State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund

[Cite as State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio St.3d 111, 2012-
Ohio-46.]

THE STATE EX REL. KOLCINKO, APPELLANT, v. OHIO POLICE
AND FIRE PENSION FUND, APPELLEE.

[Cite as State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund,
131 Ohio St.3d 111, 2012-Ohio-46.]
Public employees—Police and Fire Pension Fund—Disability-retirement benefits
denied.
(No. 2011-0850—Submitted January 3, 2012—Decided January 11, 2012.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-269, 2011-Ohio-1668.
__________________
Per Curiam.
{¶ 1} Appellant, Andrew M. Kolcinko, appeals from a judgment entered
by the Court of Appeals for Franklin County denying his request for a writ of
mandamus to compel the board of trustees of appellee, Ohio Police and Fire
Pension Fund (“OP & F”), to award him disability-retirement benefits based on
his claim that he is permanently and totally disabled as a result of the performance
of his official duties as a member of the Solon Police Department from January
1991 until his resignation in March 2007. We affirm.
{¶ 2} “Because the final OP & F board decision is not appealable,
mandamus is available to correct an abuse of discretion by the board in denying
disability benefits.” State ex rel. Tindira v. Ohio Police & Fire Pension Fund,
130 Ohio St.3d 62, 2011-Ohio-4677, 955 N.E.2d 963, ¶ 28. A clear legal right to
the requested relief in mandamus exists “where the board abuses its discretion by
entering an order which is not supported by ‘some evidence.’ ” Kinsey v. Bd. of
Trustees of Police & Firemen’s Disability & Pension Fund of Ohio (1990), 49
Ohio St.3d 224, 225, 551 N.E.2d 989.
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{¶ 3} In November 2009, the board of trustees upheld its previous
decision denying Kolcinko’s application for disability-retirement benefits.
Kolcinko claimed entitlement to an award of benefits under R.C. 742.38(D)(1),
which provides, “A member of the fund who is permanently and totally disabled
as the result of the performance of the member’s official duties as a member of a
police or fire department shall be paid annual disability benefits in accordance
with division (A) of section 742.39 of the Revised Code.” “ ‘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,” and “ ‘[p]ermanently disabled’ means a condition of disability
from which there is no present indication of recovery.” R.C. 742.38(D)(1)(a) and
(b).
{¶ 4} The court of appeals denied the writ of mandamus because the
court determined that the report of Dr. Sylvester Smarty, a psychiatrist, supported
the board’s determination that Kolcinko was not permanently and totally disabled
due to a psychiatric or psychological impairment.
{¶ 5} On appeal, Kolcinko claims that the court of appeals erred in
denying the writ because the OP & F board of trustees abused its discretion in two
different ways. Kolcinko first contends that the board abused its discretion by
relying on Dr. Smarty’s report to support the denial of benefits. Dr. Smarty
examined Kolcinko in February 2008, and he concluded that Kolcinko’s disability
was temporary and that recovery could be reasonably expected within a year. Dr.
Smarty further concluded that “[h]is prognosis would definitely be improved by a
more aggressive approach to his treatment,” that he had a whole-person
impairment of 15 percent, and that his score on the global assessment of
functioning was 65. In his assessment of Kolcinko’s mental residual functional
capacity, Dr. Smarty determined that Kolcinko’s ability to perform work-related

