State ex rel. McCollum v. Ohio Police & Fire Pension Fund Bd. of Trustees

[Cite as State ex rel. McCollum v. Ohio Police & Fire Pension Fund Bd. of Trustees, 2018-Ohio-3874.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Jason R. McCollum, :
Relator, :
v. : No. 17AP-530
Board of Trustees, : (REGULAR CALENDAR)
Ohio Police & Fire Pension[Fund],
:
Respondent.
:
D E C I S I O N
Rendered on September 25, 2018
On brief: Robert J. Rohrbaugh, II, for relator
On brief: Michael DeWine, Attorney General, John J.
Danish, and Mary Therese J. Bridge, for respondent.
IN MANDAMUS
SADLER, J.
{¶ 1} Relator, Jason R. McCollum, commenced this original action requesting this
court to issue a writ of mandamus ordering respondent, Board of Trustees, Ohio Police &
Fire Pension Fund ("OP&F"), to vacate its June 27, 2017 decision denying his application
for disability benefits and ordering OP&F to grant his application.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who considered the action on its merits and issued
a decision, including findings of fact and conclusions of law, which is appended hereto. The
magistrate found the June 27, 2017 report of Gregory Jewell, M.D., is some evidence on
which OP&F can rely in finding that relator has zero percent whole person impairment
No. 17AP-530 2
related to the alleged psychiatric conditions. The magistrate further found that relator's
argument regarding OP&F ignoring the report of his doctor was not supported by evidence
in the record and that no evidence showed relator raised to OP&F an argument challenging
another doctor's credentials. After noting the clear and convincing standard of proof
needed to grant mandamus relief, the magistrate recommended this court deny relator's
request for a writ of mandamus.
{¶ 3} No objections have been filed to the magistrate's decision.
{¶ 4} After an independent review of the matter, we find the rationale of the
magistrate to be consistent with State ex rel. Marmaduke v. Ohio Police & Fire Pension
Fund, 147 Ohio St.3d 390, 2016-Ohio-5550, and precedent of this court. Having found no
error of law or other defect evident on the face of the magistrate's decision, pursuant to
Civ.R. 53(D)(4)(c), we adopt the magistrate's decision as our own, including the findings of
fact and conclusions of law, and conclude relator failed to demonstrate that OP&F abused
its discretion when it denied relator's request for disability benefits. In accordance with the
magistrate's decision, the requested writ of mandamus is denied.
Writ of mandamus denied.
BROWN, P.J., and BRUNNER, J., concur.
________________
No. 17AP-530 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Jason R. McCollum, :
Relator, :
v. : No. 17AP-530
Board of Trustees, : (REGULAR CALENDAR)
Ohio Police & Fire Pension [Fund],
:
Respondent.
:
MAGISTRATE'S DECISION
NUNC PRO TUNC1
Rendered on April 2, 2018
Robert J. Rohrbaugh, II, for relator.
Michael DeWine, Attorney General, John J. Danish, and Mary
Therese J. Bridge, for respondent.
IN MANDAMUS
{¶ 5} In this original action, relator, Jason R. McCollum, requests a writ of
mandamus ordering respondent, board of trustees of the Ohio police and fire pension fund
("board") to vacate its June 27, 2017 decision that denied his R.C. 742.38 disability benefit
application, and to enter a decision that grants the application.
Findings of Fact:
{¶ 6} 1. In June 2016, relator completed a form provided by the Ohio police and
fire pension fund ("OP&F") captioned "Disability Benefit Application." On June 15, 2016,
1 This magistrate's decision replaces, nunc pro tunc, the original magistrate's decision released March 27,
2018 which incorrectly indicates that counsel for respondent represent the Industrial Commission of Ohio
in this action.
No. 17AP-530 4
relator executed an affidavit on the form averring that the information provided is complete
and true to the best of his knowledge and belief. The form is divided into several sections.
{¶ 7} Section A of the form requests "Member information." Therein, relator
indicated that he held the rank of "patrolman" while employed by the city of Warren, Ohio.
Relator marked a box indicating that he underwent an "involuntary separation effective:
May 31, 2016."
{¶ 8} In section C, relator listed his dependents. Relator is married and has a
dependent daughter.
{¶ 9} Section D of the form asks the applicant to "explain why you are permanently
disabled from performing the duties of your title/rank." In the space provided, relator
wrote in his own hand:
Per my treating physicians Dr. Nalluri and Dr. Diorio I suffer
from post traumatic stress disorder, anxiety, and depression
resulting from my experiences working for the City of Warren
Police Dept. They have advise[d] me that due to my conditions
I pose a risk to the community, co-workers, and myself if I
return to work. In their opinion this will worsen if I return. It
is anticipated that treatment will continue for the remainder
of my life.
{¶ 10} Section E asks the applicant for medical information. Relator indicates that
he has a disabling "psychiatric" condition which he identifies as "PTSD, Anxiety,
Depression." Psychiatrist, Anil Nalluri, M.D., is listed as the current attending physician.
May 4, 2016 is identified as the "initial office visit date." July 2015 is listed as the "Date of
onset."
{¶ 11} Section E of the form also asks the applicant to identify the medical
documentation being submitted in support of the application. Relator identifies two
documents: (1) a six-page narrative report from Dr. Nalluri regarding a May 4, 2016
examination, and (2) a May 5, 2016 emergency department discharge regarding relator's
May 5, 2016 visit to the Northside Medical Center located in Youngstown, Ohio.
{¶ 12} 2. The record contains a copy of the six-page narrative report from Dr.
Nalluri identified in the disability benefit application. Captioned "Fitness For Duty
Report." Dr. Nalluri states:
Diagnostic Impression
[One] (F43.11) Post-traumatic Stress Disorder, Acute
No. 17AP-530 5
[Two] (F41.1) Generalized Anxiety Disorder
[Three] (F32.1) Major Depressive Disorder, Single Episode,
Moderate
***
Mr. Jason McCullom was interviewed by me Wednesday,
May 4, 2016 with the agreement that I would provide for him
a comprehensive report detailing the state of his mental
health and the diagnoses and recommendations that I have
found to be relevant in his case.
