[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Powell v. Ohio Pub. Emps. Retirement Sys., Slip Opinion No. 2021-Ohio-4030.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-4030
THE STATE EX REL. POWELL, APPELLANT, v. OHIO PUBLIC EMPLOYEES
RETIREMENT SYSTEM, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys., Slip
Opinion No. 2021-Ohio-4030.]
Workers’ compensation—When there is some evidence to support an
administrative body’s decision, a reviewing court will not disturb the
decision—A party ordinarily may not present on appeal an argument that
it failed to raise below—Court of appeals’ judgment affirmed.
(No. 2021-0395—Submitted September 7, 2021—Decided November 16, 2021.)
APPEAL from the Court of Appeals for Franklin County,
No. 19AP-600, 2021-Ohio-920.
__________________
Per Curiam.
{¶ 1} Appellant, Michael Ray Powell Jr., sought a writ of mandamus from
the Tenth District Court of Appeals compelling appellee, the Ohio Public
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Employees Retirement System (“OPERS”), to reverse its denial of Powell’s
application for disability benefits. The Tenth District denied the writ because
OPERS’s decision was supported by evidence in the record. Powell appealed. We
affirm the Tenth District’s judgment.
I.FACTS AND PROCEDURAL HISTORY
{¶ 2} Powell worked for the state as a highway technician. His duties
included operating heavy equipment, removing snow and ice from highways,
inspecting construction to ensure contractor compliance with state standards,
maintaining highway roads and bridges, and maintaining equipment. He sustained
injury in October 2015 when he fell off a ladder at work and hit his head. He
applied to OPERS for disability benefits in November 2017.
{¶ 3} R.C. 145.35 provides for disability-retirement benefits payable to
eligible OPERS members who suffered an on-duty illness or injury. R.C. 145.35(E)
states that an OPERS member
shall receive a disability benefit * * * if all of the following apply:
(1) The board’s examining physician determines that the
member qualifies for a disability benefit and the board’s medical
consultant concurs with the determination;
(2) The board concurs with the medical consultant’s
determination;
(3) The member agrees to medical treatment as specified in
[R.C. 145.35(F)].
The disability determination hinges on whether the OPERS member is “mentally
or physically incapable of performing the duties of the most recent public position
held by the member” as a result of “a disabling condition either permanent or
presumed to be permanent,” i.e., the disabling condition is “expected to last for a
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continuous period of not less than twelve months following the filing of the
application.” Id.
{¶ 4} When it considered Powell’s application, OPERS had before it the
reports of several physicians.
{¶ 5} Powell’s treating physician, Dr. W. Jerry Mysiw, wrote that Powell
complained of migraines and neck and shoulder pain. Dr. Mysiw diagnosed Powell
with “[i]ntractible migraine without aura and without status migrainous.” His
report also referred to “post concussive Cervicogenic daily migraines.” He stated
that Powell’s prognosis for recovering from his disabling condition was “[f]air at
present,” but he nevertheless opined that he considered Powell permanently
disabled from working in his last public-employment position.
{¶ 6} OPERS had also referred Powell for an independent medical
examination (“IME”) conducted by Dr. Gerald Steiman. In his report, Dr. Steiman
wrote that Powell complained of two types of headaches: migraines, which began
behind one of his eyes and which Powell was able to abort within minutes of onset
using a lidocaine nasal spray; and cervicogenic headaches, which began in Powell’s
neck and upper back and lasted longer. Dr. Steiman also wrote that the eligible
diagnosis for purposes of disability benefits was intractable migraines without aura
and without status migrainosus and that although Powell suffered from multiple
conditions, Dr. Steiman had considered only the eligible diagnosis in his disability
determination. After examining Powell and reviewing his medical history and job
description, Dr. Steiman opined that Powell was not permanently disabled because
the eligible diagnosis of intractable migraine was easily controlled with medication.
{¶ 7} OPERS subsequently asked Dr. Steiman to consider Powell’s
cervicogenic headaches as migraines and to restate his opinion. Dr. Steiman
provided a short supplemental opinion in which he stated that after he considered
Powell’s cervicogenic headaches as migraines, “Powell’s history, medical record
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review, and physical examination provide credible evidence he is not disabled from
his occupation as a public employee.”
{¶ 8} Also before OPERS was a report by Managed Medical Review
Organization (“MMRO”), with which OPERS contracts to manage its disability
claims. The MMRO report, which was signed by its medical director, Dr. Jeffrey
Deitch, contained a review of Powell’s medical history, including Dr. Mysiw’s and
Dr. Steiman’s reports, and recommended that OPERS deny Powell’s application
for disability benefits. Additionally, OPERS’s medical advisor, Dr. Maurice Mast,
recommended that OPERS deny Powell’s application due to insufficient objective
evidence of permanent disability on account of the eligible condition.
