State ex rel. Burroughs v. Ohio Hwy. Patrol Retirement Sys. Bd. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Burroughs v. Ohio Hwy. Patrol Retirement Sys. Bd., Slip Opinion No. 2017-Ohio-6923.]
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SLIP OPINION NO. 2017-OHIO-6923THE STATE EX REL. BURROUGHS, APPELLEE, v. OHIO HIGHWAY PATROL
RETIREMENT SYSTEM BOARD ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Burroughs v. Ohio Hwy. Patrol Retirement Sys.
Bd., Slip Opinion No. 2017-Ohio-6923.]
Mandamus—Writ sought to compel Ohio Highway Patrol Retirement System Board
to vacate its termination of his disability-retirement benefits—Court of
appeals’ abused its discretion in granting limited writ ordering the board
to conduct a physical-capacity evaluation—Board had no duty to conduct
physical-capacity evaluation prior to terminating disability-retirement
benefits—Court of appeals’ judgment reversed and writ denied.
(No. 2016-0921—Submitted May 2, 2017—Decided July 26, 2017.)
APPEAL from the Court of Appeals for Franklin County, No. 15AP-89,
2016-Ohio-2808.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellee, Jeffrey A. Burroughs, sought a writ of mandamus in the
Tenth District Court of Appeals to compel appellants, Ohio Highway Patrol
Retirement System Board and Ohio Highway Patrol Retirement System
(collectively, “the board”), to vacate their termination of his disability benefits and
pay him the benefits he would have received had it not been for the termination.
The Tenth District granted a limited writ and ordered the board to conduct a
“physical-capacity evaluation” of Burroughs.
{¶ 2} Because we conclude that the board had no legal duty to conduct a
physical-capacity evaluation before terminating Burroughs’s disability benefits and
that the board’s decision was based upon sufficient medical evidence, we hold that
the court of appeals abused its discretion in granting Burroughs a limited writ of
mandamus. Accordingly, we reverse the court of appeals’ judgment and deny the
writ.
Background
{¶ 3} Burroughs, a state trooper, began having neck pain in 2006 or 2007.
In May 2010, an MRI showed evidence of “multiple level spondylitic disc
protrusion and impingement” in his cervical spine “with disc protrusions and
stenosis.” To address these issues, Gregory Mavian, D.O., performed a “multiple
level cervical discectomy and fusion” in September 2010.
{¶ 4} Two months later, Burroughs applied for disability-retirement
benefits. He submitted evidence from Dr. Mavian, who opined that Burroughs was
“totally incapacitated” from performing his duties as a state trooper and that his
disability was permanent. Dr. Mavian indicated that his primary concern was
Burroughs’s vulnerability to neck trauma. Two additional doctors examined
Burroughs and opined that he was not able to perform his duties as a state trooper.
{¶ 5} Effective April 28, 2011, the board approved Burroughs’s disability-
retirement application.
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{¶ 6} In conjunction with the board’s annual disability evaluation,
Burroughs submitted new evidence from Dr. Mavian in May 2013. Dr. Mavian
opined that Burroughs was unable to return to work and was permanently disabled.
The board’s medical consultant, Dr. Earl Metz, M.D., reviewed the submission and
concluded that Burroughs’s disability was ongoing.
{¶ 7} However, in 2014, the board learned that Burroughs had completed
an athletic event called “Savage Race Ohio 2014” in under two and a half hours.
The record contains a brochure describing this event as “an intense 5-7 mile
obstacle run with 25 world class obstacles, mud, fire, and barbed wire.” It indicates
that the race is “extreme,” designed to “push your limits,” and filled with “insane
obstacles” on the “gnarliest terrain available.”
{¶ 8} In light of this information, the board required Burroughs to submit to
an independent medical examination with a board-selected physician, Dr. Nancy
Vaughan. After physically examining Burroughs, Dr. Vaughan reported:
Examination of the cervical spine revealed a scar from
previous surgery. There was no tenderness to palpation at the
cervical, thoracic, or lumbar region. There was no scapular winging.
There was no muscle atrophy about the shoulder region.
Examination of the upper limbs did not reveal any muscle
atrophy. There was no edema. Light touch sensation was intact
throughout the upper limbs. There was no weakness on manual
muscle testing. Reflexes were symmetric. He had full range of
motion of the shoulders. * * * He had normal muscle tone. There
were calluses on his palms. * * * There was no evidence of
decreased coordination.
