F I -^ CD...Appx. Pg. Notice of Appeal to the Ohio Supreme Coui-t (July 7, 2008) .....I Opinion of the Franklin County Court of Appeals (June 10 Judgment Entry of the Franklin County

IN THE SUPREME COURT OF 014I0

STATE OF OHIOEx rel. BARBARA MARCHIANO

Relator,

vs.

SCHOOL EMPLOYEESRETIREMENT SYSTEM

Respondent.

Case No. 08-1301

On Appeal from theFranklin County Court of AppealsTenth Appellate District

MERIT BRIEF OF APPELLANT - RELATOR BARBARA MARCHIANO

Tony C. Merry (0042471) (COUNSEL OF RECORD)Law Offices of Tony C. Merry, LLC3300 Riverside Drive, Suite 125Columbus, Ohio 43221(614) 372-7114(614) 372-7120 [fax][email protected]

COUNSEL FOR APPELLANT BARBARA MARCHIANO

Todd A. Nist (00079436) (COUNSEL OF RECORDAssistant Attorney General30 E. Broad Street26`h FloorColumbus, OH 43215-3428(614) 466-2980(614) 728-9470 [fax]

F I -^ CDSEP 0 8 2003

CLERK OF COURTSUPREME COURT OF OHIO

COUNSEL FOR APPELLEE SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... .............. ..................... ............................. ................................... iv

FACTS ............................................................................................................................................. I

ARGUMENT ............................................ ..................................................................................... I 1

Proposition of Law No. 1

A decision by the Board of the School Employees Retirement System to grantor to deny an application for benefits is a fiduciary decision. R.C. §3309.15,applied. Metropolitan Mitt. Life Ins. v. Glenn (2008), 128 S. Ct. 2343,followed. State ex rel. McMaster v. School Employees Retirement Sys. (1994),overruled ...................................:....................................................................................... I 1


In light of the fiduciary standards imposed by the General Assembly on theBoard of the School Employees Retirement System, a decision of the Boardwill not constitute an abuse of discretion as long as it is reasonable in light ofthe evidence. R.C. §3309.15, applied. McDonaltl v. Western-Sontliern LifeIiis. Co. (6'h Cir. 2003), 347 F.3d 161, followed ..............................................................15


A Relator in a mandamus action seeking an award of disability benefits ispermitted to conduct limited discovery for the purpose of establishingwhether an examining physician is competent and disinterested. Ohio R.Civ. P. 26, applied. R.C. §3309.39(C), applied . ...........................................................23


In light of the fiduciary standards imposed by law on the Board of the SchoolEmployees Retirement System, the Board must specifically state the evidenceit relied upon and explain the reasons for any decision denying anapplication for disability benefits. R.C. §3309.15, applied. State ex rel. Nollv. badus. Comm. ( 1991), 57 Ohio St.3d 203, followed and extended. State ezrel. Lecklider v. School Employees Retirement Systeni (2004), 104 Ohio St.3d271, overruled ...................................................................................................................26

i


Where a claimant presents competent, credible evidence that an examiningphysician is not disinterested or is not competent, the Board of the SchoolEmployees Retirement System abuses its discretion if it nevertheless relies onthe medical opinion of the examining physician. R.C. §3309.15, applied.R.C. §3309.39(C), applied ................................................................................................29


The Board of the School Employees Retirement System abuses its discretion.when it relies for its decision on a medical opinion that is equivocal. State exrel. Eberhardt v. Flexible Corp. (1994), 70 Ohio St.3d 649, applied .............................34

C ONCLU SION .................................................................................................................... ..........3 6

CERTIFICATE OF SERVICE ......................................................................................................37

APPENDIX

Appx. Pg.

Notice of Appeal to the Ohio Supreme Coui-t(July 7, 2008) .......................................................................................................................I

Opinion of the Franklin County Court of Appeals(June 10, 2008) .....................................................................................................................3

Judgment Entry of the Franklin County Court of Appeals(June 10, 2008) ...................................................................................................................20

Magistrate's Order(September 28, 2007) ...............................................:......................:..................................21

UNREPORTED CASES

In the Matter of Deaconess flospital of Cincinnati, Ohio (Dec. 9, 1993, 10'h Dist. App.),1993 Ohio App. Lexis 5850 ...............................................................................................22

Plttmmer v. Hartford Life Ins. Co., (S. D. Ohio, Jan. 5, 2007),2007 U.S. Dist. Lexis 488 ..................................................................................................26

State v. Honnaker (IS` Dist. App., March 24, 2006), 2006 Ohio 1374 ..............................46

ii

State v. Johnson (151 Dist. App. July 11, 2003), 2003 Ohio 3665 ......................................50

State v. Ushry III (lt` Dist. App., Dec. 1, 2006), 2006 Ohio 6287 .....................................60

State ex rel. Certifed Oil Corp. v. Ylabe (10°i Dist. App. July 31, 2007),2007 Ohio 3877 ..................................................................................................................68

State ex rel. Copeland v. Sch. Empl. Ret. Syst. (10°i Dist. App. Aug. 5, 1999), 1999 OhioApp. Lexis 3 549 .................................................................................................................77

State ex rel. Green v. Public Emples. Retirement Sys. (10`h Dist. App., June 22, 1999),1999 Ohio App. LEXIS 2830 .. ..........................................................................................83

State ex ret. Tharp v. Consolidated Metal Products (10`h Dist. App., Nov. 26, 2003),2003 Ohio 6355 ..................................................................................................................86

STATUTES

R.C. § 3309(15) ...................................................................................................................96

29 U.S.C. § 1104(a) ............................................................................................................97

R.C. §3309.01(U) ...............................................................................................................98

29 U.S.C. § 1002(21)(A) .....................................................................................................99

R.C. §3309.39(C) .............................................................................................................100

R.C. §3309.39(E) .. ...........................................................................................................100

in

TABLE OF AUTHORITIES

Cases

Bixler v. Central Pa. Teamsters Health & Welfcire Fund (P Cir. 1993), 12 F.3d 1292 ...............29

Black & Decker Disability Plan v. Nord (2002), 538 U.S. 822 ...............................................25, 30

EdSchory & Sons, Inc. v. Society Nat'1 Bank (1996), 75 Ohio St.3d 441 ....................................19

Elliott v. Metro. Life Ins. Co. (6"' Cir. 2006), 473 F.3d 613 ..........................................................23

Firestone Tire & Rtabber Co. v. Brtich (1989), 489 U.S. 101 .................................................. 14,20

In re Sedgwick's Will (Belmont Co. 1944), 74 Ohio App. 444 .....................................................29

In the Matter of Deaconess Hospital of Cincinnati, Ohio (Dec. 9, 1993, 10`h Dist. App.), 1993Ohio App. Lexis 5850 .............................................................................................................. 30-31

Kalish v. Liberty Ailutual/Liberty Life Assur. Co. of Boston (6`h Cir. 2005), 419 F.3d 501 ...........25

Kinsey v. Board ofTrustees of Police & Firemen's Disability & Pension Ftind (1990), 49 OhioSt. 3d 224 .................................................................................................................................15, 18

McDonald v. Western-Southern Life Ins. Co.(6`' Cir. 2003), 347 F.3d 161 ...................... 15, 20-23

Meinhard v. Salmon (1928), 259 N.Y. 458, 464, 164 N.E. 545 ....................................................19

Alletropolitan Life Ins. Co. v. Glenn (2008), 128 S. Ct. 2343 ............................................11, 1'3, 19

Pegram v. Herdrich (2000), 530 U.S. 211 .....................................................................................19

Plummer v. Hartford Life Ins. Co., (S. D. Ohio, Jan. 5, 2007), 2007 U.S. Dist. Lexis 488 ..........27

Powell v. Hawkins (151 Dist. App., 2007), 175 Ohio App.3d 138, 2007 Ohio 3557 ................ 32-33

Sallee v. Fort Knox Nat'1 Bank (6`h Cir. 2002) 286 F.3d 878 ........................................................19

Sanford v. Harvard Indus., Inc. (6`h Cir. 2001), 262 F.3d 590 ......................................................20

Stcrte v. Hicks (1989), 43 Ohio St. 3d 72 ........................................................................................31

State v. Honnaker (IS" Dist. App., March 24, 2006), 2006 Ohio 1374 ....................................30, 31

State v. Johnson (15C Dist. App. July 11, 2003), 2003 Ohio 3665 ..................................................30

iv

State v. Leonard (2004), 104 Ohio St. 3d 54 .................................................................................30

State v. Ushry III (1" Dist. App., Dec. 1, 2006), 2006 Ohio 6287 .................................................30

State ex rel. Anderson v. Indttstrial Comm. Of Ohio (1980), 62 Ohio St.2d 166 ..........................17

Stctte ex rel. Btu•ley v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18 ....................................... 16-17

State ex rel. Certified Oil Corp. v. ebfabe (10`" Dist. App., July 31, 2007), 2007 Ohio 3877........ 34

Stcite ex rel. Citizens for Open, Responsive & Accountable Gov't v. Register (2007), 116 Ohio St.3d 88 ...............................................................................................................................................24

State, ex rel. Consolidated Rail Corp., v. Gorman (1982), 70 Ohio St. 2d 274 ............................14

State ex rel. Copeland v. Sch. EnipL Ret. Syst. (10t" Dist, App., Aug. 15, 1999), 1999 Ohio App.Lexis 3549 ......................................................................................................................................25

State ex rel. Eberhardt v. Flexible Corp. ( 1994), 70 Ohio St.3d 649 ............................................34

State ex rel. Fiber-Lite Corp. v. Industrial Cam, of Ohio (1988), 36 Ohio St. 3d 202 .................. 16

State ex rel. Franks v. Indutrial. Comm. Of Ohio (2003), 99 Ohio St.3d 35 ................................. 18

State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315 ........................................................ 15, 17-18

State ex rel. Gerspacher v. Cofftnberry ( 1952), 157 Ohio St. 32 . ................................................. 19

State ex rel. Green v. Public Emples. Retirement Sys. (10"' Dist. App., June 22, 1999),1999 Ohio App. LEXIS 2830 ......................................................... ...............................................26

State ex rel. Mutton v. Indusb•ial Com. (1972), 29 Ohio St. 2d 9 ............................................ 15-16

Slate ex rel. Kidd v. Bd. ofTrustees qfPolice & Firemen's Disability & Pension Fund (1991),66 Ohio App. 3d 647 ...........................................................................................:..........................26

State ex rel Koonce v. Industrial Comm. (1994), 69 Ohio St.3d 436 ........................................... 18

State ex rel. Lecklider v. School Employees Retirement System (2004),104 Ohio St.3d 271 ..................................................................................................................18, 26

State ex rel. McMaster v. School Employees Retirement Sys. (1994),69 Ohio St. 3d 130 .............................................................................................................11, 13,18

State ex rel. Mitchell v. Robbins & fLlyers, Inc. (1983), 6 Ohio St. 3d 481 ...................................28

State ex rel. Moyer v. Baldwin (1908), 77 Ohio St. 532 ................................................................26

State ex rel. 1Voll v. Indtts. Comm. (1991), 57 Ohio St. 3d 203 .................................... 17, 25, 27-28

State ex rel. Pipoly v. State Teachers Retirement Sys. (2002), 95 Ohio St.3d 327 ..................26, 28

State ex rel. Schaengold v. Ohio Pub. Emples. Ret. Sys. (2007), 114 Ohio St. 3d 147 .................18

State ex rel. Stiles v. School Employees Retirement System (2004), 102 Ohio St.3d 156 .......18, 20

State ex rel. Tharp v. Consolidated Metal Products (10`" Dist. App., Nov. 26, 2003), 2003 Ohio6355 ................................................................................................................................................30

State ex rel. Thompson v. Fenix & Scisson, Inc. (1985), 19 Ohio St. 3d 76 ..................................16

State ex rel. Tiveed v. Columbus Parcel Services, Inc. (1982), 69 Ohio St. 3d 331 ......................16

1/ar•ity Corp. v. Hotive (1996), 516 U.S. 489 ..................................................................................12

Wilkins v. Baptist Healthcare Sys. (6`h Cir. 1998), 150 F.3d 609 ..................................................25

Willis v. ITT Educ. Servs. (S.D. Ohio 2003), 254 F. Supp. 2d 926 ................................................33

Statutes and Rules

26 U.S.C. §457(e)(1)(A) ................................................................................................................12

29 U.S.C. §1002(7) ......................................:........................................................................... 13-14

29 U. S.C. § 1002(8) ........................................................................................................................13

29 U.S. C. §1002(21) .....................................................................................................................12

29 U.S.C. §1003(b)(1) ...................................................................................................................12

29 U.S.C. § I 104(a)(1) ....................................................................................................................11

R.C. §3309.01(U) .....................................................................................................................12, 14

R.C. §3309.03 ................................................................................................................................11

R.C. §3309.15 ..............................................................................................................11, 14, 26, 29

R.C. §3309.39(C) ...................................................................................................24, 29, 30, 34, 35

vi

R.C. §3309.39(E) ...........................................................................................................................13

R. C. §3309.60 ...............................................................................................................................I1

R.C. §3309.811 ..............................................................................................................................12

R.C. §3309.812 ..............................................................................................................................12

Ohio R. Civ. P. 1(A) ......................................................................................................................24

Ohio R. Civ. P. 26(B) .....................................................................................................................24

Other Authorities

P . L. 93 -406 ..................................... ....... ................. ............. . .............. ................ ............... ... . ...... ...12

RESTATEMENT OF THE LAW 2D, TRUSTS, § 173, comment c ...........................................................29

RESTATEMENT (SECOND) OF TRUSTS § 164 (1957) ........................................................................12

vii

MERIT BRIEF OF APPELLANT - RELATOR BARBARA MARCHIANO

FACTS

iVlarchiano's Job and Her Injuries

The Relator, Barbara Marchiano, was for nearly 20 years an instructional aide for the

Lockland City Schools. As of the last day she was able to work, Marchiano was "responsible for

assisting in eveiy lS" grade classroom and helping teachers prepare classroom materials." She

taught reading groups and conducted "`small group' and òne on one' educational intervention

session[s] for `special needs' and àt risk' students." (R. 190).'

Marchiano's job kept her on her feet most of the day (R. 190), toting heavy bins (up to 50

pounds (R. 035)) of "reading and intervention materials" to remote locations throughout a three-

story building. (R. 190). She was also required to physically restrain students who were "acting

out," to escort students to the office and elsewhere (R. 190, 191), and to stand to supervise

lunchroom and playground activities. (R. 035).

Marchiano's disability has its origins in a December 1997 incident in which "an autistic

student lunged across the room and landed on top of her, causing her to hit her head on the back

table and hit the back of her neck." (R. 174; see also R. 191). The accident produced immediate

head, neck and back pain, and pain in her right wrist that progressed into her arm. (R. 174).

Marchiano eventually "was diagnosed with myofascial pain and treated with physical therapy

and myoneural blocks." (R. 174). She was also seen by Dr. Mitchell Simon, a pain specialist,

who treated her with epidural steroid injections and nerve root injections, "and she was making

some progress especially when these were combined with intensive physical therapy." (R. 174).

1 The citations are to the record prepared during the SERS administrative process and filed withthe court of appeals. It is reproduced verbatim in Relator's S.Ct. R. VII Supplement filed

herewith.

1

Marchiano was also started on Kadian, a narcotic pain medication, "which did also significantly

improve her symptoms." (R. 174).

Although Marchiano filed a worker's compensation claim following the injury, she

continued to work. In several letters written in support of her disability claim, Marchiano's

principal, Donna Hubbard, and a co-worker, Meredith Fritsch, attested to the effort Marchiano

continued to exhibit despite the pain.