{¶ 9} OPERS followed these recommendations and denied Powell’s
application. Powell appealed that decision. When it considered Powell’s appeal,
OPERS had before it all the evidence described above, plus the report of a second
IME, conducted by Dr. Kenneth Mankowski. After examining Powell and
reviewing his medical records, Dr. Mankowski opined that Powell was not
permanently disabled because his migraines were episodic and treatable and
because his cervicogenic headaches, which were also episodic and treatable, had
resolved themselves within three months of Powell’s injury. Dr. Mankowski based
this latter conclusion on the mechanism and severity of Powell’s injury, the nature
of the cervicogenic condition, and the lack of objective evidence of the condition’s
existence at the time of his examination.
{¶ 10} MMRO reviewed the above evidence and recommended, in a report
signed by Dr. Deitch, that OPERS uphold its denial of Powell’s application, based
on the opinions of Drs. Steiman and Mankowski. Dr. Mast concurred, and OPERS
upheld its denial. Powell filed a request to reopen the application, but OPERS
rejected the request.
{¶ 11} Powell filed a complaint for a writ of mandamus asking the Tenth
District Court of Appeals to issue a writ compelling OPERS to reverse its denial of
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his application. The Tenth District denied the writ, finding that OPERS’s decision
was supported by some evidence in the record. Powell appealed.
II. ANALYSIS
A. Mandamus Standard
{¶ 12} A writ of mandamus is the appropriate remedy if OPERS abused its
discretion by denying Powell’s application for disability benefits. State ex rel.
Woodman v. Ohio Pub. Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-
3807, 43 N.E.3d 426, ¶ 16. OPERS abused its discretion if it entered an order that
was not supported by some evidence. Id. at ¶ 17. “Only if the [OPERS] board’s
decision is not supported by any evidence will mandamus lie.” (Emphasis sic.) Id.
“[T]he presence of contrary evidence is immaterial if there is evidence in support
of the board’s findings of fact.” State ex rel. Kolcinko v. Ohio Police & Fire
Pension Fund, 131 Ohio St.3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 9.
B. Some Evidence
{¶ 13} The Tenth District correctly concluded that OPERS’s decision to
deny Powell’s application for disability benefits was supported by some evidence,
specifically (1) Dr. Steiman’s opinion that Powell was not permanently disabled
because his migraines were easily treatable and his cervicogenic headaches were
not disabling, (2) Dr. Mankowski’s opinion that Powell’s migraines were episodic
and treatable and that his cervicogenic headaches had subsided, (3) Dr. Deitch’s
recommendations on behalf of MMRO that Powell was not disabled, based on
MMRO’s review of Powell’s medical records, and (4) Dr. Mast’s recommendations
that the application be denied on the same basis.
{¶ 14} Powell argues that OPERS may not ignore evidence that is favorable
to him, such as his own physician’s opinion. But there is no evidence that OPERS
ignored Dr. Mysiw’s opinion; to the contrary, his reports were referred to in Dr.
Steiman’s and Dr. Mankowski’s reports as well as MMRO’s report.
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{¶ 15} Powell then asserts that the IME system is inherently biased against
claimants, though he offers no evidence in support of this allegation. OPERS points
out that Powell waived his inherent-bias argument by not raising it before the Tenth
District. See State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145
N.E.3d 278, ¶ 10 (“a party ordinarily may not present an argument on appeal that it
failed to raise below”). But even if Powell has not waived that argument, it is
meritless.
{¶ 16} R.C. 145.35(E) provides that OPERS shall grant Powell disability
benefits only if (1) OPERS’s examining physician (in this case, Dr. Steiman or Dr.
Mankowski) determines that he qualifies for benefits, (2) the board’s medical
consultant (in this case, Dr. Mast) concurs, and (3) the OPERS board itself also
concurs. Those statutory requirements were indisputably not met here, and we may
not alter or ignore them.
{¶ 17} Consistent with the above, we have held that OPERS “does not abuse
its discretion by accepting the opinion of its reviewing physician over that of the
claimant’s treating physician.” Woodman, 144 Ohio St.3d 367, 2015-Ohio-3807,
43 N.E.3d 426, at ¶ 18. And with respect to the reviews by MMRO and Dr. Mast,
“a medical expert’s file review can constitute ‘some evidence’ supporting the denial
of disability compensation. * * * 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.” (Emphasis sic.) State ex rel. Wegman v. Ohio Police & Fire
Pension Fund, 155 Ohio St.3d 223, 2018-Ohio-4243, 120 N.E.3d 786, ¶ 18.