Light touch sensation was intact throughout the lower limbs.
There was no weakness on manual muscle testing. Reflexes were
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symmetric. There was no muscle atrophy in the thighs, calves, or
feet. He had full range of motion of the hips and knees.
Dr. Vaughan concluded that Burroughs displayed “no evidence” of spinal injury
and described him as “fully recovered” and no longer disabled.
{¶ 9} With regard to the question whether Burroughs was totally disabled
from his job as a state trooper, Dr. Vaughan declared that Burroughs was
“[a]pparently * * * fully recovered from his cervical decompression and fusion.”
She noted the evidence about the 2014 Savage Race and concluded: “Based on the
fact that he was able to complete this vigorous event and looking at his job
description provided, it is my medical opinion that at this point in time he has
recovered and he could physically perform his assigned duties as a highway
patrolman.”
{¶ 10} The board’s medical consultant, Dr. David A. Tanner, reviewed
Burroughs’s file and Dr. Vaughan’s report and agreed with Dr. Vaughan’s findings
and recommendation. The board notified Burroughs of its decision to terminate his
disability-retirement benefits effective August 21, 2014.
{¶ 11} Burroughs appealed. In support of his appeal, he submitted
examination reports from Dr. Eric Legg and Dr. Mavian. Dr. Legg stated that he
“would not recommend return to full duty work as a police officer due to his lack
of range of motion of his cervical spine and the potential for significant injury to
his fused cervical spine in the event of a physical confrontation.” Dr. Mavian
opined that Burroughs “should not participate in any law enforcement activities so
as to risk a serious injury and recurrent symptoms of his cervical spine.” Dr.
Mavian further recommended “a physical capacity evaluation in a structured formal
ma[nn]er to assess his physical abilities.”
{¶ 12} Dr. Tanner reviewed the new evidence and agreed with Dr. Mavian’s
recommendation that Burroughs receive a physical-capacity evaluation, stating,
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“This testing outcome will provide additional information as to the functional
abilities of Mr. Burroughs with regard to the duties of a State Highway
Patrol[man].”
{¶ 13} But the board did not refer Burroughs for a physical-capacity
evaluation. Instead, on October 16, 2014, it upheld its prior decision to terminate
disability-retirement benefits.
{¶ 14} On February 9, 2015, Burroughs filed a complaint for a writ of
mandamus in the Tenth District Court of Appeals seeking an order compelling the
board to vacate its termination of his disability benefits and pay him the benefits he
would have received had it not been for the termination. The case was referred to
a magistrate, who recommended that the writ be denied:
[B]y its very description, the Savage Race is not a controlled
environment. Relator’s participation posed the threat of damage to
his neck and constitutes some evidence that, following surgery, his
prognosis for improvement was indeed good. Based upon relator’s
ability to participate in such an event and the report of Dr. Vaughan,
the magistrate finds that the board did not abuse its discretion when
it decided to terminate relator’s disability [benefits], and this court
should deny his request for a writ of mandamus.
2016-Ohio-2808, ¶ 44.
{¶ 15} The court of appeals adopted the magistrate’s findings of fact but
modified the conclusions of law and granted Burroughs a “limited writ of
mandamus for the purpose of completing a physical capacity evaluation to
determine whether there is some evidence that relator could physically perform all
of his assigned duties as a state trooper.” (Emphasis sic.) Id. at ¶ 10.
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Analysis
Duty to Conduct Physical-Capacity Evaluation Prior to Termination of Benefits
{¶ 16} In its first proposition of law, the board contends that it has no
statutory or regulatory duty to conduct a physical-capacity evaluation prior to
terminating disability-retirement benefits. Thus, the board argues, the court of
appeals abused its discretion when it impermissibly created the legal duty upon
which it based its limited grant of a writ of mandamus. We agree.
{¶ 17} Generally, a member of the Ohio Highway Patrol Retirement System
is eligible for disability retirement if the member “becomes totally and permanently
incapacitated for duty in the employ of the state highway patrol.” R.C. 5505.18(A).
In determining whether this standard is met, the board “shall consider the written
medical * * * report, opinions, statements, and other competent evidence.” Id.