Hubbard wrote that she had obseived Marchiano and had concluded that Marchiano was

disabled from working:

Many times Barb arrived at work and tried to finish the day but was unable due tothe severe pain she was experiencing. Escorting students to and from areas,carrying reading materials and lengthy playground supervision duties isphysically demanding on a health person. Barb is a very conscientious employeeand demonstrated much pride in her ability to relate to the children as an educator.I feel she can no longer perform her duties as an Instnictional Aide due to herdeteriorating physical strength. [R. 033].

Many days she worked in pain and we were amazed that she was able to functionat all. [R. 034]

Fritsch witnessed the accident and reported that she had observed "on many occasions"

since that time, Marchiano's "attempting to ful6ll her duties ... after the accident." Many times

Marchiano worked while "appearing to be in physical pain." (R. 031).

While continuing to work, Marchiano received periodic myelographic and epidural

steroid injections from Dr. Simon. (R. 055-56, 061-62, 064-65, 069-70, 076-77). Something

went wrong, however, with an injection she received on April 27, 2004. (R. 078). Marchiano

testified that it was common for her to feel numbness in her head for a period of time after the

injections, but that the numbness eventually subsided. (R. 010). The numbness from the April

27, 2004, injection, did not wear off. (R. 010). She went to a hospital emergency room on May

2

1, 2004 (R. 082-83). She was seen by a neurologist who suspected either that the lidoderm had

acted as a neurotoxin, or perlraps that Dr. Simon had nicked the nerve itself: (R. 010).

From that point forward, Dr. Simon's notes reflected that Marchiano consistently

suffered from "inh•actable" pain. (R. 084-93, 099-103, 106-07, 11, 116-17). While Marchiano

thereafter was examined by a variety of physicians, none was successful in pinpointing the cause

of the pain.

Marchiano's Disability Claim

Marchiano submitted an application for disability retirement on June 30, 2005. (R. 193-

94). She reported that she could not work because "[t]he constant pain from the injuries is

excruciating ... [and] the medication used to treat these symptoms is debilitating, both physically

and mentally." (R. 191). She reported that she would not be able to carry the 50 pounds of

books and supplies and that she could not "spend more than a few minutes at a time on [her] feet

without need for rest." (Id.). She also reported that due to the combined effects of the "spinal

injuries, the occipital neuropathy, and the medications, [she had] not been able to drive since

2004." (Id.).

Marchiano's application was supported by an Attending Physical Report from Dr.

Christopher Sweeney, who certified that Marchiano was disabled by cervical disk disease,

occipital neuralgia, opioid tolerance, and myofascial pain. (R. 185). Marchiano's application

was also supported by other medical records. Dr. Ann Tuttle, a pain management specialist,

reported that Marchiano "holds her head listed significantly to the left" as a result of the April

27, 2004 injection. (R. 174). She added that Marchiano "has continued with her home exercise

program that she learned through physical therapy and has maintained adequate range of motion.

However, she is unable to hold her head up in a normal fashion."

3

Dr. Tuttle's report notes that Marchiano had "clinically declined" after the April injection

episode, "with significant decrease in her overall functional level." (R. 174), Dr. Tuttle also

observed that Marchiano could "barely perform the activities of daily living." (R. 175). Dr.

Tuttle reported her impression as follows:

Cervical degenerative disc disease with myofascial painOccipital neuralgiaSignificant psychosocial distress related to her pain and disabilityOpioid tolerance [R. 176].

In December, 2005, SERS referred Marchiano to Dr. Paul J. Cangemi, an orthopedist.

(R. 165, 167, 157). After examining Marchiano and reviewing her records, Dr. Cangemi

certified that Marchiano "was incapacitated as an Instructional Aide and unable to perform the

duty for which they were formerly responsible as of 7/I 1/2005 and for a continued period of at

least 12 months." (R. 162). Dr. Cangemi's certification included a five-page letter (R. 157-161)

that discussed his observations and findings. He concluded:

Dr. Christopher Sweeney has indicated on April 11, 2005 that he considers her tobe disabled for at least the next 12 months as a result of the following conditions:1) Cervical disc disease. 2) Occipital neuralgia. 3) Opioid tolerance. 4)Myofascial pain. Considering the fact that these are the conditions for which Iwas asked to make a determination, I would concur that she is disabled on thisbasis. I realize that the main symptom is that of pain, which is very difficult tomeasure. I would not state that she is disabled on the basis of cervical discdisease, but since I am forced to consider the other conditions listed above, I thinktherefore that the pain has to be considered a disabling feature. [R. 160]

The Medical Committee's First Review

The Board apparently employs three physicians to serve as a Medical Advisory

Committee ("MAC"): Dr. Timothy J. Fallon, Dr. Charles F. Wooley, and Dr. Marjorie

Gallagher. Gallagher is identified as a psychiatrist; Fallon's and Wooley's credentials are not in

the record.

4

The MAC reviewed Marchiano's file following Dr Cangemi's review.2 Fallon briefly

summarized the evidence and even more briefly summarized Dr. Cangemi's report, particularly

noting "that objective findings seem to be sparse in regards to supporting disability." (R. 155).

Fallon suggested that Marchiano's pain appeared to be "somatic" and recommended a

psychiatric examination that could also incorporate an evaluation of "opioid tolerance." Fallon

mentioned Dr. Sweeney's opinion, but did not discuss it or explain why he found it an

insufficient basis to approve disability. (Id.).

Wooley barely referred to the underlying record, premisiug his opinion solely upon Dr.

Cangemi's report. Despite Dr. Cangemi's conclusion, however, that Marchiano was disabled,

Wooley "was impressed by the lack of objective medical data to support disability." He opined,

therefore, that Marchiano was not disabled. (R. 154). Wooley did not mention the certification

by Marchiano's physicians that she was disabled.

Gallagher's letter was longer but, like Wooley's and Fallon's letters, contained little

analysis; rather, the majority of her letter described Marchiano's condition. It did not mention

the opinions of any of Marchiano's physicians. (R. 152-53). Gallagher recommended a

psychiatric examination, based upon her summary of Dr. Cangemi's report:

According to Dr. Cangemi, Ms. Marchiano has resolved acute cervical strain,mild degenerative disc disease cervical spin[e] with no evidence of radiculopathyor myelopathy, opioid tolerance, somatoform pain disorder, and occipitalneuralgia, moderate in severity. In Dr. Cangemi's opinion, Ms. Marchiano isdisabled based on her pain symptoms. [R. 153].

In a subsequent letter, Fallon reported that the Medical Advisory Committee had met:

"We reviewed the report of Dr. Cangemi in which he indicated significant opioid usage, and her

symptoms seemed out of context for objective findings. It was felt that a psychiatrist evaluation

2 The record does not disclose who selected Dr. Cangemi to evaluate Marchiano, nor does itreveal why Dr. Cangemi, an orthopedist, was asked to evaluate a neurological condition.

5

was indicated prior to final determination of her status." (R. 151). Wooley and Gallagher wrote

similar letters. (R. 149, 150). None of the letters discussed the findings or conclusions of

Marchiano's own physicians.

Dr. James Hawkins

Marchiano was instructed to see Dr. James Hawkins for a psychiatric evaluation on

March 13, 2006. (R. 147). Upon her arrival, it was immediately clear to Marchiano that Dr.

Hawkins was hostile to her and to her claim. For example, when Marchiano described her

treatment for depression with Dr. Schneider, Dr. Hawkins asked her if she had been sent to him

by her lawyer. (R. 049). In fact, Marchiano had been referred to Dr. Schneider (a psychologist)

by her primary care physician. (Id.). Marchiano further describe her encounter with Dr.

Hawkins as follows:

I went to see this Dr. Hawkins. Um ... he was very aggressive. Um, he took alook at the medications I was on and he actually used the word "junkie." Um, Itold him that I don't have any cravings for these meds. I'd throw them all in theriver if ... if I could. Um, I've also been told at I can'tjust stop taking them. Youknow. Or I would suffer physically. And, um, he told me, and I'm, pardon mylanguage but, he said that my doctor's had basically asked me if I had ever heardthe phrase um ... being screwed without being kissed. And I apologize for sayingthat but that's what he said. Um, throughout the whole interview, he waseverything I said he would rebut um ... he would ... it was just really nasty. I gotto the point where I was just agreeing with him ... to get out of the room. Youknow, I was in tears at times. Um, and um, I've never been treated like thatbefore. I mean, it was a shock. When I sat down he said do you know why youare here? And I said "well I know that ... that I have recently been diagnosedwith depression so I assume that's why I'm here." And he said no, you are herebecause um, the medical doctor was kind of wishy-washy and they needsomebody to make a real decision. And um, you know, and the whole interview... Like I said, I had never been treated like that before." (R. 011-12).

Following his examination, Dr Hawkins prepared a 10-page letter that accompanied his

certification that Marchiano was not disabled. In his letter, Dr. Hawkins reported that "[t]he

purpose of the examination was to determine the presence of a psychiatric condition resulting in

6

impairment such that the patient would not be able to perform her usual job as Instructional Aide

and leading to disability defined as a condition permanent in character or from which recovery

cannot be anticipated within 12 months." (R. 136), Dr. Hawkins then opined that Marchiano

was not disabled. The most critical of Dr. Hawkins' findings is the following:

I have read the job description of an Industrial Aide. Her cognitive dysfunctionwould likely prevent completion of her duties. I think it is possible that she couldreturn to work within 12 months if she were detoxified, thus I cannot support herdisability. [R. 144, emphasis added].

The Medical Advisory's Second Review

All members of the Medical Advisory Committee parroted Dr. Hawkins' conclusions, but

without Dr. Hawkins's qualifiers. Pallon wrote:

Dr. Harvkins felt that she did not meet medical criteria for a somatization disorderand felt she had a mood disorder associated with opioid use. He felt thatcognitive dysfutiction associated with her medication use was temporarilydisabling but not for a period greater than 12 months, and he recommendeddetoxification. [R. 131 ].

Gallagher's letter was similar: "In Dr. Hawkins' opinion, Ms. Marchiano is not

incapacitated from her job and is able to work." (R. 130). Wooley similarly relied on Hawkins's

conclusion: "Conclusion: not permanently disabled." (R. 128). Dr. Edwin Season, the Board's

medical director, then issued a letter to SERS recommending that disability retirement be denied.

(R. 127). The Board notified Marchiano accordingly. (R. 126).

Marchiano's Appeal

Marchiano appealed, submitting substantial additional medical evidence. Marchiano

submitted an opinion from Fred R. Moss, MD., a psychiatrist, who concluded that Marchiano

was disabled by depression:

It was Dr. Schneider's opinion that the patient met the criteria for dysthymicdisorder after doing a mental status examination and an MMPI-2. He felt that it

7

was associated directly with the injury from 1997 and that the symptoms hadpersisted for more than two years.

Reviewing the DSM-IV, I find that the patient does meet he criteria for dysthymicdisorder. The patient has insomnia, hypersomnia, and is depressed most of theday every day for a period of greater than two years. She therefore meets thecriteria for dysthymic disorder. [R. 119].

The reference to MMPI-2 is to the Minnesota Multi-Phasic Personality Inventory, an

objective measurement of mental illness that is known as the "gold standard" for psychological

assessment.

Relevant to a range of contemporary applications, the MMPI-2 instrumentremains the most widely used and widely researched test of adultpsychopathology. Used by clinicians to assist with the diagnosis of mentaldisorders and the selection of appropriate treatment methods, the MMPI-2 testcontinues to help meet the assessment needs of mental health professionals in anever-changing environment.[http://www.pearsonassessments.com/tests/mmpi 2.htm]

The MMPI-2 interpretive report is included in the record (R. 016-020), together with a

cover letter from Dr. Dennis J. Schneider. Dr Schneider wrote:

Her test profile was valid and interpretable. There were significant elevations onthe hysteria, depression and hypochondriasis scale. There were also significantelevations on the schizophrenic and pyschasthenia scales. Part of theinterpretation of her profile indicates that she is plagued by depression andanxiety and has difficulty managing routine affairs. She endorsed a number ofitems suggesting poor memory, concentration problems and difficulty makingdecisions. Individuals with her profile configuration usually show chronicpsychological problems including tension, anxiety and feeling pain more intenselythan other patients. [R. 015].

Dr. Schneider noted that all of these problems were "work prohibitive" and that Marchiano

continued to be disabled.3

3 Dr. Schneider further observed that Marchiano had not been comprehensively treated fordysthymic disorder since her claim was subject to the worker's compensation system and herdysthymic condition had just been allowed in June, 2006. (R. 015).

8

Marchiano also submitted a report by a neurologist, Usman A. Siddiqui, MD, PhD. (R.

112-114). Dr. Siddiqui's examination substantiated Marchiano's neurological symptoms. He

found that her cranial nerves 2-12 were "grossly intact except slight decreased sensation in the

right lower facial area." (R. 113). He noted that "[p]atient has slight decreased sensation in the

right lower facial area and right occipital and tip of index and middle fingers." He observed

"slight tremors" in Marchiano's hands "and slight dysmetria with finger to nose testing." He

also noted that Marchiano's gait was "[s]low with slight favoring right leg." (Id.). He recorded

his impressions as:

1)2)3)

Cervical pain and numbness in the right hand.Right facial numbness and right occipital neuralgia.History of lumbosacral pain. [R. 114].

Dr. Siddiqui also recommended further neurological testing. (R. 114).

Finally, Marchiano submitted statements from the two physicians who had been treating

her the longest. Dr. Simon wrote: "Obviously, it is a debilitating condition and we are trying to

move her forward, but there also is a strong component of neuropathic pain associated with this

work-related pain..." (R. 117). Dr. Sweeney sent a longer letter:

Barbara Marchiano has been a patient of this practice for over 20 years. She'ssuffered chronic, disabling pain since an incident at the school wliere she wasworking as an instructionary assistant. Her work has been extensive andunfortunately her findings have been minimal on objective exam, which hasresulted in denial of Disability Benefits. However, she never had symptomssimilar to those described prior to her incident, and her pain, although difficult tocharacterize is severe, as would be expected with facial pain.... [R. 037].

9

The Medical Advisory Committee's Final Review

Marchiano's additional medical evidence was essentially ignored by two members of the

Medical Advisory Committee. Wooley cataloged the new information, then concluded: "I did

not find significant objective medical information not considered by SERS. Disability had not

been established." (R. 006), Gallagher wrote: "[T]here is no new information provided that

would result in a change of my original opinion regarding Ms. Marchiano's disability

determination." (R.008).

Fallon, however, suggested a second psychiatric examination: "[I]t is my medical

opinion that additional medical information would be helpful in making a determination. I

would suggest that an independent medical evaluation by Dr. Richard Claiy to determine her

status at this time would be helpful." (R. 007). Fallon's recommendation, however, was

evidently rejected, as all members of the Medical Advisory Committee subsequently

recommended that the application be denied. (R. 003, 004, 005). Dr. Season advised the

Committee of the Medical Advisory Committee's recommendation (R. 002), and the Board

denied Marchiano's appeal. (R. 001).

Marchiano then filed a mandamus action in the Court of Appeals for Franlclin County.

The Court of Appeals declined to issue the writ, finding, inter alia, that the underlying decision

was supported by "some evidence." Marchiano now appeals to this Court as a matter of right.

10

ARGUMENT


A decision by the Board of the School Employees Retirement System to grantor to deny an application for benefits is a fiduciary decision. R.C. §3309.15,applied. Metropolitan Mitt. Life Ins. v. Glenrz (2008), 128 S. Ct. 2343,followed. State ex rel. McMaster v. School Employees Retirement Sys. (1994),overruled.

When the Ohio General Assembly established the School Employees Retirement System,

it entiusted to a citizen board "the several funds created ... for the payment of retirement

allowances and other benefits provided by Chapter 3309 of the Revised Code." R.C. §3309.03.

