salary.
{¶ 8} Wegman appealed the board’s decision based on four conditions:
heart disease, right-shoulder injury, left-knee injury, and “anxiety/depression.” As
supplemental evidence, he submitted a report prepared by Denver Stanfield, M.D.,
who noted that an MRI of Wegman’s right shoulder showed a tearing of the rotator
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cuff, a chronic tear of the superior labrum (the cartilage around the shoulder socket),
arthritis, and capsulitis. Wegman also submitted a report from Terry Glendening,
Ph.D., his treating psychologist, attesting to Wegman’s impairment from
posttraumatic stress disorder from the hazards of firefighting and a hostile
workplace environment. Dr. Glendening also referred to another physician’s report
that job-related stress from Wegman’s employment may have been a factor for his
heart condition. Finally, Wegman provided a letter from retired Battalion Chief
Paul Cunningham describing the verbal and, in one case, physical abuse that
Wegman experienced in the workplace.
{¶ 9} The board arranged for Wegman to be examined by W. Kent
Soderstrum, M.D., who assessed a 10 percent impairment for the heart condition, 9
percent for the right shoulder, 5 percent for the low back, and 10 percent for the left
knee. Relying on the AMA Guides, Dr. Soderstrum estimated that Wegman had a
Whole Person Impairment of 31 percent. Thomas M. Evans, Ph.D., provided the
board a psychological assessment, estimating a 10 percent Whole Person
Impairment caused by Wegman’s dysthymic disorder and anxiety disorder, which
each had a 10 percent impairment score according to the AMA Guides. Breslin,
the vocational expert who had previously evaluated Wegman, reviewed the new
evidence and provided an addendum report maintaining his opinion that Wegman’s
abilities would restrict him to “sedentary and light, unskilled occupations.” Bruce
S. Growick, Ph.D., also submitted a vocational recommendation indicating that
Wegman had sustained moderate wage loss from his disabilities.
{¶ 10} Gregory Jewell, M.D., the board’s medical advisor, issued a
recommendation based on his review of the records. Dr. Jewell’s report contains a
column for “Diagnosis” and a column for “Impairment %,” as well as four lines
designated by the letters “(a),” “(b),” “(c),” and “(d).” In the “Diagnosis” column,
Dr. Jewell wrote “Left-Knee-Quadriceps Rupture,” “Cardiac Arrhythmia,” “Right
Shoulder,” and what appears to be the Greek letter “Ψ” or “psi,” which can be
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shorthand for psychology, psychiatry, or psychological.
See https://en.wikipedia.org/wiki/Psi_(letter)#Use_as_a_symbol (accessed July 30,
2018); Andrew Colman, What is Psychology? 45 (3d Ed.2016). Dr. Jewell assessed
a 6 percent left-knee impairment, a 9 percent impairment due to cardiac arrhythmia,
a 9 percent impairment for the right shoulder, and 0 percent impairment for the
psychological conditions. He concluded that only the knee condition was disabling,
and he estimated Wegman’s Whole Person Impairment to be 6 percent.
{¶ 11} Following a hearing and after stating that it had reviewed the
evidence, the board awarded an off-duty disability benefit of 12 percent of
Wegman’s average annual salary based on Dr. Jewell’s medical recommendation
and Dr. Growick’s vocational recommendation.
{¶ 12} Wegman filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals. He challenged the board’s decision not to award on-duty
disability benefits for his right shoulder and his psychological conditions. The court
of appeals referred the matter to a magistrate, who recommended denying the writ
of mandamus. Wegman filed timely objections, but the court of appeals overruled
the objections and adopted the magistrate’s decision.
{¶ 13} Wegman appealed to this court as of right.
Law and Analysis
{¶ 14} To be entitled to a writ of mandamus, a party must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.
{¶ 15} “Because the final board decision is not appealable, mandamus is
available to correct an abuse of discretion by the board in denying disability-
retirement benefits.” State ex rel. Worrell v. Ohio Police & Fire Pension Fund,
112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380, ¶ 10. An abuse of discretion
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occurs when a decision is unreasonable, arbitrary, or unconscionable. Id. We have
recognized that the board abuses its discretion when it “enter[s] an order which is
not supported by ‘some evidence.’ ” Kinsey v. Police & Firemen’s Disability &
Pension Fund Bd. of Trustees, 49 Ohio St.3d 224, 225, 551 N.E.2d 989 (1990).
“Only if the board’s decision is not supported by any evidence will mandamus lie.”
(Emphasis sic.) State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys., 144
Ohio St.3d 367, 2015-Ohio-3807, 43 N.E.3d 426, ¶ 17.
{¶ 16} Pursuant to R.C. 742.38 and Ohio Adm.Code 742-3-05, the 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. Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio
St.3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 7. And because we are reviewing the
board’s decision for some evidence supporting it, “the presence of contrary
evidence is immaterial if there is evidence in support of the board’s findings of
fact.” Id. at ¶ 9. In conducting this review, we are mindful that the board is
permitted to accept the findings presented in the medical reports yet still reject their
ultimate conclusions, id., and it is not required to explain its decision or even cite
the evidence upon which it has relied, State ex rel. Tindira v. Ohio Police & Fire
Pension Fund, 130 Ohio St.3d 62, 2011-Ohio-4677, 955 N.E.2d 963, ¶ 30.
{¶ 17} The parties do not dispute that Dr. Jewell found that the 9 percent
impairment to Wegman’s right shoulder was not disabling and that Wegman had 0
percent impairment from his psychological conditions. At issue is whether Dr.