His symptoms are to the point that they are interfering with
his activities of daily living in both his personal and
professional environments. He has become socially
withdrawn, avoiding people, places and other social activities
that he used to take pleasure in participating. He cannot sleep
through the night due to stress and worry. * * *
It is therefore my recommendation that Mr. McCollum not
return to work in any capacity at this point in time as a law
enforcement representative. Please refer to the reasons above
and the primary diagnosis as my reasons for rendering my
decision. It is also my professional opinion that he has
endured over time emotional trauma and to put him back into
the same work environment as a police officer would be
detrimental to both him and the people with whom he works
and the society he has been entrusted to protect.
It is my recommendation that Mr. McCollum seek a mental
health physician and/or psychologist to embark on a strict
counseling regimen to begin immediately. It is my
recommendation that he be evaluated once again in one year
to determine his mental health status at that time.
Opinion: If Mr. McCollum feels that he cannot serve his
community as a protector and leader due to the ongoing stress
of the job, it is my professional opinion that he take a leave of
absence immediately. If his insecurity due to the rigors of his
job in anyway effects his performance while on duty it could
be to the detriment of himself, a fellow officer or civilian, even
resulting in a death that could have otherwise been avoided
had he been wholly invested in his role as a police officer.
{¶ 13} 3. The record also contains a copy of the May 5, 2016 discharge report from
Northside Medical Center. Appended to the discharge report are multiple documents
No. 17AP-530 6
relating to relator's emergency department visit. Under "History of Present Illness," one of
the documents states:
The patient presents with 42-year-old male with no past
medical history coming in for dull chest pain that appears to
be stress induced; took sleeping pills (diphenhydramine) last
night which brought on symptoms. After further investigation
chest pain is clearly stress-induced because of possible job
termination, works as a police officer – currently facing
disciplinary action. No allergies to medicine, taking Allegra
for rag-weed allergy. No significant past medical history,
surgical history or family history. Non smoker. The onset was
2 hours ago. The course duration of symptoms is improving.
Location: anterior. Radiating pain: none. The character of
symptoms is dull. The degree at onset was minimal. The
degree at maximum was minimal. The degree at present is
none. The exacerbating factor is Stress/Anxiety. Risk factors
consist of none. Prior episodes: none. Therapy today None.
Associated symptoms: anxiety, denies shortness of breath,
denies nausea, denies vomiting, denies diaphoresis and
denies palpitations.
{¶ 14} 4. On June 20, 2016, OP&F received relator's disability benefit application.
{¶ 15} 5. On June 27, 2016, Dr. Nalluri completed an OP&F form captioned
"Report of Medical Evaluation, by Member's attending physician." On the form, Dr.
Nalluri indicated by marking a box aside a preprinted 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.)
{¶ 16} 6. Earlier, by letter dated May 5, 2016, Eric Merkle, Chief of Police of the city
of Warren, informed relator that he is terminated from the Warren Police Department,
effective immediately.
{¶ 17} The Merkle letter explains:
Ref: Disciplinary Action
On December 23, 2015, a public complaint was filed in my
office by Jimmie White alleging excessive force during his
arrest on May 25, 2015. Pursuant to the Public Complaint
No. 17AP-530 7
Policy 07-001, this matter was investigated by the Internal
Affairs Division. * * *
That investigation revealed the following: On Monday,
May 25, 2015 at approximately 1400 hours, you responded to
596 Atlantic St. NE * * * for a disturbance call. While at the
scene, you witnessed a use of force as defined in the Warren
Police Department Use of Force Policy #96-007. Further, the
arrested subject made several allegations of an objectively
unreasonable use of force (arm broken during arrest) to you
mandating that you notify your immediate supervisor upon
receipt of the allegation.
You failed to complete a Level One Report with regards to the
force used by Officer Chris Martin and witnessed by you.
You failed to notify your immediate supervisor upon receipt
of the allegations of objectively unreasonable force.
Additionally, the investigation demonstrates that you were
not truthful during the investigation of this incident.
***
A pre-disciplinary hearing was scheduled for Wednesday,
May 4, 2016 at 1:00 p.m. I was advised via email by Attorney
Randall Weltman of the O.P.B.A. that you elected to waive
that hearing.
After considering all of the facts concerning the alleged
violations of the Policies and/or Procedures of the Warren
Police Department, I find that the charges set forth in the
"Departmental Charges" letter dated May 2, 2016 are true,
and you should be disciplined for just cause.
***
You are hereby terminated from the Warren Police
Department, effective immediately. Please be aware of your
rights as they relate to the current O.P.B.A. Collective
Bargaining Agreement with the City of Warren.
(Emphasis sic.)
No. 17AP-530 8
{¶ 18} 7. On July 22, 2016, an arbitrator of the U.S. Federal Mediation &
Conciliation Service heard the matter of relator's discharge. On October 20, 2016, the
arbitrator issued his award:
The grievance is sustained in part. The Grievant's discharge
shall be converted to a suspension of thirty days without pay,
and he shall be reinstated and made whole for any losses
following the completion of the suspension.
{¶ 19} The arbitrator's 15-page report concludes:
Based on the entire record, it is concluded that there was not
just cause to discharge the Grievant. However, there was just
cause to suspend him for thirty days for his failure to file a
report over the use of force during White's arrest, his failure
to advise his supervisor of White's complaint of injury, and his
misstatements of that incident without fully investigating the
accuracy of his recollection of the incident.
Based on all of the foregoing the grievance will be sustained in
part, and the Grievant shall be reinstated and made whole
following a thirty-day suspension beginning on May 5, 2016.
{¶ 20} 8. Earlier, on May 9, 2016, at relator's request, he was examined by Robert E.
Bisel, D.O. In his four-page narrative report, Dr. Bisel states:
This 42 year old male presents for stress/anxiety.
History of Present Illness:
[One] stress/anxiety
Jason stated that he has been under a lot of stress regarding
the loss of his job. He stated that he has been fired from the
police force for what he feels are unjust accusations. He is
dealing with his union representative and scheduling an
arbitration hearing. He has been very stressed since that time.