The General Assembly denominated the members of the board "trustees," R. C. §3309.60, and it

expressly imposed upon the trustees and other SERS employees a series of fiduciary duties:

The board and other fiduciaries shall discharge their duties with respect to thefunds [1] solely in the interest of the participants and beneficiaries; [2] for theexclusive purpose of providing benefits to participants and their beneficiaries anddefraying reasonable expenses of administering the school employees retirementsystem; [3] with care, skill, prudence, and diligence under the circumstances thenprevailing that a prudent person acting in a like capacity and familiar with suchmatters would use in the conduct of an enterprise of a like character and with likeaims; and [4] by diversifying the investments of the system so as to minimize therisk of large losses, unless under the circumstances it is clearly piudent not to doso.

R.C. §3309.15 (brackets added) (reproduced at Appx. p. 96).

This description of the Board's fiduciary responsibility is identical to the fiduciary

responsibility imposed by the Employee Retirement Income Security Act ("ERISA") upon

fiduciaries of private sector retirement plans. See 29 U.S.C. §1104(a)(l)(A)-(D) (Appx. p.

ll

97).4 Federal courts interpreting this identical language have recognized that these duties are

firmly rooted in the common law.

[W]e recognize that these fiduciary duties draw much of their content from thecommon law of trusts, the law that governed most benefit plans before ERISA'senactment. See Central States, Southeast & Southwest Areas Pension Fund v.Central Transport, Inc., 472 U.S. 559, 570 (1985) ("Rather than explicitlyenumerating all of the powers and duties of trustees and other fiduciaries,Congress invoked the common law of trusts to define the general scope of theirauthority and responsibility"); H. R. Rep. No. 93-533, pp. 3-5, 11-13 (1973), 2Legislative History of the Employee Retirement Income Security Act of 1974(Committee Print compiled for the Senate Subcommittee on Labor of theCommittee on Labor and Public Welfare by the Library of Congress), Ser. No.93-406, pp. 2350-2352, 2358-2360 (1976) (hereinafter Leg. Hist.); G. Bogert &G. Bogert, LAW OF TRUSTS AND TRUSTEES § 255, p. 343 (rev. 2d ed. 1992).

l/arity Corp. v. Horve (1996), 516 U.S. 489, 496 (parallel citations omitted).

The General Assembly imposed fiduciary responsibilities upon every SERS agent or

employee who "[e]xercises any discretionary authority or control with respect to the

management of the system ... [or] [h]as any discretionary authority or responsibility in the

administration of the system." R.C. §3309.01(U) (Appx. p. 98).5 "The ordinary trust law

understanding of fiduciary àdministration' of a trust is that to act as an administrator is to

perform the duties imposed, or exercise the powers conferred, by the trust documents." Varity

Corp., 516 U.S. at 502, citing, inter alia, RESTATEMENT (SECOND) OFTRUSTS § 164 (1957).

4 That this language parallels ERISA is no accident. While it is commonly understood thatERISA does not apply to governmental plans, this is not precisely correct. Title I of ERISA,which is administered by the U. S. Department of Labor, by its terms does not apply togovernmental plans. 29 U.S.C. §1003(b)(1). Title II of ERISA, however, is administered by theU. S. Department of Treasury (Internal Revenue Service); Title II applies to every fundedretirement plan. See P.L. 93-406; see also 26 U.S.C. §457(e)(1)(A) (defining an eligibleemployer as, inter alia, "a State, political subdivision of a State, and any agency orinstrumentality of a State or political subdivision..."); R.C. §3309.811 (plan is intended to bequalified under the Internal Revenue Code of 1986); R.C. §3309.812 (same).' ERISA defines a fiduciary in the same manner. 29 U.S.C. § 1002(21)(A). (Appx. p. 99).

12

Among the duties imposed upon the Trustees by the General Assembly is the duty to determine

whether one of its members is eligible for a disability retirement benefit. R.C. §3309.39(E).

Applying identical principles, the U.S. Supreme Court has recognized that the decision to

award or to deny benefits is a fiduciary decision:

ERISA imposes higher-than-marketplace quality standards on insirrers. It setsforth a special standard of care upon a plan administrator, namely, that theadministrator "discharge [its] duties" in respect to discretionary claims processing"solely in the interests of the participants and beneficiaries" of the plan; itsimultaneously underscores the particular importance of accurate claimsprocessing by insisting that administrators "provide a`full and fair review' ofclaim denials[;]" and it supplements marketplace and regulatory controls withjudicial review of individual claim denials.

Metropolitan Life Ins. Co. v. Glenn (2008), 128 S. Ct. 2343, 2350 (internal citations omitted).

This Court has confronted this fiduciary argument before, albeit in a narrower context.

The relator in State ex rel. McMaster v. School Employees Retirement System (1994), 69 Ohio

St.3d 130 (1994), urged the court to find that SERS breached its fiduciary duty in the manner in

which it handled his claim. 'I'he Court (per ctiriam) declined to do so, asserting that SERS owed

the relator no fiduciary duty in that case. 69 Ohio St.3d 134.

Unfortunately, the Court appears to have reached its decision without the benefit of any

briefing or argument discussing the statutory standards in light of ERISA. For example, the

Court noted that SERS's fiduciary duties run only to participants and beneficiaries, and it

concluded that the relator did not become a participant or beneficiary until disability benefits had

been awarded. The terms "participant" and "beneficiary" are not defined in Chapter 3309; they

are ERISA terms. 29 U.S.C. §1002(7) (defining "participant"); 29 U.S.C. §1002(8) (defining

"beneficiary").

ERISA defines a participant as "any employee or former employee of an employer, or

any member or former member of an employee organization, who is or may become eligible to

13

receive a benefit of any type from an employee benefit plan which covers employees of such

employer or members of such organization, or whose beneficiaries may be eligible to receive any

such benefit." 29 U.S.C. § 1002(7). Applying this definition of participant, the United States

Supreme Court has held that a participant includes any person who has a "colorable claim" to

benefits. Firestone Tire & Rtibber Co. v. Bruch (1989), 489 U.S. 101, 117. Under this

interpretation, a claimant seeking disability benefits would be a "participant."

This Court also suggested, but did not hold, that the fiduciary duties set forth in R.C.

§3309.15 "seem[] to apply mainly to the exercise of due diligence in the investment of the

specified funds." 69 Ohio St.3d at 134. The statutory definition of "fiduciary," however, belies

that contention. While it is true that a fiduciary is defined as one who "exercises any

discretionary authority or control ... with respect to the management or disposition of its assets,"

3309.01(U)(1), the statute also identifies as fiduciaries those who "exercise[] any discretionary

authority or control with respect to the management of the system," R.C. §3309.01(U)(1), and to

those who have "any discretionary authority or responsibility in the administration of the

system." R.C. §3309.01(U)(3). If the fiduciary responsibility ran only to management and

investment of funds, the remainder of the definition would have no purpose.

In light of the plain language of the statute, and in light of more than 30 years of federal

experience in interpreting the same terms, it is clear that a decision either to award disability

benefits or to deny them is a fiduciary decision. To the extent that McMaster is at odds with this

conclusion, it should be overruled.

14


In light of the fiduciary standards imposed by the General Assembly on theBoard of the School Employees Retirement System, a decision of the Boardwill not constitute an abuse of discretion as long as it is reasonable in light ofthe evidence. R.C. §3309.15, applied. McDonald v. Western-Southern LifeIns. Co. (6th Cir. 2003), 347 F,3d 161, followed.

The Court has long held that a writ of mandamus will not issue unless the relator

establishes "(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent

to perform the act requested, and (3) that relator has no plain and adequate remedy in the

ordinary course of the law." State ex rel. Consolidated Rail Corp., v. Gorman (1982), 70 Ohio

St. 2d 274, 275. The Court has further noted that a clear legal right to relief exists where the

relator demonstrates an abuse of discretion, Kinsey v. Board of Trustees of Police & Firemen's

Disability & Pension Famd (1990), 49 Ohio St. 3d 224, 225, and that discretion is abused when a

board "enter[s] an order that is not supported by `some evidence."' Id. The Court of Appeals

determined that SERS did not abuse its discretion because its decision was supported by "some

evidence" in the record. Appx. p. 5, ¶8.

The "some evidence" rule has a long and storied history in this Court. As the Chief

Justice noted long ago, the "some evidence rule ... is currently and has been intermittently the

standard announced by this court." State ex rel. Gay v. Adihm (1994), 68 Ohio St.3d 315, 323

(Moyer, C.J., concurring). As best Relator can determine, the rule's first appearance as syllabus

law was in this Court's decision in State ex rel. Hutton v, Industrial Com. (1972), 29 Ohio St. 2d

9, when it was set out for the inverse proposition:

Where there is no evidence in the record to support or justify an order of theIndustrial Commission awarding 15% permanent partial disability and where allthe evidence in the record supports an extent of perrnanent partial disability equalto 40%, the action of the Industrial Commission in awarding only 15% disability

15

constitutes an abuse of discretion, subject to correction by an action in mandamus.(State, ex rel. Shewalter, v. Indus. Comm., 19 Ohio St. 2d 12, followed.)

29 Ohio St.2d at 11 (syllabus) (emphasis added). The converse first appears, again as best as

Realtor can determine, in State ex rel. Troveed v. Coltimbus Parcel Services, Inc. (1982), 69 Ohio

St. 3d 331 (1982):

The Industrial Commission does not abuse its discretion when some evidence ispresent to support the commission's conclusion that children who are receivingminimal support from a divorced parent with whom they are not residing are not"wholly dependent" upon the Parent within the purview of R.C. 4123.59.

69 Ohio St.3d at 331 (syllabus) (emphasis added).

The Court appears to have departed from the rule in State ex rel. Thompson v. Fenix &

Scisson, Inc. (1985), 19 Ohio St. 3d 76, in holding that the Industrial Commission abused its

discretion in determining that a claimant was not permanently disabled when the record

contained "reliable, probative, and substantial evidence in accordance with the law to support a

factual finding and determination that a claimant is permanently and totally disabled, and there is

no evidence to the contrary which meets such standards." 19 Ohio St.3d at 77 (syllabus). This

holding was overruled in State ex rel. Fiber-Lite Corp. v. Industrial Com. of Ohio (1988), 36

Ohio St. 3d 202:

Where the record contains some evidence which supports the commission'sfactual findings, such findings will not be disturbed. To the extent that ourdecision in State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St.3d 76, is in conflict with this standard, it is oveiruled.

36 Ohio St. 3d at 202 (syllabus) (parallel citations omitted). In between Fiber-Lite and

Thompson, the Court decided State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18,

holding:

This court's role in the review of mandamus actions challenging the IndustrialCommission's decision as to the extent of disability in cases involving multipleallowed conditions shall henceforth be limited to a determination as to whether

16

there is some evidence in the record to support the commission's stated basis forits decision. (State, ex rel. Anderson, v, Indus. Comm. [1980], 62 Ohio St. 2d 166,overruled.)

31 Ohio St.3d at 18 (syllabus) (parallel citation omitted) 6

Prior to Gay, the practice had been to remand cases to the Industrial Commission for

further consideration and issuance of an amended order when a court determined that an

Industrial Commission order did not comply with the Court's earlier decision in State ex rel. Noll

v. Industrial Comm. (1991), 57 Ohio St.3d 203 (requiring the Industrial Commission to set out in

writing the basis for its decision). In Gay, however, the Court affirmed the court of appeals'

judgment "that no useful purpose would be served by `remanding' the cause to the commission

to justify a decision that the appellate court apparently believed could not be justified." 57 Ohio

St.3d at 322. Thus, the Court held:

In a workers' compensation case involving permanent total disability, where thefacts of the case indicate that there is a substantial likelihood that a claimant ispermanently and totally disabled, courts are not and will not be precluded fromordering the Industrial Commission, in a mandamus action, to award permanenttotal disability benefits notwithstanding the so-called "some evidence" rule.

57 Ohio St. 3d at 318 (syllabus).

Finding the absence of "some evidence" supporting the Industrial Commission's

decision, the Chief Justice, joined by Justice Wright, concurred in the judgment. They dissented,

however, from the syllabus as a departure from the "some evidence" rule. "The some evidence

rule works." 57 Ohio St.3d at 324 (Moyer, C.J. concurring).

6 State ex relAnderson was aper curiam decision that established no syllabus law. In a briefdecision, and over the dissent of Justice Holmes, the Court determined there was "no evidence"supporting the Industrial Commission's decision because no physician who evaluated thecombined effect of the claimant's multiple conditions had determined that the claimant was ableto work. 62 Ohio St. 2d at 168-69.

17

The Chief Justice and Justice Wright dissented separately in State ex rel. Koonce v.

Industrial Comm. ( 1994), 69 Ohio St.3d 436. In aper curiam opinion, the Court, inter alia,

questioned the Commission's reliance upon and interpretation of a medical report and entered an

order compelling a permanent total disability award. The Chief Justice concluded that the Court

had conducted its own review of the record "and made its own judgment, thereby disregarding

the `some evidence rule."' 69 Ohio St.3d at 439. "A proper application of the rule in Gay has

now been extended to place this court once again, as it was a number of years ago, in the position

of second-guessing an administrative agency that should be permitted to exercise its discretion."

id.7

As this review demonstrates, the "some evidence" rule is a creature of the Court's

workers compensation jurisprudence. The Court has cited the rule in cases involving the various

retirement systems. See, e.g., State ex rel. Schaengold v. Ohio Pub. Emples. Ret. Sys., 114 Ohio

St. 3d 147, 150 (2007); Kinsey, 49 Ohio St. 3d at 225.8 The Court, however, has never set out

the "some evidence" rule as syllabus law in a retirement system case.

Decisions of the Industrial Commission are not fiduciary decisions. They are decisions

by a neutral tliird-party intended to resolve a dispute between two parties, one of whom, the

claimant, seeks to compel the other party, the employer or an insurance fund, to pay to the

7 Gay has never been overruled, although it has been distinguished on several occasions. It nowstands generally for the proposition that a court may enter an order awarding benefits in lieu ofremanding to the Industrial Commission where the record warrants. See, e.g. State ex rel. Franksv. Industrial Comm. Of Ohio (2003). 99 Ohio St.3d 35, 39 ¶28. No decision of this Court hasrelied upon or cited Koonce.R Curiously, this Court seems not to have invoked the "some evidence" rule in SERS cases. See,e.g, State ex rel. Lecklider v. School Employees Retirement System, 104 Ohio St. 3d 271 (2004);State ex rel. Stiles v. Sch. Emples. Ret. Sys., 102 Ohio St. 3d 156 (2004); and State ex rel.rWctdaster v. School Employees Retirement Sys., 69 Ohio St. 3d 130 (1994). Relator does not,however, rely on this distinction as a basis for her argument.

18

claimant money that otherwise rightfully belongs to the employer or insurance fund. While

decisions of the Industrial Commission are expected to be the product "good faith and sound

judgment," State ex rel. Gerspacher v. Coffinberry (1952), 157 Ohio St. 32 (syllabus 2), they are

not fiduciary decisions.

The duty of a fiduciary is "the highest order of duty imposed by law." Sallee v. Fort

Knox Nat'l Bank (6°' Cir. 2002), 286 F.3d 878, 891. "A fiduciary duty requires more than the

generalized business obligation of good faith and fair dealing." Id. "Many forms of conduct

permissible in a workaday world for those acting at arm's length, are forbidden to those bound

by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not

honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior."

j4leinhard v. Salmon (1928), 259 N.Y. 458, 464, 164 N.E. 545, 546 ( Cardozo, J.). See also

Glenn, 128 S. Ct. at 2350 ("ERISA imposes higher-than-marketplace quality standards on

insurers."); Ed S'chory & Sons, Inc. v. Society Nat'l Bank ( 1996), 75 Ohio St.3d 441, 442 ("The

term `fiduciary relationship' has been defined by this court as a relationship ìn which special

confidence and trust is reposed in the integrity and fidelity of another and there is a resulting

position of superiority or influence, acquired by virtue of this special trust.").