C. Fiduciary Duty and Evid.R. 403
{¶ 18} Powell’s principal argument on appeal is that OPERS should have
discounted Dr. Steiman’s and Dr. Mankowski’s opinions. He argues (1) that
OPERS owes him a fiduciary duty, (2) that because OPERS owes him a fiduciary
duty, it must apply Evid.R. 403 and disregard evidence that is more prejudicial than
probative, and (3) that in accordance with Evid.R. 403, Dr. Steiman’s and Dr.
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Mankowski’s opinions must be excluded because they are more prejudicial than
probative (and so, presumably, MMRO’s and Dr. Mast’s opinions, which rely on
the opinions of Drs. Steiman and Mankowski, must be excluded).
{¶ 19} Powell’s argument overlooks the fact that R.C. 145.35(E) requires
OPERS to consider the opinions of its examining physicians. Moreover, no
authority supports his argument, which means that he cannot establish entitlement
to a writ of mandamus. See State ex rel. Domhoff v. Ohio Pub. Emps. Retirement
Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, 17 N.E.3d 569, ¶ 13 (relator must
establish a clear legal right to relief). And we may not create the right that is
enforceable in a mandamus action. State ex rel. Pipoly v. State Teachers Retirement
Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18.
1. Fiduciary Duty
{¶ 20} Powell bases his fiduciary-duty argument on the portion of R.C.
145.36 that states that the members whom OPERS determines qualify for disability
benefits “shall be retired on disability.” However, nothing in R.C. 145.36 mentions
a fiduciary duty, let alone imposes one on the OPERS board with respect to its
determination of Powell’s disability-benefits application.
{¶ 21} Powell next analogizes the OPERS board to fiduciaries who govern
benefit plans under the federal Employee Retirement Income Security Act
(“ERISA”), citing federal case law setting forth, in general terms, the duty of
ERISA fiduciaries to “see that those entitled to benefits receive them,” Gaither v.
Aetna Life Ins. Co., 394 F.3d 792, 807-808 (10th Cir.2004). But Gaither also notes
the duty of ERISA fiduciaries “to protect the plan’s assets against spurious claims.”
Id. at 807. More to the point, this court has made it clear that ERISA does not apply
to OPERS. Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996) (“Congress
expressly exempted government retirement systems * * * from ERISA’s scope”).
{¶ 22} Powell has not established the existence of a fiduciary duty that is
enforceable in mandamus in this case.
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2. Evid.R. 403
{¶ 23} OPERS correctly points out that Powell raised the argument that
Evid.R. 403 bars consideration of Dr. Steiman’s and Dr. Mankowski’s opinions for
the first time in his Tenth District reply brief. OPERS asserts that we need not
consider the argument, citing State ex rel. Grounds v. Hocking Cty. Bd. of Elections,
117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 24, in which we noted, in
an original action filed in this court, that a party is not permitted to raise new
arguments in its reply brief. OPERS acknowledges, though, that the Tenth District
did address Powell’s Evid.R. 403 argument. We will therefore consider it;
however, we find it meritless.
{¶ 24} Evid.R. 403 states that evidence must be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. The only
authority that Powell cites in support of his argument that OPERS must refuse to
consider some medical opinions is the existence of the fiduciary duty discussed
above. He asserts that for the some-evidence standard to have meaning, OPERS
must disregard any evidence that is more prejudicial than probative; otherwise,
OPERS would not be fulfilling its fiduciary duty to Powell. But as explained above,
Powell has not established the existence of the duty that his argument is premised
on. Nor has he established any authority connecting Evid.R. 403 to any such duty,
and we cannot mint such a connection in this mandamus case.
{¶ 25} Because some evidence supports OPERS’s decision and Powell has
not established that any evidence should have been excluded from OPERS’s
consideration, we conclude that the Tenth District correctly denied the writ.
III. CONCLUSION
{¶ 26} In light of the foregoing, we affirm the Tenth District’s judgment.1
1. The header of Powell’s merit brief includes a parenthetical request for oral argument; he
otherwise presents no argument on the subject, and he did not file a motion for oral argument. A
request for oral argument in a direct appeal shall be by motion. S.Ct.Prac.R. 17.02(B). And the
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Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Law Offices of Gary A. Reeve and Gary A. Reeve, for appellant.
Dave Yost, Attorney General, and Samuel A. Peppers III and Mary Therese
J. Bridge, Assistant Attorneys General, for appellee.
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granting of an oral argument in a direct appeal is discretionary. S.Ct.Prac.R. 17.02(A). We deny
Powell’s request.
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