The patient states that since the issues started to occur at his
place of employment that he has been having difficulty
initiating and maintaining sleep. He has tried Sominex in an
attempt to sleep but found that he developed palpitations and
it did not help in him being able to fall asleep any easier or
maintain sleep. The patient was seen and evaluated in the
Northside Emergency Department for anxiety. He was
prescribed on Klonopin. He does not feel[] as this has really
helped with his anxiety. The patient states that his appetite is
poor to fair at times and he has lost 7 pounds unintentionally.
No. 17AP-530 9
Jason states that he is to see Dr. Dellurio (?) for psychiatric
counseling.
{¶ 21} 9. On September 21, 2016, at the request of relator's counsel, William D.
Diorio, Ph.D., KISW-S, a licensed independent social worker-supervisor, issued a ten-page
narrative report:
Jason McCollum was seen for an initial assessment and
session of cognitive psychotherapy on May 10, 2016.
Thereafter, Mr. McCollum has been provided with individual
cognitive psychotherapy at a frequency of one session every
two-three weeks.
***
While Mr. McCollum continues to benefit from cognitive
psychotherapy, it is my clinical opinion that he is totally
mentally impaired and unable to return to any form of active
duty as a law enforcement officer with the Warren Police
Department or any law enforcement agency, with or without
accommodations for his mental disabilities for a continuous
period of twelve months, at least.
(Emphasis sic.)
{¶ 22} 10. On October 6, 2016, at the request of OP&F, relator was interviewed and
evaluated by forensic psychologist, Lynn A. Luna-Jones, Ph.D. In her ten-page narrative
report, Dr. Luna-Jones states:
INTRODUCTION:
Mr. McCollum reported that he was employed by Warren
Police Department from 2002 to 2016. He said that during his
employment, he had three significant disciplinary actions, all
during the past five years. He indicated the first incident for
use of force and occurred while transporting a prisoner to the
jail. While the prisoner exited the cruiser, he fell "dead weight"
and fell on the steps. Mr. McCollum said his "Chief felt I
should have taken care of the prisoner better." He noted, "I
took it very hard" because "I felt that I wasn't wrong… I felt
I'm an outstanding employee," yet "I'm being punished."
Mr. McCollum said the second incident occurred in 2015 for
improper use of Ohio Law Enforcement Gateway (OLEG). He
indicated that after receiving his password to access that
database, he and his wife looked up her, their family
No. 17AP-530 10
members, and her employer. He said that he did not realize
that he was not allowed to do so because he did not receive
sufficient training on OLEG.
***
Mr. McCollum said he thought "it was a personal vendetta"
against him. He was very upset that his situation was "on the
news" and the stress of it ruined our vacation" that year. [sic]
Mr. McCollum said that his third disciplinary action was
related to use of force. A suspect was arrested in May of 2015
by Mr. McCollum and another officer, and Mr. McCollum
transported him to the jail. As Mr. McCollum was leaving the
jail, the suspect informed him that his arm was broken during
the arrest. He told him to discuss it with the nurse and left.
During an investigation in December of 2015, Mr. McCollum
denied that there was any use of force. It was felt that "I was
being untruthful" so he was fired.
* * * When asked I he would still be working as a police officer
if he were not fired, Mr. McCollum replied, "I probably would
have still been working." However, he quickly added he would
likely not be working at his best due to his psychological
problems.
Mr. McCollum reported that he began experiencing panic
attacks in May of 2016. He estimated that he has had six total,
but they have gotten better. * * *
When asked if he felt depressed, Mr. McCollum replied, "No."
He said he isolates himself from others at times, but is not
frequently tearful or sad. He described his energy level as "up
and down," but denied experiencing chronic fatigue. He
added, "If I can stay busy, I'm good… but I have moments
where I get lazy and do nothing." Mr. McCollum said his sleep
is "bad" since "this horrible mess" in 2016. * * *
With regard to mental health treatment, Mr. McCollum said
that he began receiving outpatient psychotherapy with Dr.
Diorio in May of 2016. He indicated that they have sessions
once per week. Mr. McCollum reported that he began taking
psychotropic medication around the same time, as prescribed
by his primary care physician, Dr. Bisel. He said he is
prescribed Xanax for anxiety and Ambien to sleep.
***
No. 17AP-530 11
MENTAL STATUS EXAMINATION:
Mr. McCollum is a 43-year-old Caucasian male. He [came] to
this appointment accompanied by his wife. Mr. McCollum had
brown hair and wore a thick beard. He is five feet, 9 inches tall
and weighs 195 pounds. His blood pressure was 128-84. He
was casually dressed for this interview and he wore a baseball
hat.
Mr. McCollum's hygiene and grooming were good. He
provided information in a clear and coherent manner and he
made appropriate eye contact. Mr. McCollum was cooperative
with this evaluation, as he answered all questions posed to
him and had no difficulty providing personal information.
Mr. McCollum's thought processes were logical and goal-
directed. He denied experiencing any hallucinations or
delusions, and no evidence of psychosis was noted during this
evaluation. He did not display any overt signs of mania,
including an abnormally elevated or irritable mood,
grandiosity, increased talkativeness, or racing thoughts.
Further, he denied current suicidal and homicidal ideation.
He identified his mood as "good today."
Mr. McCollum was orientated to person, place, and date. His
recent and remote memory were intact as demonstrated by his
ability to recall recent and past personal information with
ease. Mr. McCollum displayed no difficulties with immediate
recall, but he could only recall two of three words after a delay.
His attention and concentration were adequate, and he was
able to spell "WORLD" backwards and perform Serial 7
subtractions. Mr. McCollum was able to sustain attention
without difficulty throughout this interview and psychological
testing. His insight was fair and he appeared to be functioning
in the average range of intelligence.
Overall, results of the Folstein Mini-Mental State Exam
indicated normal functioning (Total score 29 out of 30) in the
areas of orientation, immediate recall, attention and
calculation, recall, and language.