Thus, the common law (understood as including what were once the distinct rulesof equity) charges fiduciaries with a duty of loyalty to guarantee beneficiaries'interests: "The most fundamental duty owed by the trustee to the beneficiaries ofthe trust is the duty of loyalty .... It is the duty of a trustee to administer the trustsolely in the interest of the beneficiaries." 2A A. Scott & W. Fratcher, TRUSTS §170, 311 (4th ed. 1987) (hereinafter Scott); see also G. Bogert & G. Bogert, LAWOF TRUSTS AND TRUSTEES § 543 (rev. 2d ed. 1980) ("Perhaps the mostfundamental duty of a trustee is that he must display throughout theadministration of the trust complete loyalty to the interests of the beneficiary andmust exclude all selfish interest and all consideration of the interests of thirdpersons") ....

Pegram v. Herdrich (2000), 530 U.S. 211, 224.

19

The "some evidence" rule, which in the context of this case permits SERS to obtain the

opinion of one of its consulting physicians and deny a claim on the basis of that opinion alone,

despite overwhelming evidence to the contrary in the record, is simply not consistent with the

review of a fiduciary's decision, which is to be based solely in the interest of the beneficiaries of

the trust.

Relator does not, however, urge this Court to return to engage in de novo review of any

SERS decision. Neither does it urge to Court to abandon the traditional basis upon which it has

reviewed SERS decisions - for abuse of discretion. Rather, Relator urges the Court to eschew

the "some evidence" test as determinative of abuse of discretion in favor of a test that assesses

the extent to which the SERS's decision reflects the duty of loyalty it owes to its Members.

Here, once again, ERISA case law affords a useful example.

This Court has said, "An abuse of discretion occurs when a decision is unreasonable,

arbitrary, or unconscionable." State ex rel. Stiles v. School Employees Retirement System (2004),

102 Ohio St.3d 156, 158, ¶13. The federal formulation is no different. "When a plan

administrator has discretionary authority to determine benefits, we will review a decision to deny

benefits under "the highly deferential arbitrary and capricious standard of review." Sanford v.

Harvard Inclus., Inc. (6`h Cir. 2001), 262 F.3d 590, 595.9

The arbitrary and capricious standard is the least demanding form of judicialreview of administrative action. When applying the arbitrary and capriciousstandard, the Court must decide whether the plan administrator's decision wasrational in light of the plan's provisions. Stated differently, when it is possible tooffer a reasoned explanation, based on the evidence, for a particular outcome, thatoutcome is not arbitrary or capricious.

° Under ERISA, federal courts are to review disability claims de novo unless the plan documentconfers discretion upon the administrator. Firestone Tire, 489 U.S. at 115. Once the Courtannounced the rule, however, most plans and insurance policies were revised to confer discretionon the administrator. Thus, most of the decisions reviewed by courts in ERISA cases arereviewed for abuse of discretion.

20

McDonald v. YVestern-Southern Life Ins. Co. (6" Cir. 2003), 347 F.3d 161, 168-169 (citation and

quotation omitted).

Adopting this federal standard, moreover, does not impose upon SERS an obligation to

prefer the Member's physicians over its own. "Generally, when a plan administrator chooses to

rely upon the medical opinion of one doctor over that of another in determining whether a

claimant is entitled to ERISA benefits, the plan administrator's decision cannot be said to have

been arbitrary and capricious because it would be possible to offer a reasoned explanation, based

upon the evidence, for the plan administrator's decision." McDonald, 347 F.3d at 169.

The federal standard of review, however, does permit a reviewing court to assure that the

fiduciaiy making the claims decision is doing so in light of the fiduciary standards imposed upon

it. Thus, while a court's review of a claims decision remains deferential, a deferential review "is

not ... without some teeth." McDonald, 347 F.3d at 172. The Court's obligation to review the

underlying decision "inherently includes some review of the quality and quantity of the medical

evidence and the opinions on both sides of the issues. Otherwise, courts would be rendered to

nothing more than rubber stamps for any plan administrator's decision as long as the plan was

able to find a single piece of evidence - no matter how obscure or untrustworthy - to support a

denial of a claim." Id.

The McDonald case illustrates the federal rule in practice. McDonald had been receiving

disability benefits from Westem-Southern Life Insurance Company for a considerable period of

time. His own physicians, as well as previous reviewers hired by Western-Southern, had

continually certified him as disabled. In 1997, Western-Southern required McDonald to submit

to a psychiatric examination by Richard M. Clary, M.D. Dr. Clary submitted a report concluding

that McDonald "might be able to return to work in a very low stress environment on a limited

21

trial basis." 347 F.3d at 164. Based on Dr. Clary's opinion, Western-Southerrt terminated

McDonald's benefits.

McDonald exercised his right to an administrative appeal and challenged Clary's opinion

as equivocal and insufficient to support the termination. Western-Southern then spoke with

Clary by telephone, advised him of the substance of McDonald's appeal, and invited him to

"clarify his previous findings and conclusions." 347 F.3d at 365. Clary then submitted an

addendum to his initial report, in which he wrote, "In my opinion, Mr. McDonald is not stiffering

from any psychiatric or psychological impairment that is severe enough to prevent him from

returning to work but he, in fact, does not want to return to work." Id. Based on Dr. Clary's

addendum, Western Southern denied McDonald's appeal.

The court found Western-Southern's decision to be arbitrary and capricious:

[W]e believe that Dr. Clary's supplemental report was an insufficient basis uponwhich to determine that McDonald could engage in an occupation for wages. Inhis supplemental report, Dr. Clary was much more forceful in his conclusion thatMcDonald was able to engage in gainful employment. In fact, Dr. Clary went sofar as to accuse McDonald of malingering in his ability to return to work ....

Although the district court found that there was no evidence of bias by Dr. Claryand although there was nothing untoward about Western-Southern contacting Dr.Claiy in order to have him clarify his initial report, it is noteworthy that Dr. Clarybecame more definite in.his opinion only after he was contacted by Western-Southern. In his supplemental report, Dr. Clary did not change his diagnosis ofMcDonald, did not modify the results of McDonald's MMPI-2, or alter his beliefthat therapy would be of little use to McDonald. Moreover, he did not re-examineMcDonald, nor did he receive any new medical evidence or reports upon which tobase his clarified conclusion. In fact, the only new medical evidence submittedafter Dr. Clary's initial report was reports from Dr. Goodman and Dr. Hamdorf inwhich they reiterated their opinions that McDonald was disabled and whichattempted to rebut Dr. Clary's conclusions contained within Dr. Clary's initialreport.

Therefore, we agree with the district court that Dr. Clary's supplemental reportshould be discounted. Dr. Clary's supplemental report was significantly differentthan his initial report without any justification for the change, other than thetelephone contact from Western-Southern.

22

McDonald, 347 F.3d at 171.10

Private sector employees seeking disability benefits are entitled to a "reasoned" decision.

Elliott v. Metro. Life Ins. Co. (6'h Cir. 2006), 473 F.3d 613, 617 (when the standard of review is

deferential, a reviewing court "will uphold the administrator's decision ìf it is the result of a

deliberate, principled reasoning process and if it is supported by substantial evidence."'). Under

the identical fiduciary standard, public employees deserve no less.


A Relator in a mandamus action seeking an award of disability benefits ispermitted to conduct limited discovery for the purpose of establishingwhether an examining physician is competent and disinterested. Ohio R.Civ. P. 26, applied. R.C. §3309.39(C), applied.

On August 22, 2007, the Magistrate issued an order establishing the briefing schedule in

this case "[u]less a motion for conference is filed within ten days." On August 31, 2007, Relator

filed a motion requesting a conference "for the puipose of discussing the limited discovery she

wishes to conduct in this case, establishing a deadline within which discovery is to be completed,

and setting a revised briefing schedule." Relator's Memorandum in Support of Motion for

Conference at 2. Citing no authority, the Magistrate summarily denied the motion "[blecause the

only evidence which this Court can consider in this mandamus action is the evidence already

10 The court was also troubled by another statement in Dr. Clary's report: "Another reason whyhis supplemental report should be discounted is because Dr. Clary concluded that McDonald'schallenge to Western-Southern's termination of his LTD benefits was indicative of his ability toreturn to work: Ìn my medical opinion, the vigorous pursuit of disability claim would argueagainst disability for severe depression.' This `medical' conclusion, of course, is absurd andwould render meaningless the statutory right to file suit in district court in order to challengedenials of ERISA benefits and denials of disability insurance benefits and supplemental securityincome under the Social Security Act." 347 F.3d at 172 n. 13.

23

presented to the School Employees Retirement System." Magistrate's Order, Sept. 28, 2007

(Appx. p.21). The court of appeals sustained the Magistrate's decision over Relator's objection.

(Appx. p. 4, ¶4).

R.C. §3309.39(C) permits SERS to require a claimant to submit to a medical examination

by a "competent and disinterested" physician. Unless an examining physician is irrebutably

presumed to be "competent and disinterested," a claimant must be permitted to conduct linlited

discovery to ascertain whether this standard is met.

The Ohio Rules of Civil Procedure "prescribe the procedure to be followed in all courts

of this state in the exercise of civil jurisdiction at law or in equity," subject to exceptions not

applicable in this case. Ohio R. Civ. P. I(A). Under the civil rules, "Parties may obtain

discovery regarding any matter, not privileged, which is relevant to the subject matter involved

in the pending action ...." Ohio R. Civ. P. 26(B). There is nothing inherently objectionable to

the conduct of discovery in a mandamus action, see, e.g., State ex rel. Cittzens for Open,

Responsive & Accounta8le Gov't v. Register (2007), 116 Ohio St. 3d 88, 92 (denying motion for

protective order seeking to prohibit relator from deposing respondent), and neither the magistrate

nor the court of appeals identified any authority in support of its holding.

It is true, as the court of appeals noted, that its review of the SERS decision is confined to

the record created during the SERS administrative process. Relator did not seek discovery,

however, for the purpose of admitting new evidence of her disability. Relator sought discovery

to determine whether the independent physicians who examined her were "competent and

disinterested," as the statute requires them to be.

Without the opportunity to conduct discovery on a limited basis, there is no assurance

that a physician selected by SERS is either competent or disinterested. While every claimant

24

would hope that the SERS-appointed physician would be truly independent, "we live in a time

when 'independent medical examiners' are not always independent. The examiners are

frequently paid by large corporations and large governmental entities which have a vested

interest in not paying benefits." State ex rel. Copeland v. Sch Empl. Ret. Syst. (10`h Dist. App.,

Aug. 15, 1999), 1999 Ohio App. Lexis 3549 at * 17-18 ((Tyack, J. dissenting). See also Black&

Decker Disability Plan v. Nord (2002), 538 U.S. 822, 832 ("[P]hysicians repeatedly retained by

benefits plans may have an incentive to make a finding of `not disabled' in order to save their

employers money and preserve their own consulting arrangements,"); Kalish v. Liberty

Mutatal/Liberty Life Assur. Co. of Boston (6`h Cir. 2005), 419 F.3d 501, 507-508 ("[A] plan

administrator, in choosing the independent experts who are paid to assess a claim [has] a clear

incentive to contract with individuals who were inclined to find in its favor that [a claimant] was

not entitled to continued [disability] benefits"),

Relator agrees that a reviewing cout-t is limited to considering the records generated by

SERS. She seeks discovery only for the limited purpose of ascertaining any bias or

incompetence on the part of the reviewing physicians. Compare Wilkins v. Baptist Healthcare

Sys. (6`' Cir. 1998), 150 F.3d 609, 618 (Gilman, J. concurring) ("The only exception to the ...

principle of not receiving new evidence at the district court level arises when consideration of

that evidence is necessary to resolve an ERISA claimant's procedural challenge to the

administrator's decision, such as an alleged lack of due process afforded by the administrator or

alleged bias on its par[.").

25


In light of the fiduciary standards imposed by law on the Board of the SchoolEmployees Retirement System, the Board must specifically state the evidenceit relied upon and explain the reasons for any decision denying anapplication for disability benefits. R.C. §3309.15, applied. State ex rel. Nollv. Indus. Comm. (1991), 57 Ohio St.3d 203, followed and extended. State exrel. Lecklider v. School Employees Retirement System (2004), 104 Ohio St.3d271, overruled.

Relator invites this Court to reconsider its holding in Lecklider v. School Employees

Retirement System (2004), 104 Ohio St.3d 271, 272, that SERS has no duty "to specifically state

the evidence it relied upon and explain the reasons for its decision to deny her application for

disability retirement benefits." The Court should reconsider its holding for three reasons.

First, under current authority, the court of appeals applies different rules to different

retirement systems, for no apparent purpose. Following this Court's decision in Noll, the court of

appeals has required written explanations from the Police & Firemen's Disability and Pension

Fund, State ex rel. Kidd v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund

(1991), 66 Ohio App. 3d 647, and from the Public Employees Retirement System. State ex rel.

Green v. Public Emples. Retirement Sys. (10`h Dist. App., June 22, 1999), 1999 Ohio App.

LEXIS 2830. This Court's decision in State ex rel. Pipoly v. State Teachers Retirement Sys.

(2002), 95 Ohio St.3d 327, precludes the court of appeals from requiring a written explanation of

decisions rendered by the State Teachers Retirement System, and Lecklider precludes the court

of appeals from applying the rule to SERS.

Second, the Court should require SERS to specifically state the evidence it relied upon

and explain the reasons for its decision in aid of the Court's jurisdiction and as an adjunct to the

Court's obligation to review the reasonableness of the SERS decision. "The remedy by writ of

26

mandamus did not originate with the legislature but with the courts, and is said to have been in

use as early as the thirteenth century." State ex rel. Yfoyer v. Baldwin (1908), 77 Ohio St. 532,

537. Id. at 537, "The jurisdiction in mandamus that is conferred by the constitution is the

common law jurisdiction as it was then exercised in this state, and it is not in the power of the

legislature either to add to or take from it." Id. at 538 (emphasis added).

The Court's obligation in cases such as this is to determine whether the SERS decision

was, inter alia, "unreasonable." If the SERS Board does not communicate the "reason" upon

which its decision is based, it is logically impossible for the Court to determine whether the

decision is "unreasonable." Without a written decision from SERS, what the Court is doing, in

practice, is reviewing the record de novo and considering whether the Attorney General's

arguments, rather than the Board's, are reasonable. Cf. Plummer v. Hartford Life Ins. Co. (S. D.

Ohio, Jan. 5, 2007), 2007 U.S. Dist. Lexis 488 at *36 ("[W]hile reviewing the administrative

record, the Court may not consider a post hoc explanation of an administrative body's decision.

Administrators and their attorneys are not permitted to `shore up' a decision after-the-fact by

testifying as to the `trtte' basis for the decision after the matter is in litigation.")(internal citation

omitted).

In the context of the Industrial Commission, the requirement has served the Court well.

Noll arose, at least in part, from the Court's determination that it could not properly exercise its

legal obligation to review the reasonableness of an agency decision without a written explanation

of the rationale:

The time has come for the commission to recognize its responsibility to preparefact-specific orders which will be meaningful upon review. It is well-settled thatthe commission has the exclusive authority to determine disputed facts and weightof the evidence. ... However, a meaningful review can be accomplished only ifthe commission prepares orders on a case-by-case basis which are fact-specificand which contain reasons explaining its decisions. ... Such order must

27

specifically state what evidence has been relied upon to reach its conclusion and,most important, briefly explain the basis of its decision.

Noll, 57 Ohio St. 3d at 206 (emphasis added).

It is true, as the Court noted in Pipoly, that "Noll relied heavily on State es rel. Mitchell v.

Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, 484, where we granted a writ of mandamus

directing the commission to specify the basis for its decision, 'first and foremost, becaaise the

duty to so specify the basis for its decisions is imposed upon the [Industrial] Connnission by

stattate."' 95 Ohio St. 3d at 331 (emphasis in Pipoly).

Mitchell, however, also set forth a second, practical basis:

Secondly, a decision of a district hearing officer, a regional board of review, orthe commission which specifically sets forth the basis for the decision will enablethis court, as well as the Court of Appeals for Franklin County, to readily discernthe specific grounds relied upon and whether the record supports such a findingwhen a party to the proceeding initiates an action for a writ of mandamus. Ourtask will be eased by a succinct statement setting forth only that evidence reliedgpon in reaching a decision and why the claimant was granted or denied requestedbenefits.

Mitchell, 6 Ohio St. 3d 481 at 484 (emphasis added).

Pipoly also reflected a concern that the Court not arrogate to itself the prerogative of

creating the legal duty that a writ of mandamus would enforce. Pipoly, 95 Ohio St.3d at 331 ("It

is axiomatic that in mandamus proceedings, the creation of the legal duty that a relator seeks to

enforce is the distinct function of the legislative branch of government, and courts are not

authorized to create the legal duty enforceable in mandamus.").

The legal duty, however, that Relator seeks to enforce is the duty imposed by SERS to

grant her disability benefits when she is entitled to them. In the process of deciding whether she

is entitled to a disability retirement, SERS presumably reached a considered decision. The act of

writing it down is merely a ministerial act.

28

Finally, when it imposed its fiduciary responsibilities upon SERS, the General Assembly

necessarily imposed upon SERS the common law duty to inform. See, e.g., Bi.rler v. Central Pa.

Teamsters Health & Welfare Faind (3`d Cir. 1993), 12 F.3d 1292, 1300 (the "duty to inform is a

constant thread in the relationship between beneficiary and trustee,").

Although the terms of the trust may regulate the amount of information which thetrustee must give and the frequency with which it must be given, the beneficiaryis always entitled to such information as is reasonably necessary to enable him toenforce his rights under the trust or to prevent or redress a breach of trust.

RESTATEMENT OF THE LAW 2D, TRUSTS, § 173, comment c. See also In re SedgwiCk's Will

(Belmont Co. App. 1944), 74 Ohio App. 444, 461 ("The beneficiary has a right to receive

promptly any information which will guide him in determining whether his interests have been

properly served by the trustees.").

In the furtherance of this Court's exercise of mandamus jurisdiction, and in light of the

General Assembly's express imposition of common law fiduciary duties upon SERS, the Court

should overrule Lecklider and require SERS to state specifically the evidence it relied upon and

explain the reasons for its decision


Where a claimant presents competent, credible evidence that an examiningphysician is not disinterested or is not competent, the Board of the School

Employees Retirement System abuses its discretion if it nevertheless relies onthe medical opinion of the examining physician. R.C. §3309.15, applied.

R.C. §3309.39(C), applied.

Although the first physician to examine Relator, Dr. Cangemi, concluded that Relator

was disabled if her complaint of pain were believed, SERS required Relator to submit to a

second examination conducted by Dr. Hawkins. As Relator told the Board, Dr. Hawkins told her

29

that SERS had sent her to him because "the medical doctor was kind of wishy-washy and they

need somebody to make a real decision." (R. 012, emphasis added). Relator advised the Board

of other conduct she deemed to be hostile or unprofessional, yet the Board took no action to

strike Dr. Hawkins's opinion from the record, nor did it refer Relator to a different psychiatrist

for an additional examination.

SERS is permitted to have disability claimants evaluated by one or more physicians of its

choosing, provided that the physicians selected are "competent" and "disinterested" physicians.

R.C. §3309.39(C). Dr. Hawkins is neither disinterested nor competent to express the opinions

that he expressed; his opinions should be stricken.

As noted earlier, the United States Supreme Court has recognized "that physicians

repeatedly retained by beriefits plans may have an incentive to make a finding of `not disabled'

in order to save their employers money and preserve their own consulting arrangements." Black

& Decker, 538 U.S. at 832 (emphasis added). Marchiano was not permitted to conduct

discovery for the purpose of establishing that Dr. Hawkins is "repeatedly retained" by SERS and

others. A Lexis search, however, disclosed that Dr. Hawkins is, in fact, a professional witness.

See, e.g., State v. Ushry III (Dec. 1, 2006), 2006 Ohio 6287 (is` Dist. App.) (testifying as an

expert in a criminal case); State v. Honncrker (March 24, 2006), 2006 Ohio 1374 (is Dist. App.)

(testifying as an expert in a criminal case); State v. Leonard (2004), 104 Ohio St. 3d 54

(testifying as an expert in a criminal case); State ex rel. Tharp v. Consolidated Metal Products

(Nov. 26, 2003), 2003 Ohio 6355 (10`h Dist. App.) (testifying as an expert in a worker's

compensation case); State v. Johnson (July 11, 2003), 2003 Ohio 3665 (1s' Dist. App.) (testifying

as an expert in a criminal case); In the Matter of Deaconess Hospital of Cincinnati, Ohio (Dec. 9,

30

1993), 1993 Ohio App. Lexis 5850 (10th Dist. App.) (testifying as an expert in a Certificate of

Need case); State v. Hicks ( 1989), 43 Ohio St. 3d 72 (testifying as an expert in a criminal case). "

Professional witnesses have an obvious interest in shading their testimony so as to

preserve their consulting arrangements. That Dr. Hawkins is such a witness is evidence of bias.

Moreover, two additional cases provide a basis for believing that Dr. Hawkins "shapes"

his testimony to seive his own ends or those of his benefactor. State v. Honnaker (March 24,

2006), 2006 Ohio 1374 (151 Dist. App.) was a criminal case in which Dr. Hawkins was hired to

testify for the defense. The defendant, a patient at a treatment center, was charged with

kidnapping after she grabbed a psychologist and pushed a needle into her throat. In support of

Honnaker's insanity defense, Dr. Hawkins testified that

Honnaker, at the time of the offense, was experiencing a "manic episode precipitated byinappropriate medications." Dr. Hawkins stated that Honnaker's failure to recall theincident suggested "a delirium as a result of medications." Dr. Hawkins opined thatHonnaker's active mental illness, along with the combination of medications she wastaking, rendered her unable to appreciate the wrongfulness of her acts.

2006 Ohio 1374 at ¶13.

The trial court rejected the insanity defense, in part because it found Dr. Hawkins's

testimony not credible:

The trial court also expressed concerns about Dr. Hawkins's testimony. The courtstated, "I asked Dr. Hawkins since [Honnaker] claims that she has no memory ofthe events, the attack itself, how he could determine that, in her mind, what shedid was not wrong. The record won't reflect that because it is printed, but we allsat here and waited and waited and waited and Dr. Hawkins looked at the ceiling.He couldn't answer the question. He went back and reiterated his opinion that inhis opinion, she fit the criteria but he failed to answer the question."

Id. at ¶16 (emphasis added).

11 These cases are only those that have been reported at the appellate level. In light of thefact that most cases never reach the appellate level, one might fairly assume that thatactual number of cases in which Dr. Hawkins has been hired to testify is exponentiallylarger.

31

The second case of interest is a medical malpractice claim brought against Dr. Hawkins

by the guardians of a ward whose head caught fire while Dr. Hawkins was treating her with

electroconvulsive therapy. Powell v, Hawkins (151 Dist. App. 2007), 175 Ohio App.3d 138, 2007

Ohio 3557. The trial court had granted summary judgment in favor of Dr. Hawkins, but the

court of appeals reversed, finding that judgment had been granted based upon speculative

testimony offered by Dr. Hawkins that was not supported by the evidence.

Of relevance to this case was the Court of Appeals' observation that "Hawkins's

recollection of the fire was drastically different than that of the attending nurse. Hawkins

claimed that there had been a spark, followed by a small fire, which he blew out." 2007 Ohio

3557 at ¶5 (emphasis added).

But the attending nurse recalled that (1) as the therapy was administered, flameserupted at the right side of Hisel's head; (2) the flames reached the ceiling of theroom; (3) the flames were fueled by oxygen, which was coming from the oxygenmask lying near Hisle's head and from the oxygen ports in the wall; (4) theoxygen gauges were set at the maximum setting; and (5) Hawkins smothered theflames with a towel that had been lying on Hisle's stretcher. Hisle sustainedsecond- and third-degree burns to her face.

Ict. at ¶6.

The court found the plaintiffs' expert's testimony on the issue of probable cause much

more credible than Hawkins's and, therefore, reversed the trial court's entry ofjudgment in

Hawkins's favor:

The guardians' expert presented a theory of liability and used the facts of the caseto raise an issue of material fact as to causation that precluded summaryjudgment. Hawkins, on the other hand, merely presented a plethora of possibleand speculative causes in his defense, without citing any supporting facts orevidence; and in light of Schoulten's testimony, this minimal defense did notentitle Hawkins to summary judgment ....

Id. at ¶27.

32

A third indicia of bias is the hostility Dr. Hawkins exhibited toward Marchiano when she

appeared for her examination. He accused her of inventing her depression when he asked if "her

lawyer" had arranged for her psychologist. He said Marchiano's physicians had been "screwing"

her, and he referred to her as a "junkie." He was, in Marchiano's words, "aggressive" and

"nasty." Marchiano said she was "shocked" by his behavior, was reduced to tears, and finally

just agreed with everything he said simply to end the interview. Dr. Hawkins also all but

conceded his bias when he told Marchiano that she was in his office because "the medical doctor

[presumably Dr. Cangemi] was kind of wishy-washy and they need somebody to make a real

decision." (R. 012).

Yet another indicia of an expert's bias is his willingness to offer opinions outside his area

of expertise. See Willis v. ITT Educ. Servs., 254 F. Supp. 2d 926, 937 (S. D. Ohio 2003) ("Not

only does such an opinion lie outside the scope of his expertise, but the fact that he felt

compelled to render it calls into question his objectivity in evaluating the subject matter which he

is qualified to evaluate ... ").

Dr. Hawkins is a psychiatrist. He is neither a pain specialist, an orthopedist, nor a

neurologist, yet his first observation was the following:

Medical records do not provide objective findings to support her chronic pain complaints.Typically, acute cervical strain will resolve within a few months to a year. Thesymptoms attributed to occipital neuralgia seem extreme. [R. 144].

Judgments of this nature are plainly outside the scope of Dr. Hawkins's expertise.

Moreover, by suggesting that Marchiano be "detoxified" (R. 144) he is implying, if not asserting,

that Marchiano does not require the medications to treat her occipital neuralgia. Dr. Hawkins is

not competent to make such a judgment.

33

Marchiano does not challenge Dr. Hawkins's competency as a psychiatrist. His pivotal

opinions, however, concern areas that are outside of his field of specialization. He opined that

Marchiano's symptoms of occipital neuralgia "seem[ed] extreme," although he is not a

neurologist. And he opined that Marchiano's medication could be and should be discontinued,

although he is neither a pain specialist nor a neurologist and has no idea what effect the

discontinuation of the medications would have on Marchiano's pain.1Z Marchiano's treating

physicians have told her that she will always be taking pain medication. (R. 012).

As to the opinions Dr. Hawkins expressed that were outside of his expertise, he was not a

"competent" physician. R.C. §3309.39(C).


The Board of the School Employees Retirement System abuses its discretionwhen it relies for its decision on a medical opinion that is equivocal. State exrel. E6er/xardt v. Flexible Corp. (1994), 70 Ohio St.3d 649, applied.

"[E]quivocal medical opinions are not evidence." State ex rel. Certified Oil Corp. v.

Mabe (2007), 2007 Ohio 3877, ¶5 (Tenth Dist. App.), quoting State ex rel. Eberhardt v. Flexible

Corp. (1994), 70 Ohio St.3d 649, 657. "[E]quivocation occurs when a doctor repudiates an

earlier opinion, renders contradictory or uncettain opinions, or fails to clarify an ambiguous

statement. ... Repudiated, contradictory or uncertain statements reveal that the doctor is not sure

what he means and, therefore, they are inherently unreliable." Id.

Dr. Hawkins concedes that Marchiano was, at the time of her examination, unable to

work. (R. 144) (°I have read the job description of an Industrial Aide. Her cognitive

12 It is important to note that Dr. Hawkins did not suggest, in his written opinion, that Marchianowas engaged in dnig-seeking behavior. He did not diagnose her as abusing her medications. Hisdiagnosis simply acknowledged that anyone who takes opiates for an extended period of timenaturally becomes opioid intolerant.

34

dysfltnction would likely prevent completion of her duties."). With respect to the length that

Marchiano's cognitive dysfunction is expected to continue, however, Dr. Hawkins's opinion is

conditional and equivocal. He writes that it is "possible" (not "certain," not even "probable")

that Marciano "could" (not "can" or "will be able to") return to work within 12 months "if' (but

only if) she were detoxified. (R. 144). He further concedes that he cannot actually determine,

even if her neurologist and her pain doctor concurred with his suggestion that Marchiano's

medications be discontinued, whether she would remain disabled. (R. 144)("I ... believe that

detoxification from these substances would give a more accurate picture of her true disabilities.

... I would be happy to re-examine Mrs. Marchiano once she is detoxified from addictive

substances.").

Dr. Hawkins' opinion, therefore, is little more than speculation. He does not opine that it

is probable, or even likely, that Marchiano can ever return to work. He says it's merely

"possible" that she "could" return to work, and only "if' she is first detoxified. And the decision

to detoxify is out of his range of expertise and outside of his control.

Finally, Dr. Hawkins's opinion is ambiguous on the expected duration of Marchiano's

disability. In his opinion, dated March 20, 2006, Dr. Hawkins wrote, "I think it is possible that

she could return to work within 12 months if she were detoxified." The most natural reading of

that statement is that Dr. Hawkins believed that Marchiano might be able to return to work

within 12 months of the date of his opinion, March 20, 2006.

The statute, however, considers Marchiano to be eligible for disability retirement if her

disability is either permanent or presumed to be permanent for at least 12 months following the

filing of the application for benefits. R.C. §3309.39(C). SERS received Marchiano's application

on July 11, 2005. (R. 193-94).

35

Dr. Hawkins considered Marchiano to have been disabled through the date of his

examination on March 13, 2006. The issue for Dr. Hawkins, tlierefore, was whether he expected

Marchiano to remain disabled for an additional four months - or through July 13, 2006 - not for

an additional twelve months, which is the opinion he expressed. His opinion is ambiguous on

this critical issue and should therefore be disregarded.

CONCLUSION

The decision of the court of appeals should be reversed and the case remanded to the

court of appeals with instructions to issue a writ of mandamus to the SERS Board directing it to

award Relator a disability pension.

Tony erry ( 2 1)Law f i c s of To y. erry, LLC3300 Riverside Drive, Suite 125Columbus, Ohio 43221(614) 372-7114(614) 372-7120 [fax][email protected] for Relator

36

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief of Appellant was served on this^

day of September, 2008, by U.S. Regular mail upon the following counsel of record:

Todd A. Nist, Esq.Assistant Attorney General30 E. Broad Street26`h FloorColumbus, OH 43215-3428Attorney for Respondent

37

APPENDIX

38

IN THE SUPREME COURT OF OHIO

STATE OF OHIOEx rel. BARBARA MARCHIANO

Appellant,

vs.

On Appeal from the FrankIinCounty Court of Appeals,Tenth Appellate District

SCHOOL EMPLOYEES 'RETIREMENT SYSTEM Court of Appeals

Case No. 07AP-486Appellee.