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activities on a day-to-day basis in a regular work setting ranged from very good to
fair.
{¶ 6} Kolcinko contends that Dr. Smarty’s report could not be
considered probative evidence, because after a year had passed from the
consultative evaluation, the August 2009 report of Dr. Edward Poa and Dr. Phillip
Resnick established that his psychiatric symptoms remained.
{¶ 7} Under R.C. 742.38 and Ohio Adm.Code 742-3-05, the OP & F
board is vested with the exclusive authority to evaluate the weight and credibility
of the medical evidence in determining a member’s entitlement to disability-
retirement benefits. Notwithstanding Dr. Poa’s and Dr. Resnick’s conclusion that
Kolcinko was permanently disabled, they further noted that Dr. Francis
McCafferty had observed that Kolcinko complained of “certain patterns or
combinations of features that are unusual or atypical in clinical populations but
relatively common among individuals feigning mental disorder.” Dr. Poa and Dr.
Resnick opined that Kolcinko had a lower whole-person impairment (12 percent)
than the 15 percent figure determined by Dr. Smarty.
{¶ 8} These psychiatrists also determined that Kolcinko had the same
global assessment of functioning score (65) that Dr. Smarty found. This score
indicates “some mild symptoms (e.g., depressed mood and mild insomnia) or
some difficulty in social, occupational, or social functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships.” Diagnostic and Statistical Manual
of Mental Disorders (4th Ed.Text Rev.2000) 34. Dr. Poa and Dr. Resnick also
found that Kolcinko’s ability to use judgment, to maintain regular attendance, to
understand and carry out simple job instructions, and to maintain personal
appearance was very good and that Kolcinko’s ability to follow work rules, relate
to co-workers, deal with the public, interact with supervisors, function
independently, perform at a consistent pace, understand and carry out detailed but

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not complex job instructions, behave in an emotionally stable manner, and relate
predictably in social situations was good.
{¶ 9} As the court of appeals properly concluded, the OP & F board was
permitted to accept the findings of Dr. Poa and Dr. Resnick but reject their
conclusions. These findings supported the findings and conclusion of Dr. Smarty
and refuted Kolcinko’s claim that Dr. Smarty’s report was stale and unreliable.
The doctors’ reports were evidence to support the board’s denial of Kolcinko’s
application for disability-retirement benefits. Under the appropriate standard of
review, the presence of contrary evidence is immaterial if there is evidence in
support of the board’s findings of fact. See State ex rel. Spohn v. Indus. Comm.,
115 Ohio St.3d 329, 2007-Ohio-5027, 875 N.E.2d 52, ¶ 33. Therefore, OP & F
did not abuse its discretion by relying on Dr. Smarty’s report to support its
decision denying Kolcinko’s application for disability-retirement benefits.
{¶ 10} For his remaining contention, Kolcinko claims that the OP & F
board abused its discretion in denying him disability-retirement benefits because
he was also physically disabled from continuing to work. Kolcinko did not,
however, raise any argument concerning his physical impairments until his reply
brief in the court of appeals, and that argument was limited to claiming that the
OP & F board failed to state particular evidence and reasons why it denied his
permanent-disability benefits for his physical impairments. See State ex rel. Am.
Subcontractors Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-
2881, 950 N.E.2d 535, ¶ 40 (new argument in reply brief is forbidden).
{¶ 11} The court of appeals thus correctly concluded that “[a]lthough
relator’s application for disability retirement also cites injuries to his left eye,
right knee, right elbow, lower back, and left shoulder, he is only challenging [the
board’s] decision as it relates to the allowed physical impairment.” State ex rel.
Kolcinko v. Ohio Police & Fire Pension Fund, 10th Dist. No. 10AP-269, 2011-
Ohio-1668, 2011 WL 1314675, ¶ 20. In his objections to the magistrate’s

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decision, Kolcinko did not object to that finding, and he limited his objections to
his claimed psychological impairments. Kolcinko thereby waived any error by
failing to object to that portion of the magistrate’s decision recommending denial
of the writ. State ex rel. Schmidt v. School Emps. Retirement Sys., 100 Ohio St.3d
317, 2003-Ohio-6086, 798 N.E.2d 1088, ¶ 6; State ex rel. Evans v. Blackwell, 111
Ohio St.3d 1, 2006-Ohio-4334, 854 N.E.2d 1025, ¶ 18.
{¶ 12} Therefore, Kolcinko’s alternate argument also lacks merit.
{¶ 13} Based on the foregoing, Kolcinko did not establish that the OP & F
board of trustees abused its discretion by denying his application for disability-
retirement benefits. Therefore, we affirm the judgment of the court of appeals
denying the writ of mandamus. We also deny Kolcinko’s motion for oral
argument because the parties’ briefs are sufficient to resolve this case. State ex
rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339,
855 N.E.2d 444, ¶ 16.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Marc G. Doumbas, for appellant.
Michael DeWine, Attorney General, and Jennifer S. M. Croskey, Assistant
Attorney General, for appellee.
______________________

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