***
DIAGNOSIS:
[One] Adjustment Disorder with Anxiety (309.24)
No. 17AP-530 12
FUNCTIONAL ASSESSMENT:
Based solely on psychological factors, Mr. McCollum displays
no deficits in self-care and personal hygiene; social and
recreational activities; travel; social functioning; or
concentration, persistence, and pace. However, he appears to
have mild impairment in adaptation. This results in a
Psychiatrist Impairment Rating Scale impairment score of
Class 1, 0%.
According to the Brief Psychiatrist Rating Scale, Mr.
McCollum would obtain a summed score of 40, for a 10%
impairment score.
Mr. McCollum's GAF score would be rated at 75, as his anxiety
is a transient and expectable reaction to his stressors. This
would result in a GAF impairment score of 0%.
Based on these impairment ratings, Mr. McCollum would
have a whole person impairment rating of 0%.
DISCUSSION AND OPINION:
In response to the specific referral questions, the following
opinions are offered:
Was the alleged disability a direct result of their
employment or was it already present when they
were hired? Or did the alleged psychological
disability develop after employment, but for
reasons unrelated to work? Did their police or fire
service induce or aggravate a pre-existing or
concurrently developing psychiatric condition?
Based on all the information provided, Mr. McCollum was
functioning very well from a psychological perspective until
he began receiving disciplinary actions at work around 2011.
He continues to feel that he either did nothing wrong or
blames others for his rule violations. He is angry about being
fired and worried about his future. Although at times during
this evaluation he attempted to attribute his level of stress to
traumatic events that he witnessed at work, it does not appear
that he developed any particular posttraumatic stress related
to those events. It does not appear that he developed any
significant stress until he began worrying about being fired.
No. 17AP-530 13
Since his termination, Mr. McCollum has reportedly been
worried and somewhat concerned about the motivations of
others, believing that they have singled him out and treated
him unfairly. His concerns are reportedly causing him sleep
disturbance. This adjustment disorder with anxiety developed
after his employment, for reasons unrelated to his work,
rather his termination from work. His police service did not
induce or aggravate a pre-existing or concurrently developing
psychiatric condition.
(Emphasis sic.)
{¶ 23} 11. On October 7, 2016, Dr. Luna-Jones completed a four-page OP&F form
captioned "Medical Evaluation by OP&F Psychiatrist."
{¶ 24} Under section II of the form captioned "Evaluation," the OP&F psychiatrist
is given the following instruction:
Attach a complete report of findings and narrative comments
pertinent to your specialty. Express each impairment in terms
of percent impairment of the whole person referencing AMA
Guides.
(Emphasis sic.)
{¶ 25} Below the instruction, under Axis I, Dr. Luna-Jones wrote "Adjustment
Disorder [with] Anxiety."
{¶ 26} Also below the instruction, under Impairment Score, Dr. Luna-Jones wrote:
"BPRS 10%."
{¶ 27} At section II, aside the request for the "Final Estimated Whole-Person
Impairment," Dr. Luna-Jones wrote "0%" in the space provided.
{¶ 28} The OP&F form requests that the examining psychiatrist provide a
"Physician's Disability Opinion" by marking a box aside a preprinted disability statement.
On the form, Dr. Luna-Jones marked the box aside the following preprinted statement:
The member is not 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. 17AP-530 14
{¶ 29} 12. Ohio Adm.Code 742-3-05(A)(13) provides for a "[d]isability evaluation
panel (DEP)." Therein, the DEP "shall mean that panel established by the board to make
written recommendations to the board on pending disability applications."
{¶ 30} 13. OP&F requested that John W. Cunningham, M.D., a DEP physician
member, review and evaluate the reports of Dr. Luna-Jones. In response, on November 21,
2016, Dr. Cunningham wrote:
This 43-year-old Warren police officer with more than 20
years service was evaluated for the Fund by Dr. Luna Jones,
who is a psychologist, for adjustment disorder with anxiety,
for which this member is taking Xanax for anxiety and
Ambien to sleep. This individual did not begin receiving
outpatient psychotherapy until 2016, when he had weekly
visits with the psychologic professional. The medications were
prescribed were by his primary care physician.
According to the member's application, he was involuntarily
separated from employment on 05/31/16. Dr. Jones stated
that all of this individual's adjustment categories were in the
"very good" and/or "good" categories, with only four of the
adjustment categories being "good", with the remaining
thirteen adjustment categories being in the "very good"
category. The BPRS was 10%, the PIRS was 0%, the GAF was
0%, the negative impression management was 55%, and the
malingering index was 44%.
Dr. Jones concluded, "Based on all the information provided,
Mr. McCollum was functioning very well from a psychological
perspective until he began receiving disciplinary actions at
work around 2011. He continues to feel that he either did
nothing wrong or blames others for his rule violations. He is
angry about being fired and worried about his future."
Consequently, this individual has no disabling conditions. His
psychiatric impairment is 0%, it is not waiverable and is not
work related, and he is not incapacitated from working as a
police officer on the basis of his psychiatric difficulties.
{¶ 31} 14. On November 21, 2016, Dr. Cunningham completed a two-page OP&F
form captioned "Disability Evaluation Panel Recommendation." On the form, Dr.
Cunningham found a zero percent psychiatric impairment.
{¶ 32} Also, Dr. Cunningham marked the box aside the following preprinted
statement:
No. 17AP-530 15
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} 15. Earlier, on October 21, 2018, at the request of OP&F, relator was
interviewed by vocational evaluator, Paul T. Kijewski, CRC, LPC, CDMS. In his six-page
narrative report dated October 30, 2016, Kijewski opined:
In summary, I must conclude that it is unclear as to whether
or not Mr. McCollum is not is able [sic] to perform the duties
of a Police Officer at the present time because of his current
emotional difficulties due to the difference of opinion between
Dr. Nalluri who states Mr. McCollum has a condition of
disability from which there is no present indication of
recovery based on the characteristics developed by the U.S.