NOTICE OF APPEAL OF APPELLANT BARBARA MARCHIANO

Tony C. Merry (0042471) (COUNSEL OF RECORD)Law Offices of Tony C. Merry, LLC3300 Riverside Drive, Suite 125Columbus, Ohio 43221(614) 372-7114(614) 372-7120 [fax][email protected]

COUNSEL FOR APPELLANT, BARBARA MARCHIANO

Todd A. Nist, Esq. (COUNSEL OF RECORD)Assistant Attorney GeneralState of Ohio30 E. Broad Street26`h FloorColumbus, OH 43215-3428

COUNSEL FOR APPELLEE,SCHOOL ELMPLOYEES RETIREMENT SYSTEM

I

JUL "-'' i" ?

CÊîf<. QF Cf1t1RTSUPRSNIE COUR f OF OHIO

Notice of Appeal of Appe[lant Barbara bIarchiano

Appellant Barbara Marchiano hereby gives notice of appeal to the Supreme Court of

Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate District,

entered in Court of Appeals Case No. 07AP-486 on June 10, 2008.

This case originated in the Court of Appeals. This appeal is an appeal as of right under S.

Ct. R. 1I(1)(A)(1). A copy of the Judgment Entry below is attached.

Respyeffahly submitted,

Tony . erry 4 71), Counsel of RecordLaw i es ofTot Merr LLCy,3300 Riverside Dri re uite 125Columbus, Ohio 43221(614) 372-7114(614) 372-7120 [fax][email protected]

COUNSEL FOR APPELLANT,BARBARA MARCHIANO

Certificate of Service

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counsel

for appellees Todd A. Nist, Esq., Assistant Attorney General, 30 E. Broad Street, 26`h Floor,

Columbus, OH 43215-3428 on this 7-8ay of Jyl , 2008.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Barbara Marchiano,

Relator,

V.

School Employees Retirement System,

Respondent.

No. 07AP-486

(REGULAR CALENDAR)

D E C I S t O N

Rendered on June 10, 2008^.,r

Law Offices of Tony C. Merry, LLC, and Tony C. Merry, forrelator. 0r^Nancy H. Rogers, Attorney General, and Todd A. Nist, for c--)respondent.

-.^

IN MANDAMUSON OBJECTIONS TO MAGISTRATE'S DECISION

KLATT, J.

(11} Relator, Barbara Marchiano, commenced this original action in mandamus

seeking an order compelling respondent, School Employees Retirement System

("SERS"), to vacate its decision denying her disability retirement and to enter an order

compelling SERS to grant her request for disability retirement.

(121 Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of

Appeals, this matter was referred to a magistrate who issued a decision, including

findings of fact and conclusions of law. (Attached as Appendix A.) Relying upon State

ex ret. Woods v. Oak Hill Community Mec 3 :tr. (2001), 91 Ohio St.3d 459, and State ex

No. 07AP-486 2

rel. Lecklider v. School Emp. Retirement Sys., 104 Ohio St.3d 271, 2004-Ohio-6586 at

¶23, the magistrate noted that there is nothing in either the governing statutes or rules

that require SERS or the members of the Medical Advisory Committee ("MAC") to state

the basis for its denial of disability retirement. The magistrate also rejected relator's

challenges to Dr. Hawkins' report. The magistrate found that Dr. Hawkins' report

constituted some evidence upon which SERS could rely in denying relator disability

retirement. Therefore, the magistrate has recommended that we deny relator's request

for a writ of mandamus.

(131 Relator has filed eight separate objections to the magistrate's decision. In

her first objection, relator contends that the magistrate erred in denying her discovery.

We disagree.

(14} Relator is not entitled to discovery because the sole issue for

determination in this mandamus action is whether SERS abused its discretion when it

denied^ relator's disability application. State ex rel. McMaster v. School Emp. Retirement

Sys. (1994), 69 Ohio St.3d 130, 133 (determination of whether applicant is entitled to

disability retirement is subject to mandamus review, which may be utilized to correct an

abuse of discretion in the proceedings below). That determination is limited to the

information contained in the record. Therefore, we overrule relator's first objection.

{15} In her second objection, relator contends that the magistrate erred by

refusing to require SERS to explain the basis for its decision. Again, we disagree.

1161 The magistrate correctly relied upon our prior decision in State ex rel.

Copefand v. SERS (Aug. 5, 1999), Franklin App. No. 98AP-1173, for the proposition

that nothing in the governing statutes or rules require SERS or the members of the MAC4

to explain the basis for the denial of disability retirement. This proposition of law was

No. 07AP-486 3

expressly adopted by the Supreme Court of Ohio in State ex rei. Pipoly v. STRS, 1995

Ohio St.3d 327, 2002-Ohio-2219, at ¶20; see, also, State ex rel. Woods, supra; State ex

rel. Lecklider, supra. Therefore, we overrule relator's second objection.

{17} In her third objection, relator asserts that the magistrate erred by

concluding there is some evidence to support SERS' decision. Essentially, relator

challenges the application of the "some evidence" standard to this mandamus action.

Relator asserts that this court should review a SERS decision to determine whether the

decision is "reasonable in light of the evidence." However, we cannot simply disregard

the applicable standard articulated by the Supreme Court of Ohio in Kinsey v. Bd. of

Trustees of the Police & Firemen's Disability & Pension Fund (1990), 49 Ohio St.3d 224,

226. In Kinsey, the court held that mandamus relief must be denied when there is

"some evidence" to support the retirement system's decision. When there is some

evidence to support the decision, the retirement system has not abused its discretion.

(18} Here, the magistrate applied the correct standard and did not err in finding

that Dr. Hawkins' report constituted some evidence supporting SERS' decision.

Therefore, we overrule relator's third objection.

{19} In her fourth and fifth objections, relator contends that the magistrate erred

by concluding that SERS considered all the evidence presented. We disagree.

{q[10} Other than the simple fact that relator disagrees with SERS' decision,

relator points to nothing in the record that suggests that SERS failed to fully and fairly

consider all the evidence in the record. As SERS points out, it reached its

determination after receiving the report of the MAC, which is required to review all

evidence and information submitted before making a recommendation. Ohio

Admin.Code 3309-1-40(F). We note tia: after originally reviewing all the medical

No. 07AP-486 4

evidence, the MAC determined that additional medical evidence was necessary before

it could submit its report. Relator's assertion that SERS failed to consider all the

evidence is without merit. Therefore, we overrule relator's fourth and fifth objections.

(111} Relator contends in her sixth objection that the magistrate erred by

concluding that relator waived her right to challenge Dr. Hawkins' independence by

failing to raise this issue before the SERS board. Relator asserts that she challenged

Dr. Hawkins' independence in a pre-hearing submission and in. the hearing before the

board. After reviewing the portions of the record relied upon by relator, we agree with

the magistrate's finding that relator never argued that Dr. Hawkins was not an

independent medical examiner due to a financial or other compromising relationship

with SERS. Nor does the record support a challenge to Dr. Hawkins' independence on

these grounds. Accordingly, we overrule relator's sixth objection.

{112} Relator contends in her seventh and eighth objections that the magistrate

erred in concluding that Dr. Hawkins was competent to express an opinion on the

necessity of pain medication for relator and that his opinion was unequivocal. We

disagree.

{113} First, as SERS points out, Dr. Hawkins did not offer an opinion on the

necessity of pain medication for relator. Rather, he opined that the medications were

impeding any ability to accurately determine if there was an underlying disabling

condition because the medications were causing relator's cognitive dysfunction and

depressed mood. The record does not support relator's assertion that Dr. Hawkins was

not competent to express this opinion. Essentially, relator wants this court to reweigh

the medical evidence. That is not our role in mandamus. Therefore, we find relator's6

argument unpersuasive.

No. 07AP-486 5

(114} Second, Dr. Hawkins' opinion is not equivocal. He stated that the

cognitive dysfunction relator was experiencing would likely prevent her from performing

her duties as an instructional aide. He also opined that the cognitive dysfunction was

caused by the medications she was taking. Lastly, he opined that if relator stopped

taking the medications (which was relator's desire), the cognitive dysfunction would

cease and relator could perform the duties of an instructional aide. Based on these

findings, we agree with the magistrate's determination that SERS did not abuse its

discretion when it relied on Dr. Hawkins' report in denying relator disability retirement.

Therefore, we overrule relator's seventh and eighth objections.

(115} Following an independent review of this matter, we find that the magistrate

has properly determined the facts and applied the appropriate law. Accordingly, we

adopt the magistrate's decision as our own, including the findings of fact and

conclusions of law contained therein. In accordance with the magistrate's decision, we

deny relator's request for a writ of mandamus.

Writ of mandamus denied.

SADLER and FRENCH, JJ., concur.

7

No. 07AP-486 6

APPENDIX A

IN THE COURT OF APPEALS OF OHiO



Relator,

V. : No. 07AP-486

School Employees Retirement System, : (REGULAR CALENDAR)

Respondent.

MAGISTRATE'S DECISION

Rendered on January 17, 2008

Law Offices of Tony C. Merry, LLC, and Tony C. Merry, forrelator.

Marc Dann, Attorney General, and Todd A. Nist, forrespondent.

IN MANDAMUS

(116} Relator, Barbara Marchiano, has filed this original action requesting that

this court issue a writ of mandamus ordering respondent, School Employees Retirement

System (" SERS"), to vacate its decision denying her disability retirement and to

determine that she is entitled to disability retirement instead.

8

No. 07AP-486 7

Findings of Fact:

{117} 1. In December 1997, relator was working as an instructional aid at

Lockland Elementary. Her job duties included, but were not limited to:

Teaching 3 Direct Instruction reading groups each morning.Direct Instruction is a very interactive reading program withmany large repetitive motions used to teach it properly, it isnot sedentary. Carrying heavy bins of reading material fromthe classroom to the teaching area.

Conduct small group. and one on one educational inter-ventions witfi at risk students who need extra help. Trackprogress and create reports to validate how these studentsare progressing. This also requires carrying heavy bins ofmaterials, sometimes up and down stairs.

Supervising a 45-min. lunch duty and a 15-min. playgroundduty. To do this properly requires repeatedly circling the areathe children are in to see that they are safe.

Responsible for helping the classroom teachers prepareedudational materials for the entire 1gt grade this includescopying, repetitive stapling of large packets, tracing andcutting with scissors as well as cutting shapes with theEllison machine (which requires some fcrce).

Required at times to attend to and sometimes restrainstudents who are physically acting out. If necessary escortthem to the office from wherever they may be, classroom,playground, cafeteria, hallway etc.

{118} 2. Relator's injury occurred on December 1, 1997. The injury occurred as

follows:

As you know, she actually has a fairly extensive historywhich began December 1, 1997 when an autistic studentlunged across the room and landed on top of her causingher to hit her head on the back of a table and hit the back ofher neck. She noted the immediate onset of pain in thehead, pain at the vertebral prominence and pain in the rightwrist. She developed progressive symptoms of right armpain over the next few weeks. * * *

9

No. 07AP-486 8

(119} 3. Relator was treated conservatively, had chiropractic treatment, and

was ultimately referred to a neurologist because her symptoms failed to resolve.

{q[20} 4. The results of an MRI taken in July 2001 revealed "[s]mall central disc

protrusion andlor spur at C6-7 with minimal cord impingement."

(9121} 5. In 2002, relator's treating physician, Mitchell E. Simons, M.D., began

treating relator with periodic myelographic and epidural steroid injections. The

treatments provided relator with significant relief from her pain. However, following a

treatment in April 2004, relator experienced numbness and consistent.pain. Although

relator was examined by a variety of physicians, the cause of the pain was never

explained.

{122} B. Relator submitted an application for disability retirement in June 2005.

The report from her treating physician, Christopher D. Sweeney, M.D., certified her as

disabled due to cervical disc disease, with the underlying conditions of occipital

neuropathy, opioid tolerance, and myofascial pain.

{123} 7. Relator also submitted the March 2005 report of Ann Tuttle, M.D. Dr.

Tuttle noted that relator's condition had declined following the April injection and that

relator reported having significant difficulties performing the activities of daily living. Dr.

Tuttle identified the following conditions from which relator was suffering: "Cervical

degenerative disc disease with myofascial pain," "[o]ccipital neuralgia," "[s]ignificant

psychosocial distress related to her pain and disability," and "[o]pioid tolerance." Dr.

Tuttle also noted that relator was currently taking the following medications: "Kadian"

(narcotic pain reliever), "Baclofen" (muscle relaxer), "Nexium" (used to treat gastro-

esophageal reflux disease), "Gabitril" (seizure control medication), "Klonopin" (seizure10

controllpanic disorder medication), "Actiq" (narcotic pain reliever), and "Dicyclomine"

No. 07AP-486 9

(used to treat irritable bowel syndrome). Dr. Tuttle later recommended that relator be

re-evaluated, both from a surgical and psychological standpoint, because of her pain

psychology.

{124) 8. SERS sent relator to Paul J. Cangemi, M.D., for an independent

medical evaluation. In his December 9, 2005 report, Dr. Cangemi noted that relator's

motor function, lateral bending, flexion, and extension were essentially within normal

limits with the exception of relator's complaints of diminished sensation in her right index

and long fingertips. He noted that relator's motor function appeared to be within normal

limits with good strength measure. Further, with the exception of the fact that refator

kept her head tilted to the right (which she indicated was more comfortable), relator

could readily straighten to a normal posture, could touch her toes and could walk across

the floor on her toes and on her heels without difficulty. Dr. Cangemi noted the

following diagnoses: "Acute cervical strain, resolved," "[m]ild degenerative disc disease

cervical spine with no evidence of radiculopathy or myelopathy noted," "[o]pioid

tolerance," "[sjomatoform pain disorder," and "[o]ccipital neuralgia, moderate in

severity." Thereafter, Dr. Cangemi stated:

Mrs. Marchiano has had chronic neck pain as well as lowback pain ever since her injury in 1997. Despite this, sheremained gainfully employed up until 2004 at which time shehad a right occipital nerve block resulting in a persistentoccipital neuralgia which has precluded her returning towork. I would certainly concur that this patient has developeda significant tolerance to opioid analgesics because of thesimple fact that she's taking rather large doses of Kadianwithout significant pain relief. I would further agree with Dr.Mitchell Simons that she shows evidence of a significantpsycho-social distress related to her pain and disability. Dr.Christopher Sweeney has indicated on April 11, 2005 that heconsiders her to be disabled for at least the next 12 monthsas a result of the followi i i conditions: 1) Cervical discdisease. 2) Occipital neu,agia. 3) Opioid tolerance. 4)

No. 07AP-486 10

Myofascial pain, Considering the fact that these are theconditions for which I was asked to make a determination, Iwould concur that she is disabled on this basis. I realize thatthe main symptom is that of pain which is very difficult tomeasure. I would not state that she is disabled on the basisof cervical disc disease but, since I am forced to consider theother conditions listed above, I think therefore that the painhas to be considered a disabling feature.

{125} 9. After a review of the medical records, the members of the medical

advisory commitfee ("MAC") were concerned that there was a lack of objective findings

in Dr. Cangemi's report. Further, because both Drs. Tuttle and Cangemi indicated that

there was a psychological component to relator's difficulties, certain members of MAC

requested a psychiatric evaluation.

{126} 10. Relator was referred to James R. Hawkins, M.D., for a psychiatric

evaluation. In his review of the medical records, Dr. Hawkins noted that relator's August

2004 EMG was normal and that James Anthony, M.D., indicated that there was no

significant finding of a neurological disorder to explain relator's pain. Dr. Hawkins also

noted the July 2001 MRI as being consistent with small central disc protrusion and/or

spur at C6-7 with minimal cord impingement. Dr. Hawkins also noted that, in spite of

the fact that doctors had prescribed relator escalating doses of narcotic medications,

relator was not provided with relief and she personally indicated that she wanted to

discontinue the medicines as she believed they contributed to her feeling "stupid." After

reviewing the records and interviewing relator, Dr. Hawkins determined that the various

medications which she was taking had left her cognitively impaired and contributed to

her depressed mood. With regards to whether relator had a somatization disorder, Dr.