Under R.C. 5505.18(G), the board also has sole authority to create rules to facilitate
the disability-retirement process “including rules that specify the types of health-
care professionals the board may appoint.”
{¶ 18} The board has adopted administrative rules providing that it “shall
* * * [s]chedule a medical examination with an examining physician recommended
by the medical advisor” if the medical advisor “determines the benefit recipient
may no longer be disabled.” (Emphasis added.) Ohio Adm.Code 5505-3-03(C)(2).
The rules further provide that the board may request that the benefit recipient
“undergo a medical examination if information is received at any time which
indicates the benefit recipient may no longer be eligible for disability benefits.”
Ohio Adm.Code 5505-3-03(F). The board “shall review the examining physician’s
report and if it concurs with the examining physician’s certification that the benefit
recipient no longer meets the disability standards set forth in section 5505.18 of the
Revised Code, the disability benefits shall terminate.” Ohio Adm.Code 5505-3-
03(C)(3).
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January Term, 2017
{¶ 19} “It is axiomatic that 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.” (Emphasis deleted.) State ex rel. Pipoly v. State
Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719,
¶ 18. “A court must give due deference to the agency’s reasonable interpretation
of the legislative scheme.” Northwestern Ohio Bldg. & Constr. Trades Council v.
Conrad, 92 Ohio St.3d 282, 287, 750 N.E.2d 130 (2001).
{¶ 20} In light of this standard, we hold that the court of appeals abused its
discretion in ordering the board to conduct a physical-capacity evaluation of
Burroughs and reconsider its termination of his benefits. When it received
information indicating that Burroughs may no longer be eligible for disability
benefits, the board was entitled to ask him to submit to an independent medical
examination. The board also had the authority to terminate Burroughs’s benefits if
it concurred with the examining physician’s certification that Burroughs was no
longer “totally and permanently incapacitated for duty.” Ohio Adm.Code 5505-3-
03(C)(3) and R.C. 5505.18(A).
{¶ 21} In so holding, we reject Burroughs’s argument that the limited writ
was appropriate and is supported by this court’s decisions affirming appellate
courts’ “use of limited writs of mandamus in analogous contexts.” In support of
this argument, he cites State ex rel. Worrell v. Ohio Police & Fire Pension Fund,
112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380; State ex rel. Posey v. Indus.
Comm., 12 Ohio St.3d 298, 466 N.E.2d 548 (1984); and State ex rel. Pontillo v.
Pub. Emps. Retirement Sys. Bd., 98 Ohio St.3d 500, 2003-Ohio-2120, 787 N.E.2d
643. However, in Worrell, we specifically declined to “consider the propriety of
the court of appeals’ holding that the [Ohio Police and Fire Pension Fund’s board]
had a duty to issue a decision stating the basis for its denial,” because the board
failed to appeal the judgment granting the limited writ. Id. at ¶ 9, fn. 1.
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{¶ 22} In Posey, we granted a limited writ of mandamus to require the
Industrial Commission to perform further medical evaluations because the record
did not “aid the commission in determining the validity of [the] appellant’s
application for workers’ compensation benefits.” Id. at 301. In the workers’
compensation context, “there must be a causal connection between an injury arising
out of and in the course of a worker’s employment and a claimed disability.” Id. at
300. And because none of the four medical reports in the commission’s record
contained an opinion as to whether the workplace injury the appellant had sustained
continued “to cause him to be temporarily and totally disabled,” id., we held that
the commission had abused its discretion when it denied benefits. Accordingly, the
limited writ was justified in that case because the commission’s decision was not
based on sufficient evidence.
{¶ 23} In Pontillo, we declined to order a limited writ to compel the Public
Employees Retirement System Board to consider additional medical evidence that
the appellant had submitted after the administrative-appeal period had elapsed. Id.
at ¶ 25, 34 (explaining that Pontillo had an adequate remedy in the ordinary course
of law through administrative appeal and noting that the fact that he had failed to
submit his evidence within the applicable time period did not “render the remedy
inadequate”). Therefore, not one of the three decisions cited by Burroughs supports
the court of appeals’ judgment in this case.