Department of Labor for that position and Dr. Luna-Jones
who finds that Mr. McCollum is not incapacitated from
performing the duties of a Police Officer based on the
characteristics developed by the U.S. Department of Labor for
that position. He does have some limited transferable skills
and vocational options. All of these jobs have wages levels
considerably lower than the $52,000 per year Mr. McCollum
earned as a Police Officer with the Warren Police Department.
{¶ 34} 16. On November 29, 2016, at the request of OP&F, vocational consultant W.
Bruce Walsh, Ph.D., reviewed the medical and vocational reports of record. In his two-page
narrative report, Dr. Walsh opined:
Summary: A psychiatric report by Dr. Nalluri indicates that
Mr. McCollum suffers from post traumatic stress disorder, a
generalized anxiety disorder, and a major depressive disorder
and needs to take a leave of absence immediately. In his
opinion Mr. McCollum suffers from fatigue and poor
concentration. The psychological examination by Dr. Jones
notes that Mr. McCollum is not incapacitated based on the
adjustment disorder with anxiety and cites a GAF of 75,
suggesting slight impairment in social and occupational
functioning. She indicates that Mr. McCollum has very good
ability to make performance adjustments and good to very
good ability to make occupational and personal social
adjustments. The vocational evaluation by Mr. Kijewski
opines that based on the mental impairments and limitations
No. 17AP-530 16
cited by Dr. Jones, Mr. McCollum is not incapacitated and
retains the ability to perform past relevant work as a police
officer. However, Dr. Nalluri has a different opinion,
suggesting the need for a leave of absence immediately based
on his mental impairments. In summary, the mental and
vocational limitations suggest that Mr. McCollum is not
incapacitated and retains the ability to perform past relevant
work as a police officer. This assessment is consistent with
evidence reported by Dr. Jones. However, Dr. Nalluri has a
different opinion, suggesting the need for an immediate leave
of absence. Further discussion by the panel is appropriate. An
estimate of earning capacity loss is deferred at this time.
{¶ 35} 17. On December 13, 2016, Dr. Walsh completed a one-page OP&F form
captioned "Vocational Recommendation, for Disability Evaluation Panel Hearing."
Following oral discussion at the DEP meeting, Dr. Walsh wrote "Not Incapacitated" in the
space provided for a determination.
{¶ 36} 18. Earlier, by letter dated November 2, 2016, from OP&F case manager
Megan Pawloski, relator was informed that his disability benefit application was scheduled
tentatively to be heard by DEP during its December 14, 2016 meeting.
{¶ 37} 19. On December 13, 2016, "Disability Committee Chair," Daniel Desmond
signed a one sentence memorandum, stating:
Based on the accompanying Disability Evaluation Panel &
Vocational Recommendations, the Disability Committee
recommends that this member's disability application be
denied.
{¶ 38} 20. By letter dated December 14, 2016, OP&F member services director,
Jennifer Harville, informed relator:
At its recent meeting, the Board of Trustees of the Ohio Police
& Fire Pension Fund (OP&F) reviewed your application for
disability benefits. I write to inform you of the Board's
decision.
BOARD ACTION: 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 our personal history file and medical evidence
obtained in conjunction with your application for disability
benefits. Based upon the medical evidence, and considering
No. 17AP-530 17
your training, experience and accomplishments, the Board
finds that you are not disabled.
RIGHT TO APPEAL: If you are dissatisfied with the Board's
decision, you may appeal by filing a written notice of appeal
with OP&F in the form provided by OP&F within ninety (90)
days from the date you receive this letter.
(Emphasis sic.)
{¶ 39} 21. On January 13, 2017, relator filed an appeal on an OP&F form captioned
"Notice of Disability Appeal." The form instructs: "Within 60 days of filing this Notice of
Appeal, you must file with OP&F all documents that you desire to submit in support of your
appeal."
{¶ 40} 22. Earlier, on December 21, 2016, at relator's request, Dr. Bisel issued
another report. Dr. Bisel states:
This 43 year old male presents for Anxiety and insomnia.
History of Present Illness:
[One] Anxiety.
Jason stated that he continues to have a lot of stress. He has
been seen by a vocational counselor and psychologist. He
states that he was denied for the first pension board. He has
been very stressed since that time and it is affecting his ability
to sleep as well. He uses Ambien cautiously for sleep-not night
[sic] but states that he does not feel rested upon awakening.
He is taking Xanax only when he is very anxious which helps
a little-he has weaned downed [sic] to once or twice a week.
[Two] Insomnia.
The patient presents for insomnia. The symptoms are
unchanged. The patient's symptoms began suddenly and have
continued. These complaints are continual. The patient has
the following risk factors for insomnia: age>40 years and use
of alcohol. The insomnia is worsened by stress. He does take
Ambien cautiously but states that he does not feel rested after
taking it. The patient is experiencing depression, difficulty
concentrating, difficulty initiating sleep, difficulty
maintaining sleep and increased fatigue-these symptoms are
slightly improved since last visit. The patient denies
awakening with choking or wheezing. Additional information:
No. 17AP-530 18
States that since having issues at former work place he has
continued to have difficulty sleeping. Has issue with both
depression and anxiety though feels they are slightly better.
{¶ 41} 23. On December 26, 2016, relator was again examined by Dr. Nalluri. In
her eight-page narrative report, Dr. Nalluri concluded:
I want to reiterate what I wrote in my initial report. It is my
opinion after speaking with Mr. McCollum during my current
examination on December 26, 2016 that the above diagnoses
are correct and for which he meets all criteria, according to
the DSM 5.
When trying to make a diagnosis, I take into consideration a
variety of symptoms that point to the underlying issue(s). In
Mr. McCollum's case, many of the changes he has been
experiencing has deviated greatly from the norm most
prominently over the last few months and possibly even the
last few years, but it has most certainly come to a point where
he needed to find help from a mental health practitioner, for
which he now is receiving.
His symptoms are to the point that they are interfering with
his activities of daily living in both his personal and
professional environments. He has become socially
withdrawn, avoiding people, places and other social activities
that he used to take pleasure in participating.