Hawkins concluded that she did not meet the criteria for the following reasons:

Mrs. Marchiano does noi12 neet medical criteria for aSomatization Disorder. This disorder requires 4 pain symp-

No. 07AP-486 11

toms, 2 gastrointestinal symptoms, one sexual sympton, andone pseudoneurological symptom, all of which cannot befully explained by a known general medical condition. In thiscase, although her pain symptoms are somewhat bizarre,the remainders of her physical symptoms are easilyexplained by narcotic medication and irritable bowel syn-drome.

(127} Ultimately, Dr. Hawkins concluded that the medical records he reviewed

did not provide objective findings to substantiate her chronic pain complaints, the

symptoms attributed to occipital neuralgia seemed extreme, relator was taking

significant amounts of narcotic pain medication as well as other medications which were

causing cognitive slowing and depressed mood, and that detoxification from these

substances was necessary to give a more accurate picture of relator's true disabilities.

Ultimately, Dr. Hawkins concluded that relator was not incapacitated from performing

her school duties for a continued period of at least 12 months and further indicated that

he would be happy to re-examine relator once she was detoxified from the addictive

substances.

1128} 11. Upon review, the doctors of MAC concluded that relator did not qualify

for disability retirement based upon the report of Dr. Hawkins.

(129} 12. Relator appealed and submitted additional medical evidence. Relator

submitted the April 2006 psychiatric evaluation of Fred R. Moss, M.D., who opined that

relator suffered from dysthymia and that she required ongoing psychotherapy. Relator

also submitted the August 2006 report of Dennis J. Schneider, Ed.D., who explained

that relator's dysthymic disorder was work prohibitive and rendered her temporarily and

totally disabled. Relator also submitted the June 2006 report of Usman A. Siddiqui,

M.D., who recommended further neurological testing.

13

No. 07AP-486 12

(130} 13. A hearing was held before MAC. Relator appeared and testified

about her condition and further indicated that she had been greatly distressed during

her examination by Dr. Hawkins. According to relator, Dr. Hawkins was "very

aggressive" and "he took a look at the medications that I was on and he actually used

the -word 'junkie'." She indicated that Dr. Hawkins was very nasty, she was on the verge

of tears, and she ultimately just agreed with everything he said in order to end the

examination.

{131} 14. Following the hearing, the members of MAC denied relator's disability

retirement. Dr. Fallon suggested an independent medical evaluation to determine

relator's status.

{132} 15. Thereafter, relator filed the instant mandamus action in this court.

Conclusions of Law:

{133} The Supreme Court of Ohio has set forth three requirements which must

be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal

right to the relief prayed for; (2) that respondent is under a clear legal duty to perform

the act requested; and (3) that relator has no plain and adequate remedy in the ordinary

course of the law. State ex rel. Berger v. McMonagfe (1983), 6 Ohio St.3d 28.

(134} Relator raises two arguments in this mandamus action. First, relator

contends that SERS should be required to explain their decisions. Second, relator

contends that SERS abused its discretion in denying her disability retirement on the

following grounds: (1) because of an irrebuttable presumption in favor of board doctors,

SERS does not consider other evidence; (2) Dr. Hawkins' report should be stricken from

the record because Dr. Hawkins is not disinterested, is not competent, and his report is14

equivocal and/or ambiguous; and (3) all the medical evidence clearly establishes that

No. 07AP-486 13

relator is entitled to disability retirement. For the reasons that follow, this magistrate

disagrees.

{q[35} "The Public School Employees Retirement System was established for the

purpose of providing retirement allowances and other benefits to public school

employees other than teachers." State ex ret. McMaster v. School Emp. Retirement

Sys. (1994), 69 Ohio St.3d 130, 133, citing 1 Baker& Carey, Ohio School Law (1993)

399, Section 8.25. Pursuant to R.C. 3309.39(C), in order to be entitled to disability

retirement benefits, a SERS member must be mentally or physically incapacitated for

the performance of the member's last assigned primary duty by a disabling condition

that is either permanent or presumed to be permanent for at least the 12 months

following the filing of the application for benefits. Because there is no provision for

appealing a final SERS decision, mandamus is available to correct any abuse of

discretion by SERS. McMaster, at 333. An abuse of discretion occurs when a decision

is unreasonable, arbitrary, or unconscionable. State ex rel. Van Dyke v. Pub. Emp.

Retirement Bd,, 99 Ohio St.3d 430, 2003-Ohio-4123.

[136} Relator first argues that SERS either has or should have a duty to

specifically state the evidence upon which it relied and explain the reasons for its

decision to deny her application for disability benefits. This magistrate disagrees. On

several occasions, both this court and the Supreme Court of Ohio have held otherwise.

In mandamus proceedings, the creation of the legal duty that a relator seeks to enforce

is the distinct function of the legislative branch of government, and courts are not

authorized to create the legal duty enforceable in mandamus. See State ex re(. Woods

v. Oak Hill Community Med. Ctr. (2001), 91 Ohio St.3d 459, and State ex re.) Lecklider15

v. School Emp. Retirement Sys., 104 unio St.3d 271, 2004-Ohio-6586. There is

No. 07AP-486 14

nothing in either the statute or the regulations which suggests that the SERS retirement

board or the members of MAC are required to issue a decision stating the basis for its

denial. !d. As such, relator's first argument fails.

{137} Relator's second argument raises several points. First, relator argues that

there is an irrebuttable defacto presumption in favor of board doctors. Relator claims

that it is an abuse of discretion for SERS to rely exclusively on one of the doctors to

whom SERS referred relator without providing any analysi's or explanation. This

magistrate disagrees.

{138} Pursuant to R.C. 3309.39(C), SERS is authorized to direct claimants to be

examined by one or more competent disinterested physicians. In the present case, one

of the doctors to whom SERS referred relator was Dr. Hawkins. R.C. 3309.39 gives

SERS the sole discretion to determine whether a member is entitled to SERS'disability

coverage. Ohio Adm.Code 3309-1-40(F), promulgated pursuant to R.C. Chapter 3309.,

requires that all the medical evidence and other information submitted is to be reviewed

before a disability determination is made. SERS is not required to give all the medical

evidence in the record equal weight. Instead, SERS reviews the evidence and

determines the issue. Because SERS is not required to provide an explanation, so long

as there is some evidence in the record to support the determination of SERS, then this

court cannot find that SERS abused its discretion.

{139} Pursuant to the procedures outlined in Ohio Adm.Code 3309-1-41(A), it is

apparent that the attending physicians and independent physicians' reports were

reviewed by the members of MAC. Further, after originally reviewing all the medical

evidence, the members of MAC determined that additional medical evidence was16

necessary. This, in and of itself, indicates that MAC physicians did review all the

No. 07AP-486 15

evidence in the record including the reports and other information submitted by relator.

There is no requirement that the opinions of treating physicians should be accorded

greater weight than those of the independent medical examiners. See State ex rel.

Schwaben v. School Emp. Retirement Sys. (Aug. 5, 1996), 76 Ohio St.3d 280, and

State ex rel. Copeland v. School Emp. Retirement Sys. (1999), Franklin App. No. 98AP-

1173.

{140} Relator also contends that the report of Dr. Hawkins should be stricken

from the record because Dr. Hawkins is not a disinterested, independent examiner, he

was not competent to provide the opinion he provided; and his report is equivocal

and/or ambiguous.

{1411 Relator argues that Dr. Hawkins was not a disinterested examiner. First,

relator argues that Dr. Hawkins is a professional witness and, as such, he is not a

disinterested independent examiner. Relator's argument is not relevant and does not

demonstrate bias. Relator cites federal cases indicating that where benefit plans

repeatedly retain certain physicians, those physicians may have an incentive to

determine that a member is not disabled in order to preserve their financial

arrangements. While relator's argument could potentially have some validity, the

magistrate is compelled to reject her argument. In this regard, relator contends that it

was her intention to pursue discovery in this case to demonstrate that Dr. Hawkins was

indeed a biased physician. However, upon review of the record, relator and her counsel

failed to make this argument at the hearing held on her disability application. While

relator and counsel did argue that Dr. Hawkins' manner of addressing relator was

indicative of his obvious bias, relator never contended that SERS referred too many

applicants to Dr. Hawkins for an examina«^n and that Dr. Hawkins had good reason to

No. 07AP-486 16

find against granting disability. Because relator could have made this argument in the

proceedings below and SERS could have made the determination to refer her to

another physician as suggested by Dr. Fallon, relator should not be permitted to make

this argument here. Further, to the extent that relator argues that Dr, Hawkins was

hostile, she made that argument before SERS and that argument was rejected.

Further, upon review of Dr. Hawkins' report, there is no evidence of hostility or other

bias even remotely evident from a reading of that report. Instead, the report appears

very professional. Dr. Hawkins ultimately concludes that he cannot say that relator is

incapacitated from performing her job for at least the next 12 months without seeing her

again after she has been weaned off the narcotic medications which she has been

taking for years. Dr. Hawkins opined that relator's cognitive deficiencies and depressed

mood were exacerbated if not actually caused by the medications. Relator contends

that Dr. Hawkins was not competent to make this decision, but this magistrate

disagrees. It is undisputed that relator was taking high doses of more than one narcotic

pain medication. As a physician, Dr. Hawkins would be knowledgeable concerning the

effects those medications would have on a patient. Further, even relator herself

indicated that the medications made her feel "stupid," she did not think they were

helping her any longer, and she did not desire to take them any longer. Further, Dr.

Hawkins' report was neither equivocal nor ambiguous. Relator points out that Dr.

Hawkins indicated that she was not able to return to her former job at the time of the

evaluation, and yet he indicated that she very well may be able to return to work before

the expiration of 12 months. As an examining physician, Dr. Hawkins was required to

give an opinion as to whether or not he believed relator was incapacitated from the18

performance of her job for at least.12 months. In this case, although he indicated she

No. 07AP-486 17

was currently incapacitated, Dr. Hawkins was not able to opine that her disability would

extend for 12 months or longer. As such, this argument fails as well.

{142} Lastly, relator contends that all the evidence in the record supports a

finding that she is entitled to disability retirement. As indicated above, there is some

evidence in the record upon which SERS could rely in denying her disability retirement

application. SERS was not required to give greater weight to relator's medical evidence

and, because there is some evidence in the record to support the determination, relator

has not dernonstrated that SERS abused its discretion.

{143} Based on the foregoing, it is this magistrate's conclusion that relator has

not demonstrated that SERS abused its discretion in denying her application for

disability retirement benefits and relator's request for a writ of mandamus should be

denied.

s/s Stephanie Bisca BrooksSTEPHANIE BISCA BROOKSMAGISTRATE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any factual findingor legal conclusion, whether or not specifically designatedas a finding of fact or conclusion of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby Civ.R. 53(D)(3)(b).

19

IN THE COURT OF APPEALS OF OHIO



Relator,

V.

School Employees Retirement System,

Respondent.

a^ o

^ x r n^"=--

CDO ^^"m

C.-^ wC-7 'RS C? -3p :Z •cr„

No.07AP-486

(REGULAR CALENDAR)

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

June 10, 2008, the decision of the magistrate is approved and adopted by this court,

and it is the judgment and order of this court that the requested writ of mandamus is

denied. Costs assessed against relator.

Within three (3) days from the filing hereof, the clerk of this court is hereby

ordered to serve upon all parties not in default for failure to appear notice of this

judgment and its date of entry upon the journal.

Judge William A. Kiatt

Judge Judith L. French

20

LN. THE COURT OF APPEALS OF(- N I i I J

TENTH APPELLATE DISTRICTF^!f=^<<rtr -;,.-,•:

State of Ohio ex rel. Barbara Marchiano, : FRANn; r,{ ,.,a

Relator, 2907 3tP ^y r̀'•^ ^. S5C1 rt

v. No. 07AP-^86t ©F CO(/nFS

Schoot Employees Retirement System, : (REGULAR CALENDAR)

Respondent.

MAGlSTRATE'S ORDER

Because the only evidence which this court can consider in this

mandamus action is the evidence already presented to the School Employees

Retirement System, relator's August 31, 2007 motion for a conference to discuss further

discovery relator wishes to pursue is denied. ON ÔM^^^ ^TER 12

A new briefing schedule for the filing of evidence and briefs is necessary.

Respondent filed the certified record on September 4, 2007. In the event relator is in

the possession of additional evidence which had been submitted in the proceedings

below, but which was omitted from respondent's certified evidence, relator shall file

TWO COPIES of the stipulated or certified evidence (see Loc.R. 12) on or before

September 5, 2007; relator's brief shall be filed on or before September 20, 2007;

respondents' briefs shall be filed on or before October 8, 2007; and any reply brief shall

be filed on or before October 16, 2007. No extensions will be granted.

The evidence shall contain a table of contents, and each page of

evidence shall be numbered. Any agreement to stipulate shall reflect approval by

all parties. This case will be submitted on briefs to the magistrate, the date/time to be

set by the deputy court administrator.

Page I

LEXSEE 1993 OHIO APP. LEXIS 5850

In the Matter of: Deaconess Hospital of Cincinnati, Ohio, Appellant.

No. 93AP-231, (REGULAR CALENDAR)

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLINCOUNTY

1993 Ohio App. LEXIS 5850

December 9, 1993, Rendered

PRIOR HISTORY: [*I] APPEAL from the

Certificate of Need Review Board.

DISPOSITION: Order affirmed.

COUNSEL: Lee Fisher, Attorney General, and AndrewAlatis, for Ohio Department of Health.

Squire, Sanders & Demp"sey, David J. Young and RobertC. Maier, for appellant Deaconess Hospital of Cincinnati,Ohio.

JUDGES; DESHLER, YOUNG and MARTIN, JJ.,

concur.

OPINION BY: DESHLER

OPLÌION

OPINION

DESHLER, J.

This is an appeal by appellant, Deaconess Hospital of

Cincinnati, Ohio, from an order of the Certificate of NeedReview Board ("CONRB"), denying appellant'sapplication for a certificate of need ("CON").

On February 9, 1990, appellant submitted a CONapplication with appellee, Ohio Department of Health

("ODH"), in which appellant sought to add five

"geropsychiatric" beds to its existing twenty-bed unit.

The ODH consultant recommended denial of the CON.

By letter dated January 17, 1991, the director of ODHadopted the consultant's recommendation and denied

appellant's application.

On February 20, 1991, appellant filed a request foran adjudication hearing with the CONRB regardingODH's decision. The matter was referred to a CONRBhearing examiner who conducted a hearing in March andApril of 1992. The hearing examiner subsequently [*2]filed a report, recommending that appellant's CONapplication be denied. By order dated January 21, 1993,the CONRB adopted the hearing examiner'srecommendation and denied appellant's requested CON.

On appeal, appellant asserts one assignment of error:

"THE CERTIFICATE OF NEEDREVIEW BOARD ERRED BYDENYTNG DEACONESS A CONBASED UPON fMPROPER RULEMAKING BY ADJUDICATION ANDTHE iNFORMAL POLICY OF THEDEPARTMENT OF HEALTH THATWAS NEVER ADOPTED AS A RULEBY THE PUBLIC HEALTH COUNCIL,IN CONTRAVENTION OF R.C.CHAPTER 119 AND R.C. CHAPTER3702."

The standard of review for this court in examining anappeal from the CONRB is set forth in R.C.3702.60(E)(3), which states:

"The court shall affirm the board's orderif it finds, upon consideration of the entirerecord and any additional evidenceadmitted under division (E)(2) of thissection, that the order is supported byreliable, probative, and substantial

22

1993 Ohio App. LEXIS 5850, *2

evidence and is in accordance with law. Inthe absence of such a finding, it shallreverse, vacate, or modify the order."