Termination of Disability-Retirement Benefits
{¶ 24} In its second proposition of law, the board contends that its decision
to terminate Burroughs’s disability-retirement benefits was supported by sufficient
evidence. According to the board, the court of appeals abused its discretion when
it independently reviewed and judged the weight and credibility of the medical
evidence and determined that the board’s evidence was insufficient to support the
board’s decision. For the reasons below, we agree.
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January Term, 2017
{¶ 25} A benefits determination, even when there are facts in dispute, “is
within the final jurisdiction of the commission, subject to correction by action in
mandamus only upon a showing of an abuse of discretion.” State ex rel. Crosby v.
Dept. of Mental Retardation & Dev. Disabilities, 38 Ohio St.3d 179, 527 N.E.2d
812 (1988). “The quantum of evidence necessary to support the retirement-system
board’s decision is not a heavy one.” State ex rel. Nese v. State Teachers Retirement
Bd., 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 26.
{¶ 26} The board’s decision to terminate Burroughs’s benefits was based
on the opinions of both Dr. Vaughan, who performed an independent medical
examination of Burroughs, and the board’s medical adviser, Dr. Tanner, who
agreed with Dr. Vaughan’s opinion. The board also considered the evidence that
Burroughs had participated in the Savage Race in 2014.
{¶ 27} At the time of Dr. Vaughan’s exam, nearly four years had passed
since Burroughs’s spinal surgery. According to her report, he complained of “achy
pain in the neck, numbness and tingling in the upper limbs and left lower limb” and
scored his “intense pain” as a three on a ten-point scale. But upon physical
examination, Dr. Vaughan found that he displayed “no tenderness to palpation at
the cervical, thoracic, or lumbar region,” “no muscle atrophy about the shoulder
region,” “no weakness on manual muscle testing,” and a “full range of motion of
the shoulders.”
{¶ 28} She noted that Burroughs told her that he still had screws and steel
in his neck and therefore was unable to perform his duties as a highway patrolman.
Dr. Vaughan also reviewed the job duties and responsibilities of a state trooper and
described them in the report: “[H]e must wear a gun belt, subdue violators, operate
a patrol car, wear a seatbelt, assist in rescuing injured persons, climb over obstacles,
vehicles, and rough terrain, run after fleeing violators, [and] lift heavy objects.”
{¶ 29} In her report, Dr. Vaughan discussed Burroughs’s participation in
the 2014 Savage Race, noting that the race’s obstacle course required participants
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to “jump[] into ice water baths, sprint[] uphill through a sea of tires, climb[] over
an 8-foot wall, run[] through thick, shoe-sucking mud, carry[] a log or sand bag,
jump[] off of a building into deep water, jump over rows of fire, [and] low crawl
through mud.”
{¶ 30} Based upon her physical examination of Burroughs and her review
of the state-trooper job duties and responsibilities, Burroughs’s past medical
history, and Burroughs’s description of his current condition, Dr. Vaughan
concluded:
Apparently he is fully recovered from his cervical
decompression and fusion. No myelopathic findings on
examination today. According to the records he was able to
participate in a very rigorous event called The Savage Race of Ohio.
* * * Based on the fact that he was able to complete this vigorous
event and looking at his job description provided, it is my medical
opinion that at this point in time he has recovered and he could
physically perform his assigned duties as a highway patrolman.
On a separate form provided by the board, Dr. Vaughan checked the box indicating
that Burroughs “is not totally and permanently incapacitated [as defined in Ohio
Adm.Code 5505-3-02] for duty with the Ohio State Highway Patrol.” (Underlining
sic.)
{¶ 31} The board’s medical adviser, Dr. Tanner, reviewed the report and in
a memo to the board stated: “I have reviewed the [independent-medical-
examination] report by Dr. Vaughan and concur with her findings and
recommendations.” He specifically noted that during Dr. Vaughan’s physical
examination, Burroughs demonstrated that he had a normal range of motion and
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Dr. Vaughan found no tenderness to any area of his spine or muscle atrophy in his
shoulders or upper or lower limbs.
{¶ 32} Dr. Vaughan’s independent medical examination and report and Dr.
Tanner’s agreement with her assessment constitute “some evidence” supporting the
board’s decision in this case. See State ex rel. Woodman v. Ohio Pub. Emps.
Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-3807, 43 N.E.3d 426, ¶ 17 (“The
[retirement] board abuses its discretion—and a clear right to mandamus exists—if
it enters an order that is not supported by some evidence”); State ex rel. Grein v.
Ohio State Highway Patrol Retirement Sys., 116 Ohio St.3d 344, 2007-Ohio-6667,
879 N.E.2d 195, ¶ 9 (“As long as there is sufficient evidence to support the
retirement-system board’s decisions, we will not disturb them”). And the evidence
regarding Burroughs’s participation in the Savage Race was “other competent
evidence” that the board was required to review in determining whether
Burroughs’s benefits should be continued. See R.C. 5505.18(A) (the board “shall
consider the written medical or psychological report, opinions, statements, and
other competent evidence”).
{¶ 33} Nevertheless, Burroughs contends that the court of appeals was
correct when it found that his “participation in the race is not evidence sufficient to
demonstrate he could perform the duties of a state trooper.” 2016-Ohio-2808 at
¶ 5. In finding that the board’s decision was not supported by sufficient evidence,
the court of appeals emphasized that
[t]he Savage Race description contained in the record, and Dr.
Vaughan’s more detailed summary description of the race, may
constitute some evidence that relator could perform some duties of
a state trooper. However, the descriptions do not constitute some
evidence that full participation in the race would equate with relator
being able to perform all duties of a state trooper.
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(Emphasis sic.) Id. However, this passage demonstrates that the court focused on
the report’s description of the race and virtually ignored Dr. Vaughan’s
independent-medical-examination findings. In doing so, the court of appeals
impermissibly weighed the credibility of the evidence and substituted its opinion
for that of the board. The evidence of Burroughs’s participation in the race was but
one component of the evidence supporting the board’s benefits determination. By
virtually ignoring Dr. Vaughan’s assessment and Dr. Tanner’s agreement with that
assessment, the court of appeals abused its discretion.
{¶ 34} Burroughs argues that the board “ignored the findings of its own
medical advisor and ignored the previous finding of Dr. Wolf [sic] that Mr.
Burroughs was indeed permanently incapacitated.” Burroughs was examined by
Dr. Claire Wolfe at the board’s request in 2010, within four months after his spinal
surgery. At that time, she opined that despite the success of the surgery, Burroughs
“would not be able to fulfill all of the requirements of a patrol officer, especially
for responding to emergencies and dealing with perpetrators.” Contrary to
Burroughs’s assertion, the board was not required to accept the medical opinion of
his treating physician or one of the consultative physicians over the opinion of a
different independent medical examiner. State ex rel. Cydrus v. Ohio Pub. Emps.
Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, 938 N.E.2d 1028, ¶ 30. And
the fact that the record contains medical opinions that contradict Dr. Vaughan’s
medical opinion is inconsequential. State ex rel. Am. Std., Inc. v. Boehler, 99 Ohio
St.3d 39, 2003-Ohio-2457, 788 N.E.2d 1053, ¶ 29.
{¶ 35} Finally, Burroughs argues that it is clear that Dr. Vaughan applied
an inappropriate standard in evaluating him because her report states, “Apparently
he is fully recovered from his cervical decompression and fusion.” He contends
that her use of the word “apparently” demonstrates that she based her medical
opinion entirely on his participation in the Savage Race. However, Burroughs’s
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argument is unpersuasive. He fails to acknowledge that Dr. Vaughan relied on the
results of the physical examination she performed and her review of his job duties
in reaching her conclusion that he was no longer disabled. By taking one sentence
out of the report and focusing on it, Burroughs misrepresents Dr. Vaughan’s
medical opinion, which when viewed in the context of the whole report, was
unequivocal and was supported by the results of her physical examination.
Conclusion
{¶ 36} We conclude that the board had no legal duty to conduct a physical-
capacity evaluation before terminating Burroughs’s disability benefits and that the
board’s decision was based upon sufficient medical evidence. Accordingly, the
court of appeals abused its discretion in granting Burroughs a limited writ of
mandamus.
Judgment reversed
and writ denied.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
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Dagger, Johnston, Miller, Ogilvie & Hampson, and D. Joe Griffith, for
appellee.
Michael DeWine, Attorney General, and John J. Danish and Mary Therese
J. Bridge, Assistant Attorneys General, for appellants.
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