Since our first encounter in May, Mr. McCollum continues to
have sleepless nights due to stress and worry about having to
return to a work environment where he felt alone and
distrusting of a system that he devoted the last 20 years to
serving.
As I have stated it is my recommendation that Mr. McCollum
not return to work in any capacity as a law enforcement
representative with the Warren Police Department.
It is my recommendation that Mr. McCollum continue his
mental health counseling sessions with William Diorio Ph.D.
{¶ 42} 24. On January 15, 2017, at relator's request, Dr. Diorio issued another
report. Consisting of nine-pages, the report criticizes the October 6, 2016 report of
Dr. Luna-Jones.
No. 17AP-530 19
{¶ 43} 25. On February 9, 2017, at the request of OP&F, Dr. Luna-Jones issued a
four-page addendum to her October 6, 2016 report. In her addendum report, Dr. Luna-
Jones reviewed the May 9, 2016 and December 21, 2016 reports of Dr. Bisel, the
December 26, 2016 report of Dr. Nalluri and the September 21, 2016 and January 15, 2017
reports of Dr. Diorio. Dr. Luna-Jones opined:
Based on all the information provided, Mr. McCollum was
functioning very well from a psychological persepective [sic]
until he began receiving disciplinary actions at work around
2011. He continues to feel that he either did nothing wrong or
blames others for his rule violations. He is angry about being
fired and worried about his future. Although at times during
his October 6, 2016 evaluation he attempted to attribute his
level of stress to traumatic events that he witnessed at work, it
does not appear that he developed any particular
posttraumatic stress related to those events. It does not
appear that he developed any significant stress until he began
worrying about being fired.
Since his termination, Mr. McCollum has reportedly been
worried and somewhat concerned about the motivations of
others, believing that they have singled him out and treated
him unfairly. His concerns are reportedly causing him sleep
disturbance. This adjustment disorder with anxiety developed
after his employment, for reasons unrelated to his work,
rather his termination from work. His police service did not
induce or aggravate a pre-existing or concurrently developing
psychiatric condition.
Upon review of the additional medical evidence from Drs.
Bisel, Nalluri, and Diorio, the aforementioned opinion
remains unchanged. Indeed, it is my opinion that Mr.
McCollum does not meet the full criteria for posttraumatic
stress disorder, generalized anxiety disorder, or major
depressive disorder. His most consistent reported symptoms
are anxiety and insomnia, which I believe are most effectively
captured in a diagnosis of adjustment disorder with anxiety.
{¶ 44} 26. On March 6, 2017, at the request of OP&F, vocational evaluator Kijewski
issued a five-page addendum to his October 30, 2016 report. In his addendum, Kijewski
concludes:
In my original report, I concluded that it was unclear as to
whether or not Mr. McCollum was able to perform the duties
No. 17AP-530 20
of a Police Officer at that time due to his emotional difficulties.
That conclusion stands.
In my original I stated that based on Dr. Luna-Jones' report,
it appeared that Mr. McCollum is capable of performing near
100% of unskilled occupations that fall in the sedentary, light,
medium and heavy range of physical demands based on any,
limitations due to Mr. McCollum's emotional difficulties. The
report of Dr. Nalluri did not contain sufficient information to
estimate percentages of unskilled occupations that Mr.
McCollum could perform considering any mental limitations.
As there was no medical information reviewed that mentioned
any physical restrictions, the percentage of unskilled
occupations that Mr. McCollum could perform based on any
physical limitations cannot be estimated. The report of Dr.
Nalluri, the letter of Dr. Deorio and the notes from Dr. Bisel
did not specifically include estimates of Mr. McCollum's level
of functioning in regards to Occupational Adjustments,
Performance Adjustments and Personal & Social
Adjustments. Therefore, that conclusion stands.
In my original report, I concluded that the skills which Mr.
McCollum has acquired, transferred into the occupations of
Customer Service Representative, Dispatcher for private
security and alarm companies, Information Clerk and
Courier. That conclusion stands.
{¶ 45} 27. On June 27, 2017, OP&F medical advisor, Gregory Jewell, M.D.,
completed an OP&F form captioned "Medical Recommendation For Appeal Hearings." On
the form, at section II, Dr. Jewell states:
The following diagnoses and whole person
impairment percentage was made by the DEP
physician on November 21, 2016 at the initial
determination hearing:
Percentage of Whole Person Impairment (Combined Value)
0%
(Emphasis sic.)
{¶ 46} On the form, at section III, Dr. Jewel wrote that the "psychiatric" diagnosis is
zero percent impairment. He remarked "No Disability Conditions Reasonably Supported."
Dr. Jewell marked the box aside the following preprinted statement:
No. 17AP-530 21
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.)
{¶ 47} 28. On June 27, 2017, OP&F vocational consultant, Bruce S. Growick, Ph.D.,
completed an OP&F form captioned "Vocational Recommendation For Appeal Hearing."
On the form, Dr. Growick wrote in his own hand "mild wage loss."
{¶ 48} 29. On June 27, 2017, the board heard relator's appeal.
{¶ 49} 30. On June 27, 2017, board chair, Jeffrey H. Moore, signed an OP&F form
captioned "Findings of Fact on Disability Appeal." On the form, in the space provided, the
board explains:
After review of all evidence noted in the Medical
Recommendation for Appeal Hearings of Dr. Jewell, dated
June 27, 2017, the Vocational Recommendation for Appeal
Hearing of Dr. Growick, dated June 27, 2017, and the
additional evidence presented at the appeal hearing the Board
finds that Mr. McCollum's appeal of his initial disability
application be denied.
(Emphasis sic.)
{¶ 50} 31. On July 26, 2017, relator, Jason R. McCollum, filed this mandamus
action.
Conclusions of Law:
{¶ 51} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
The Pertinent Statute
{¶ 52} R.C. 742.38(C) provides:
(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. 17AP-530 22
(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.
{¶ 53} R.C. 742.38(D) 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 742.39of 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 742.39of the Revised Code. In determining whether a
No. 17AP-530 23
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.