Jewell’s finding is “some evidence” supporting the board’s denial of disability
benefits for these conditions. Wegman maintains that Dr. Jewell’s file-review
report is not “some evidence” supporting the board’s decision because he failed to
consider evidence from the examining physicians and failed to explain the
reasoning behind his recommendation, and further, Wegman asserts, Dr. Jewell
failed to check boxes on the form showing that he actually had considered the
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findings presented to him. Wegman notes that the physicians who actually
examined him, including the fund’s examining physicians, reported that the injuries
were disabling. Further, Wegman argues that Dr. Jewell could not rely on Dr.
Talmadge’s file-review report, because Dr. Talmadge was never asked to consider
the new medical reports and the new MRI that Wegman presented in support of his
appeal as it related to his right shoulder. Last, he maintains that Dr. Jewell’s file
reviews cannot be considered “some evidence” supporting the finding that the
psychological conditions were not disabling, because the only evidence
presented—the reports of mental-health specialists—showed that his psychological
conditions were disabling and Dr. Jewell lacked the expertise to contradict their
opinions.
{¶ 18} We have held that a medical expert’s file review can constitute
“some evidence” supporting the denial of disability compensation. State ex rel.
Starr v. Indus. Comm., 114 Ohio St.3d 449, 2007-Ohio-4558, 872 N.E.2d 1227,
¶ 14. Although we recognize that in Starr the expert’s file-review report was
“extensive and meticulously detailed,” id. at ¶ 15, the amount of supporting detail
that the expert provides in the report goes to the weight and credibility of the
expert’s ultimate opinion, and the board, not this court, has “the exclusive authority
to evaluate the weight and credibility of the medical evidence,” Kolcinko at ¶ 7.
The medical opinion expressed, when drawn from a review of all the evidence, is
itself some evidence that the board can rely on in reaching a decision.
{¶ 19} This analysis applies to Wegman’s claim that Dr. Jewell did not
consider reports showing impairment to the right shoulder based on the failure to
note which medical reports on record support his disability determination. Notably,
the instructions on the medical-recommendation form for appeal hearings that Dr.
Jewell completed state:
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In reviewing the member’s records, the [Ohio Police & Fire]
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
that may be supportive to the disability determination being made
by the OP&F Medical Advisor.
(Emphasis added.) Tellingly, the form says that Dr. Jewell should note the
supportive reports, not that he must do so. Nor did it require him to put a checkmark
beside every document he reviewed. Accordingly, the fact that Dr. Jewell failed to
note which reports support his determination that the shoulder injury was not
disabling may affect the evidentiary weight of his medical opinion, but it does not
mean that he failed to review all reports.
{¶ 20} Because there is no evidence that Dr. Jewell failed to consider all the
evidence in the reports, his file-review report is some evidence that supports the
board’s determination that the right-shoulder impairment is not disabling. Dr.
Jewell did not check the box that would have described Wegman’s shoulder as
disabling, even after he did check the box for Wegman’s knee. This is an
expression of a medical opinion drawn from the records and reports. Therefore, the
board’s decision to deny disability benefits for Wegman’s shoulder was supported
by some evidence.
{¶ 21} Regarding the psychological conditions, Dr. Jewell also chose not to
check the box that they were disabling, again expressing a medical opinion.
Further, although Dr. Glendening diagnosed Wegman with posttraumatic stress
disorder, Dr. Evans concluded that Wegman did not meet the criteria for it. Dr.
Evans also concluded that Wegman’s “Dysthymic Disorder does not render him
incapable of performing his duties as a Firefighter/EMT.” He did opine that
Wegman’s anxiety disorder was disabling, but Dr. Evans also reported that during
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the examination, Wegman “was not observed to be anxious.” According to Dr.
Evans, “[Wegman] was cooperative and friendly, and a rapport was easily
established and maintained. * * * He maintained consistent eye contact throughout
the interview. Attention and concentration were good. He was not observed to be
restless or fidgety. Speech was normal for rhythm, rate and volume.” Dr. Evans
also pointed out that “[Wegman] had some difficulties describing these symptoms
[of anxiety]” and noted “some signs indicating that he tended to portray himself in
a negative light in specific areas. As a result, there may be some distortion of the
clinical picture. For example, it is possible that there is an element of exaggeration
in certain complaints and problems.” Although Dr. Evans did not get the
impression that Wegman was exaggerating his symptoms, “the results of the
Personality Assessment Inventory indicate possible exaggeration of his
psychological distress.”
{¶ 22} Given these findings that Wegman did not suffer from posttraumatic
stress disorder, that his dysthymic disorder was not disabling, that he had not
displayed any observable symptoms of anxiety during the examination, and that the
Personality Assessment Inventory results indicated that Wegman might have been
exaggerating his symptoms, Dr. Jewell could form a medical opinion that
Wegman’s psychological conditions were not disabling. That opinion provides
some evidence supporting the board’s determination. And although Wegman
claims that Dr. Jewell was not qualified to provide an opinion on the psychological
conditions because he was not a mental-health specialist, Dr. Jewell could rely on
Dr. Evans’s report. And to the extent that Dr. Jewell reached a different conclusion
from Dr. Evans regarding whether the anxiety disorder was disabling, Wegman
points to no evidence in the record showing that a medical doctor such as Dr. Jewell
is not competent to evaluate the severity of an anxiety disorder.
{¶ 23} Accordingly, some evidence supports the board’s decision, and we
affirm the judgment of the court of appeals denying Wegman the requested writ.
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Judgment affirmed.
O’DONNELL, FRENCH, DEWINE, and GWIN, JJ., concur.
O’CONNOR, C.J., and FISCHER, J., dissent.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for
O’NEILL, J.
_________________
Jon Goodman Law, L.L.C., and Jon H. Goodman, for appellant.
Michael DeWine, Attorney General, and John J. Danish and Mary Therese
J. Bridge, Assistant Attorneys General, for appellee.
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