Wegman v. Police & Fire Pension

• Decision Date: 23 October 2018
• Docket Number: No. 2017-0141,2017-0141
• Citation: 2018 Ohio 4243,120 N.E.3d 786,155 Ohio St.3d 223
• Parties: The STATE EX REL. WEGMAN, Appellant, v. OHIO POLICE & FIRE PENSION FUND, Appellee.
• Court: Ohio Supreme Court

155 Ohio St.3d 223

120 N.E.3d 786

2018 Ohio 4243

The STATE EX REL. WEGMAN, Appellant,

v.OHIO POLICE & FIRE PENSION FUND, Appellee.

No. 2017-0141

Supreme Court of Ohio.

Submitted January 23, 2018

Decided October 23, 2018

Jon Goodman Law, L.L.C., and Jon H. Goodman, for appellant.

Michael DeWine, Attorney General, and John J. Danish and Mary Therese J. Bridge, Assistant Attorneys General, for appellee.

Kennedy, J.{¶ 1} Appellant, Donald A. Wegman, appeals from a judgment of the Tenth District Court of Appeals denying a writ of mandamus to compel appellee, the Ohio Police & Fire Pension Fund (the "fund"), to award him on-duty-percentage disability benefits for certain injuries that he alleges were sustained on the job. Because the fund's board of trustees did not abuse its discretion in denying those benefits, we affirm the judgment of the court of appeals.

Facts and Procedural History

{¶ 2} Wegman worked for Anderson Township as a firefighter from 1997 until March 1, 2014, and he is a member of the fund, which provides disability benefits and pensions to its members as well as their spouses, children, and dependent parents. See R.C. 742.02. On February 23, 2015, he filed an application seeking disability benefits for various medical conditions, including injuries to his right shoulder and left knee, heart disease, and depression and anxiety. Except for the injury to his left knee, which occurred after he resigned, he attributed these conditions to his occupation.

{¶ 3} Merris T. Young, M.D., examined Wegman and prepared a report opining that he was permanently disabled. The fund’s form instructed Dr. Young to use the American Medical Association's Guides to the Evaluation of Permanent Impairment ("AMA Guides") as the framework for evaluating permanent impairments, and referencing tables in the AMA Guides, he estimated Wegman's "Whole Person Impairment" to be 36 percent, based on the following disability percentages:

• Left Knee          11 percent
                • Heart              10 percent
                • Right Shoulder     11 percent
                • Eyes                5 percent
                • Hearing             0 percent
                • Lumbar Back         5 percent
                • Thoracic Back       0 percent
                

{¶ 4} The board referred Wegman to vocational expert Robert E. Breslin, who interviewed Wegman and concluded that he was "unable to return to his former occupation of Firefighter" and "has significant physical restrictions that will limit him to a range of sedentary work activity at best."

{¶ 5} James Talmadge, M.D., reviewed Wegman's medical records and prepared a medical report for the board. Concluding that Dr. Young's rating was not correct, he determined that the left-knee impairment should have been rated at 4 percent and that the right-shoulder impairment should have been 0 percent. Dr. Talmadge concluded that Wegman's back pain, heart condition, and vision impairment were not disabling and agreed with the disability percentages that Dr. Young had provided on those conditions. He then calculated Wegman's Whole Person Impairment to be 4 percent.

{¶ 6} The board secured a second vocational opinion from Michael A. Klein, Ph.D., who reviewed the medical and vocational evaluations supplied to him and characterized the damage to Wegman's earning capacity as "moderate."

{¶ 7} The Disability Evaluation Panel reviewed these evaluations, determined that Wegman's disability was not caused by Wegman's employment as a firefighter, and recommended an 8 percent disability benefit (the 4 percent Whole Person Impairment calculated by Dr. Talmadge multiplied by 2 for moderate earning-capacity damage). Relying on "the entire record which includes [Wegman's] personal history file and medical evidence obtained in conjunction with [the] application for disability benefits," the board granted Wegman off-duty disability retirement, with an annual benefit of 8 percent of his average annual salary.