Pertinent Regulations Promulgated by the Board
{¶ 54} Currently, Ohio Adm.Code 742-3-05(A) provides:
(A) For purposes of * * * section 742.38of the Revised Code
and this rule, the following terms shall have the meanings set
forth herein:
(1) "Board," shall mean the board of trustees of the Ohio police
and fire pension fund ("OP&F").
(2) "Applicant" shall mean a member of OP&F who has filed
any type of application for disability retirement benefits * * *
(4) "On-duty illness or injury" means an illness or injury that
occurred during or resulted from the performance of official
duties under the direct supervision of a member's appointing
authority.
(5) "Off-duty illness or injury" means an illness or injury that
did not occur during or result from the performance of official
duties under the direct supervision of a member's appointing
authority. * * *
(11) "Medical Advisor," as referred to in this rule, shall mean
the expert physician appointed by OP&F's board of trustees
who advises the board during its deliberations of appeals of
decisions relating to disability applications.
(12) "Vocational Expert," as referred to in this rule, shall mean
the expert in vocational evaluations appointed by OP&F's
board of trustees who advises the board during its
deliberations of appeals of decisions relating to disability
applications.
(13) "Disability evaluation panel (DEP)" shall mean that panel
established by the board to make written recommendations to
the board on pending disability applications. The DEP shall
be comprised of three voting members and at least two non-
voting members. * * * The non-voting members of the DEP
shall be comprised of expert physicians, including the
alternate, all of whom are appointed by the board of trustees
and at least one of the non-voting members shall be an expert
in vocational evaluations, including the alternate, who shall
No. 17AP-530 24
provide vocational assessments of disability applicants to the
DEP. * * *
(14) "DEP medical advisor," as referred to in this rule, shall
mean the expert physician appointed by the board of trustees
to advise the DEP during its deliberations of initial disability
applications and post-retirement disability reconsiderations,
who shall be a different physician than the medical advisor.
(15) "DEP vocational expert," as referred to in this rule, shall
mean the expert in vocational evaluations appointed by the
board of trustees to advise the DEP during its deliberations of
initial disability applications and post-retirement disability
reconsiderations, who shall be a different evaluator than the
vocational expert.
***
(C) Initial application.
(1) Applications for disability benefits shall be made on the
disability application form approved by the board and must
be in proper form in order to be processed. * * *
(5) OP&F shall schedule the member covered by the pending
disability benefit application for examination by at least one
medical examiner and one expert in vocational evaluations
designated by OP&F, unless it is medically inadvisable to do
so.
***
(6) When all the necessary medical reports and records have
been received by OP&F, including those reports required or
requested under paragraphs (C)(3) and (C)(4) of this rule,
OP&F shall schedule such application for review and
consideration by the DEP, who shall make a written
recommendation to the board based upon the criteria set forth
in paragraph (B) of this rule. The board, based on the written
recommendation of the DEP, will then consider the
application and make an initial determination of disability.
{¶ 55} Currently, Ohio Adm.Code 742-3-05(E) provides:
(E) Appeal of initial determination. * * *
No. 17AP-530 25
(4) Depending on the basis for the appeal and the new
evidence submitted by the member, OP&F may request that
the member undergo a new medical examination and/or
vocational evaluation by an OP&F appointed examining
physician and/or vocational evaluator. OP&F may also
provide the new evidence to the original OP&F appointed
examining physician and/or vocational evaluator and request
that they review the new evidence and provide OP&F with an
addendum to their original reports. The new evidence
submitted by the member and any additional medical and/or
vocational reports, including addendum reports, shall be
forwarded to the board's medical advisor and vocational
expert for review and consideration. The medical advisor and
vocational expert will then provide recommendations to the
board regarding the member's disability application.
(5) Upon receipt of the recommendations from the medical
advisor and vocational expert, the board shall schedule a
hearing on the appeal * * * The appellant shall be given the
opportunity to be present, with counsel or other
representation if he or she chooses, at the hearing.
Basic Law
{¶ 56} Public employee pension systems and their boards have no duty to state the
basis for their decision denying disability benefits when no statute or duly adopted
administrative rule requires it. State ex rel. Tindira v. Ohio Police & Fire Pension Fund,
130 Ohio St.3d 62, 2011-Ohio-4677, ¶ 30, citing State ex rel. Pipoly v. State Teachers
Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219. However, the final decision of the
board must be supported by some evidence in the record. State ex rel. Marmaduke v. Ohio
Police & Fire Pension Fund, 147 Ohio St.3d 390, 2016-Ohio-5550, ¶ 17.
{¶ 57} To be entitled to a writ of mandamus, relator must establish a clear legal right
to the requested relief, a clear legal duty on the part of respondent to provide it, and the
lack of an adequate remedy in the ordinary course of the law. Id. at ¶ 15, citing State ex rel.
Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69. Moreover, in mandamus, the relator
must prove that he is entitled to the writ by clear and convincing evidence. Marmaduke,
¶ 15.
Analysis
{¶ 58} Following the filing of his application for a disability benefit in June 2016,
OP&F scheduled relator for an examination to be performed by psychologist Dr. Luna-
No. 17AP-530 26
Jones. Dr. Luna-Jones was scheduled to examine relator pursuant to Ohio Adm.Code 742-
3-05(C)(5). Following an October 6, 2016 examination, Dr. Luna-Jones issued a ten-page
narrative report. On October 7, 2016, Dr. Luna-Jones completed a four-page OP&F form
captioned "Medical Evaluation by OP&F Psychiatrist." On the form, at section II, aside the
request for the "Final Estimated Whole-Person Impairment," Dr. Luna-Jones wrote "0%"
in the space provided.
{¶ 59} OP&F requested that Dr. Cunningham review and evaluate the reports of Dr.
Luna-Jones. In response, on November 21, 2016, Dr. Cunningham wrote
[T]his individual has no disabling conditions. His psychiatric
impairment is 0%, it is not waiverable and is not work related,
and he is not incapacitated from working as a police officer on
the basis of his psychiatric difficulties.
{¶ 60} On November 21, 2016, Dr. Cunningham completed a two-page OP&F form
captioned "Disability Evaluation Panel Recommendation." On the form, Dr. Cunningham
found a zero percent psychiatric impairment.
{¶ 61} Following relator's appeal, Dr. Jewel completed on June 27, 2017 an OP&F
form captioned "Medical Recommendation For Appeal Hearings." On the form, Dr. Jewell
wrote that the "psychiatric" diagnosis is zero percent impairment. He remarked "No
Disabling Conditions Reasonably Supported."
{¶ 62} At section II of the form, Dr. Jewel stated:
The following diagnoses and whole person
impairment percentage was made by the DEP
physician on November 21, 2016 at the initial
determination hearing:
Percentage of Whole Person Impairment (Combined Value)
0%
(Emphasis sic.)
{¶ 63} It is clear from the record that Dr. Jewell's reference to the November 21,
2016 DEP Physician is a reference to the November 21, 2016 reports of Dr. Cunningham.
{¶ 64} Thus, it can be said that Dr. Jewell relied on the two reports from
Dr. Cunningham in concluding that relator has zero percent psychiatric impairment.
Because Dr. Cunningham was asked to review the October 6, 2016 and October 7, 2016
No. 17AP-530 27
reports of Dr. Luna-Jones, it can be said that, by implication, Dr. Jewell relied on the
reports of Dr. Luna-Jones that Dr. Cunningham reviewed and evaluated in his reports.
{¶ 65} As earlier indicated, the June 27, 2017 findings of the board state reliance on
Dr. Jewell's June 27, 2017 "Medical Recommendation For Appeal Hearings." Thus, it can
be said that the board's June 27, 2017 decision is premised on the reports of Dr. Luna-Jones
and the reports of Dr. Cunningham.
{¶ 66} Given the above analysis, the issue is whether the June 27, 2017 report of Dr.
Jewell is some evidence on which the board can rely in finding that relator has a zero
percent whole person impairment related to his alleged psychiatric conditions. The
magistrate finds that the June 27, 2017 report of Dr. Jewell provides some evidence on
which the board relied in denying the application for a disability benefit.
Relator's Arguments
{¶ 67} In his brief, relator presents the following argument:
Dr. Anil Nalluri
On May 4, 2016 Jason McCollum met with [] Anil Nalluri
M.D. Dr. Nalluri performed an initial evaluation and
diagnosed Mr. McCollum with Posttraumatic Stress Disorder,
Generalized Anxiety Disorder, and Major Depressive
Disorder. It was Dr. Nalluri's opinion that Mr. McCollum was
not to return to work in any capacity as a law enforcement
representative and to continue counseling.
Dr. William Diorio
Upon the recommendation of Dr. Nalluri, Mr. McCollum
sought the treatment of William Diorio, PHD. Dr. Diorio also
diagnosed Mr. McCollum with Generalized Anxiety Disorder,
Posttraumatic Stress Disorder, and Major Depression
Disorder. It was likewise Dr. Diorio's opinion that he is totally
mentally impaired and unable to return to any form of active
duty in law enforcement.
Dr. Lynn Luna
Subsequent to filing his application for benefits, Ohio Police
and Fire referred Jason McCollum for an independent
medical investigation. While Dr.'s Nalluri and Diorio treated
Mr. McCollum for several months for the conditions they
diagnosed, Dr. Luna saw Mr. McCollum for about two (2)
No. 17AP-530 28
hours. In this short time she determined that the opinions of
Jason McCollum's two treating physicians was wrong and the
Jason McCollum did not experience anxiety or any psychiatric
condition related to his police work.
Ohio Police and Fire ignored the opinion of the only medical
doctor who examined McCollum. Instead they relied on the
opinion of their paid evaluator, Dr. Luna. As argued before the
board, Dr. Luna did not possess the requisite medical
credentials to render an opinion in this matter. Moreover, her
limited evaluation should not have been given any weight.
C. CONCLUSION
It is clear from the totality of the evidence, the reports of Dr.
Anil Nalluri, Dr. William Diorio and Dr. Bisel that Jason
McCollum suffers from the disabling conditions of
Generalized Anxiety Disorder, Posttraumatic Stress Disorder,
and Major Depression Disorder. It is also clear from this same
evidence that he is disabled as the result of the performance
of the his [sic] official duties as a Police Officer.
(Emphasis sic.) (Relator's brief at 5-7.)
{¶ 68} To begin, relator is apparently referring to his attending physician, Dr.
Nalluri, when he states in his brief "Ohio Police & Fire ignored the opinion of the only
medical doctor who examined [him]." (Relator's brief at 6.)
{¶ 69} There is no evidence in the record to suggest that the board "ignored" or failed
to consider the reports of Dr. Nalluri. Clearly, the board did not rely on Dr. Nalluri's reports
but that does not compel a conclusion that the board "ignored" or failed to consider the
reports of Dr. Nalluri. See State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d 250 (1996).
{¶ 70} Relator's statement that "Dr. Luna-Jones did not possess the requisite
medical credentials to render an opinion in this matter," seems to suggest that a
psychologist, such as Dr. Luna-Jones, cannot render an opinion on which the board can
rely, and that only a psychiatrist can render such an opinion. (Relator's brief at 7.) There
is no evidence in the record that relator ever presented such argument to the board or to
the DEP. While relator suggests that this argument was made before the board, there is no
transcript of the board hearing to support relator's assertion that such argument was made
to the board.
No. 17AP-530 29
{¶ 71} Issues that are not raised administratively cannot be raised in a mandamus
action. State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 144 Ohio St.3d 579, 2015-
Ohio-5306, ¶ 47, citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997).
{¶ 72} As earlier noted, the standard of proof in mandamus is by clear and
convincing evidence. State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-1147, 2012-
Ohio-4408, ¶ 7.
{¶ 73} Relator could have submitted a memorandum of law on the issue during the
administrative proceedings. Apparently, he did not. Moreover, the absence of a transcript
of the June 27, 2017 board hearing does not assist relator here in meeting his burden of
proof. Stevens at ¶ 11.
Conclusion
{¶ 74} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/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).