{¶ 8} Wegman appealed the board's decision based on four conditions: heart disease, right-shoulder injury, left-knee injury, and "anxiety/depression." As supplemental evidence, he submitted a report prepared by Denver Stanfield, M.D., who noted that an MRI of Wegman's right shoulder showed a tearing of the rotator cuff, a chronic tear of the superior labrum (the cartilage around the shoulder socket), arthritis, and capsulitis. Wegman also submitted a report from Terry Glendening, Ph.D., his treating psychologist, attesting to Wegman's impairment from posttraumatic stress disorder from the hazards of firefighting and a hostile workplace environment. Dr. Glendening also referred to another physician's report that job-related stress from Wegman's employment may have been a factor for his heart condition. Finally, Wegman provided a letter from retired Battalion Chief Paul Cunningham describing the verbal and, in one case, physical abuse that Wegman experienced in the workplace.

{¶ 9} The board arranged for Wegman to be examined by W. Kent Soderstrum, M.D., who assessed a 10 percent impairment for the heart condition, 9 percent for the right shoulder, 5 percent for the low back, and 10 percent for the left knee. Relying on the AMA Guides, Dr. Soderstrum estimated that Wegman had a Whole Person Impairment of 31 percent. Thomas M. Evans, Ph.D., provided the board a psychological assessment, estimating a 10 percent Whole Person Impairment caused by Wegman's dysthymic disorder and anxiety disorder, which each had a 10 percent impairment score according to the AMA Guides. Breslin, the vocational expert who had previously evaluated Wegman, reviewed the new evidence and provided an addendum report maintaining his opinion that Wegman's abilities would restrict him to "sedentary and light, unskilled occupations." Bruce S. Growick, Ph.D., also submitted a vocational recommendation indicating that Wegman had sustained moderate wage loss from his disabilities.

{¶ 10} Gregory Jewell, M.D., the board's medical advisor, issued a recommendation based on his review of the records. Dr. Jewell's report contains a column for "Diagnosis" and a column for "Impairment %," as well as four lines designated by the letters "(a)," "(b)," "(c)," and "(d)." In the "Diagnosis" column, Dr. Jewell wrote "Left-Knee-Quadriceps Rupture," "Cardiac Arrhythmia," "Right Shoulder," and what appears to be the Greek letter "?" or "psi," which can be shorthand for psychology, psychiatry, or psychological. See Andrew Colman, What is Psychology? 45 (3d Ed.2016). Dr. Jewell assessed a 6 percent left-knee impairment, a 9 percent impairment due to cardiac arrhythmia, a 9 percent impairment for the right shoulder, and 0 percent impairment for the psychological conditions. He concluded that only the knee condition was disabling, and he estimated Wegman's Whole Person Impairment to be 6 percent.

{¶ 11} Following a hearing and after stating that it had reviewed the evidence, the board awarded an off-duty disability benefit of 12 percent of Wegman's average annual salary based on Dr. Jewell's medical recommendation and Dr. Growick's vocational recommendation.

{¶ 12} Wegman filed a complaint for a writ of mandamus in the Tenth District Court of Appeals. He challenged the board's decision not to award on-duty disability benefits for his right shoulder and his psychological conditions. The court of appeals referred the matter to a magistrate, who recommended denying the writ of mandamus. Wegman filed timely objections, but the court of appeals overruled the objections and adopted the magistrate's decision.

{¶ 13} Wegman appealed to this court as of right.

Law and Analysis

{¶ 14} To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Love v. O'Donnell , 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.

{¶ 15} "Because the final board decision is not appealable, mandamus is available to correct an abuse of discretion by the board in denying disability-retirement benefits." State ex rel. Worrell v. Ohio Police & Fire Pension Fund , 112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380, ¶ 10. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. Id. We have recognized that the board abuses its discretion when it "enter[s] an order which is not supported by ‘some evidence.’ " Kinsey v. Police & Firemen's Disability & Pension Fund Bd. of Trustees , 49 Ohio St.3d 224, 225, 551 N.E.2d 989 (1990). "Only if the board's decision is not supported by any evidence will mandamus lie." (Emphasis sic.) State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys. , 144 Ohio St.3d 367, 2015-Ohio-3807, 43 N.E.3d 426, ¶ 17.

{¶ 16} Pursuant to R.C. 742.38 and Ohio Adm.Code 742-3-05, the board is "vested with the exclusive authority to evaluate the weight and credibility of the medical evidence in determining a member's entitlement to disability-retirement benefits." State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund , 131 Ohio St.3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 7. And because we are reviewing the board's decision for some evidence supporting it, "the presence of contrary evidence is immaterial if there is evidence in...