The thrust of appellant's argument on appeal is that thedenial of appellant's CON was based upon an inforntalpolicy of ODH which was [*3] not duly promulgated andadopted as an administrative rule. More specifically,appellant contends that, during the mid-1980's, ODH hada poflcy of granting CON's for "geropsychiatric" t beds,but that ODH subsequently changed its position andadopted a new policy regarding the need for such beds,thereafter denying applications involving distinctgeropsychiatric units. Appellant argues that by denyingappellant a CON for five beds in the present case, ODHwas acting in accordance with this informal policy (andtherefore in contravention of Ohio's AdministrativeProcedure Act, R.C. Chapter 119, by administering an

unpromulgated rule),

I The testimony before the hearing examinerindicated a lack of consensus as to the definitionof a"geropsychiatric" patient. Dr. JamesHawkins, a board certified psychiatrist employedby appellant, testified that he could not quote thedefinition of a geropsychiatric patient. SherMcClanahan, vice president of patient careservices for appellant, defined a geropsychiatricpatient as " * * * a patient who is over 60 years ofage that requires psychiatric intervention." (Tr.Vol. l, 96.) Dr. Joseph D. Massoud, a practicingpsychiatrist in the Cincinnati area, testified that hedid not use the term "geropsychiatric patient."Judith Mitchell, nursing manager of thepsychiatric unit at Good Samaritan Hospital,testified that "geropsych patients are patients over65 years of age with psychiatric problems. Theywould have a DSM3R diagnosis." (Tr. Vol. 3C,

5.)

Page 2

[*4] Before addressing the contention that ODH

employed an informal policy in this matter, we firstconsider the basis of the hearing examiner's report andrecommendation. The CONRB hearing examiner, inrecommending that appellant's CON application bedenied, made the following factual findings based uponthe hearing evidence:

"Geropsych patients can receive qualitypsychiatric treatment in general adultpsychiatric beds.

"The key to quality care for thegeropsych patient is the development of aspecific treatment plan to meet theindividual's specific needs whether thepatient is in a general adult unit or adistinct geropsych unit.

"The State licenses adult psychiatricbeds but does not license geropsych beds.

"University Hospital, Jewish Hospital,Christ Hospital and most recently, St.Francis/St. George, all of HamiltonCounty have, or are implementing, distinctgeropsych units.

"Medical/psychiatric experts have notformed a consensus of opinion as to theneed for segregating the geropsych patientfrom other adult psychiatric patients.

"The occupancy rates for adultpsychiatric beds in [*5] Hamilton Countywere as follows in 1990 and 1991:

1990 1991

"Deaconess 91.5% 80.1"/u

"Christ 77.3% 74.4%

"Bethesda 83.0"/0 70.4%

"Emerson 68.7% no report

23

1993 Ohio App. LEXIS 5850, *5Page 3

"Good Samaritan 65.6% 63.5'/u

"Jewish 93.6% 91.2"/u

"University 81.5% 82.1%

"There are adult psychiatric bedsavailable in Hamilton County to treat thegeropsych patient.

"Geropsych patients can receive qualitycare in existing Cincinnati adult

psychiatric beds."

In applying the above fmdings to the general reviewcriteria set forth under Ohio Adm.Code 3701-12-20, thehearing examiner concluded that:

"*** The population served does nothave a need for the additional service to beprovided; * * * adding five beds wouldhave to have some impact on otherproviders in the area who have beenexperiencing low occupancy rates; and * ** a better altemative to the project wouldbe to utilize the already available beds inthe area which might include havinggeneral adult psychiatric beds convert togeropsych beds to fill the need."

The hearing examiner also noted the followingconceming appellant's contention that ODH hademployed an informal policy [*6] regarding the reviewof CON applications pertaining to "geropsych" beds:

" * * * Appellants have argued thatODH may not use unpublished, informalpolicies and drafl bed need regulations inthe review of CON applications. TheHearing Examiner wishes to make clear tothe CON Review Board that past CONapplications for geropsych beds are notpresently before her nor the manner inwhich these applications were reviewed ordecided. What is before this HearingExaminer is Deaconess' application forfive geropsych beds to be part of itsexisting 20-bed geropsych unit. Thecriteria being utilized by this Hearing

Examiner to review this application are thegeneral review criteria contained in rule3701-12-20 of the Ohio AdministrativeCode which is a validly adopted andpublished state regulation. * * * "

In the present case, the record indicates that the hearingexaminer recottunended denial of appellant's CON basedupon the examiner's application of the general reviewcriteria of Ohio Adm.Code 3701-12-20 to the specificfacts of this case. The hearingexaminer;-in limiting-heranalysis to the facts of this particular case, specificallynoted that evidence conceming prior [*7] CONapplications was not before her. Thus, the record does notsupport appellant's contention that the order of theCONRB was based upon acquiescence by the CONRB toprior informal policy changes by ODH.

Further, we disagree with appellant's assertion thatthe evidence at the adjudication hearing clearly provedthe existence of an informal policy on the part of ODHregarding the denial of projects presented as distinctgeropsychiatric units. Appellant bases its argument on thecontention that ODH approved CON applications forthree geropsychiatric units in the mid-1980's, butsubsequently changed its policy and denied any furtherapplications for distinct geropsychiatric units. 2 Insupport of this contention, appellant cites the testimonyof Michael Marchetto, a medical consultant with ODH.Assuming that an unpromulgated rule could be foundbased upon three prior ODH decisions, the testimony atissue does not support such a detennination. The recordindicates that Marchetto, when asked if ODH hadadopted a policy regarding whether there was a need fordistinctunits for geropsychiatric patients, testified that" ** * the lack of consensus and the * * * medical literature,and the [*8] lack of consensus among practitioners in themedical community has lead the Department more thanlikely to not adopt a specific policy towardsgeropsychiatric as to the adult psychiatry." (Tr. Vol. 1,112.)

2 As noted by the hearing examiner in her report,there is no distinct licensing or CON category for

24


"geropsychiatric" beds contained in either thestatutes or mles goveming the CON application atissue.

Moreover, even assuming that ODH had formulatedan informal policy and then changed its positionconceming the need for distinct geropsychiatric units, itdoes not necessarily follow that, in light of changingcircumstances, ODII would be bound by earlierprecedents which would impair the agency's decisionmaking role regarding health care planning. See, e.g.,N.L.R.B. v. Weingarten (1975), 420 U.S. 251, 95 S. Ct.

959, 967-968. See, also, Securities and Exchange Comm.

Y. Chenery Corp. (1947), 332 U.S. 194, 67 S. Ct. 1575,

1580 (agency must retain power to deal with problems ona case-by-case [*9] basis concerning evolution ofstatutory standards). Rather, given the testimony in thiscase indicating uncertainty in the medical community inthe mid-1980's regarding whether older psychiatricpatients should be treated separately from younger adultpsychiatric patients, we decline to conclude, based uponthe record before this court, that ODH was foreclosed byits prior determinations from continuing to analyze theneed for distinct geropsychiatric beds. Furthermore, it iswell-established that "principles of equitable estoppelgenerally may not be applied against the state or itsagencies when the act or omission relied on involves theexercise of a govemmental function." Sun Refining &Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306,

Page 4

307, 511 NE.2d 112. We find the doctrine of estoppelinapplicable to this matter.

Irrespective of appellant's argument conceming aninformal policy by ODH, the record in this case indicates,as previously noted, that the CONRB hearing examinerbased her recommendation upon an application of thespecific facts of this case to the pertinent review criteria.Upon review of the record, we find that the order of theCONRB is based upon sufficient [*10] reliable,probative and substantial evidence and is in accordancewith law. Alternatively, we find no merit to appellant'scontention that ODH employed a policy whichconstituted an unpromulgated rule.

Accordingly, appellant's assignment of error is notwell-taken and is overruled.

Based upon the foregoing, appellant's singleassignment of error is overruled and the order of theCONRB is hereby affirmed.

Order affirmed.

YOUNG and MARTIN, JJ., concur.

MARTIN, J., of the Carroll County Court ofCommon Pleas, sitting by assignment in the TenthAppellate District.

25

Page I

LEXSEE 2007 U.S. DIST. LEXIS 488

ROBIN PLUNIMER, Plaintiff, -vs- THE HARTFORD LIFE INSURANCE CO.,Defendant.

Case No. C-3-06-094

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFOHIO, WESTERN DIVISION

2007 U.S. Dist. LEXIS 488

January 5, 2007, DecidedJanuary 5; 2007, Filed

SUBSEQUENT HISTORY: Motion granted by, Costsand fees proceeding at Plummer v. Hartford Life Ins. Co..2007 U.S. Dist. LEXIS 13139 (S.D. Ohio, Mar. 15, 2007)

COUNSEL: ["I] For Robin Plummer, Plaintiff: AlfredWilliam Schneble, I11, William Oak Cass, Jr., LEADATTORNEYS, Dayton, OH.

For Hartford Life Insurance Company, Defendant:Nicholas William Ferrigno, Jr, Sara Rebecca Elrod,LEAD ATTORNEYS, Greenbaum Doll & MeDonaldPLLC, Covington, KY.

JUDGES: Thomas M. Rose, UNITED STATES

DISTRICT JUDGE.

OPINION BY: Thomas M. Rose

Insurance Policy No. SRE83099256 (the "Policy"). ThePolicy was isstted to Kmart by Continental CasualtyCompany ("CNA"). CNA administered the Policy untillate 2003 when Defendant Hartford Life and AccidentInsurance Company ("Hartfotd") assumed responsibilityfor administration of the Policy.

In February of 1998, Plummer began to experience[*2] pain in her lower back. She ceased working atKmart on July 20, 1998 and, after receiving disabilitybenefits from Kmart for a period of time, applied to CNAfor disability benefits under the Policy. This applicationis not included in the Administrative Record ("AR") sothe date she applied cannot be ascertained by the Court.However, on June 24, 1999, CNA acknowledged receiptof Plutnmer's claim. The screening referral sheetindicates that Plummer's claim was received on June I S,1999.

OPINION

ENTRY AND ORDER REINSTATING LONGTERM DISABILITY BENEFITS TO ROBINPLUMMER; GRANTING PLUMMER'S MOTIONFOR JUDGMENT ON THE ADMINISTRATIVERECORD (Doc. # 17) AND OVERRULINGHARTFORD'S iIOTION FOR JUDGiMENT ONTHE ADMINISTRATIVE RECORD (Doc. N 16)

This cattse arises from the disability of PlaintiffRobin Plummer ("Plummer"). Before becoming disabled,Plummer was employed by Kmart as a pharmacist. Whileemployed at Kmart, Plummer was provided long termdisability benefits under Group Long Term Disability

On July 21, 1999, CNA informed Plummer that herdisability claim was approved with benefits to begin onJanuary 20, 1999. In 2004, Hartford reviewed Plummer'srecord and ultimately decided to terminate her long termdisability benefits as of February I, 2005. Plummerunsuccessfully appealed this decision and ultimately filedthe Complaint that is now before the court.

Count I of Plummer's Complaint is an ERISA claimfor long term disability benefits. Count II is for attorneys'fees and costs.

The Sixth Circuit has directed that claims regardingthe denial of ERISA benefits are resolved using motionsfor judgment on the administrative record. Wilkins v.

26

2007 U.S. Dist. LEXIS 488, *2

Baptist Healthcare System. Inc.. 150 F.3d 609, 619 (6th

Cir. 098). [*3] Now before the Court are Plummer'sand Hartford's motions for judgment on theadministrative record. (Docs. W 16 and 17.) The AR I hasbeen filed and both Parties have filed responses. (Docs. g

19 and 20.)

I The AR filed in this case does not includepages 266 throttgh 316, and one page betweenPLUM 670 and 671 is not Bates stamped.

Hartford's Memorandum In Support of Jttdgment Onthe Administrative Record exceeds twenty pages inviolation of Court rules and Plummer's Response ToDefendant's Motion for Jttdgment On the AdministrativeRecord was not filed by the date set by the Court.However, in the interest of providing justice to theParties, both will be considered. Therefore, the motionsfor judgment on the administrative record are now ripe

for decision.

A facttial background will first be set forth. Thefactual background will be followed by the standard ofreview for claims to recover benefits due under terms of aplan subject to ERISA and an analysis of the crossmotions forjudgment on the administrative [*4] record,

Lt:ACTUALBACKGROUND

Plunimer was etnployed at Kmart from September 9,1988 to July 19, 1998. (AR (hereinafter "PLUM") 968.)

During the relevant time, Plutnmer was working in theposition of pharntacist/manager. (PLUM 550.)

As a pharmacist/manager at Kmart, Plummer wasresponsible for overseeing the operation of the pharmacy

department including customer setvice, profitability,

investtnent control and coinpliance with federal, state and

local laws, regulations and Company policies andprocedures. (PLUM 892.) She was also responsible forsupervising the work of the pharmacy technicians andcustomer service team members and for receiving andfillingprescriptioris. (Id.)

Kmart's job description for Plummer required,among other things, repetitive standing, bending,stooping, kneeling, lifting, stretching and reaching. (Id.)The job description used by Hartford for evaluationpurposes classified the pharmacist position as "light" andidentified the following as time spent on physicaldemands: sitting - 5%; standing - 70%; walking - 25"/0,

bending - 10%; and reaching - 10%. (PLUN1823.)

A. Relevant Policy Provisions

Page 2

The Policy provides an elimination period of [*5]six months provided the employee is considered totallydisabled by the Kmart Disability Claims Administratorand has received salary continuation payments from theKmart Disability Pay Policy. (PLUM 322.) Thosecovered are not eligible to receive benefits from thePolicy during the elimination period. (PLUM 328.)

The Policy defines "disability" or "total disability" aswhen the insured employee, because of injury orsickness, is:

(I) continuously unable to perform theSubstantial and Material duties of theInsured Employee's Regttlar Occupatron;

(2) tmder the regular care of a legallyqttali6ed Doctor other than the InsuredEmployee; and

(3) not Gainfully Employed in anyoccupation for which the InsuredEmployee is or becomes qualified byeducation, training or experience.

(PLUM 337.) The policy also provides a differentdefinition of "disability" or "totally disabled" that isapplicable after the Monthly Benefit has been payable forthe Insured Employee Occupation Period shown in theSummary of Benefits. (td.) However, in the case of thePolicy issued to cover Kmart's employees, the Summaryof Benefits includes a "Maximum Period Payable" btttdoes [*6] not include an Insured Employee OccupationPeriod. (PLUM 322.)

The Policy also provides for the type of informationa claimant must submit to be eligible to receive long termdisability benefits. Relevant to this matter, the Policyrequires the following proof of disability:

4. Proof that You are receivingAppropriate and Regu(ar Care for Yourcondition from a Doctor, who is someoneother than You or a member of Yourimmediate farnily, whose specialty orexpertise is the most appropriate for Yourdisabling condition(s) according to

27

2007 U.S. Dist. LEXIS 488, *6

Generally Accepted Medical Practice.

5. Objective medical findings whichsupport Your Disability, Objective medical5ndings include but are not limited totests, procedures, or clinical examinationsstandardly accepted in the practice ofmedicine, for Your disabling condition(s).

6. The extent of Your Disability,including restrictions and limitationswhich are preventing You from performingYour Regular Occttpatian.

(PLUM 333.) Appropriate and regular care is defined inthe Policy as "regularly visiting a Doctor as frequently asmedically required to meet Your basic health [*7]needs." (PLUM 337.) Further, "[t]he effect of the careshould be of demonstrable medica[ value for Yourdisabling condition(s) to effectively attain and/ormaintain Maximum tLledical improvement."(Id.)

In addition to describing the type of information thatmust be provided for initial coverage, the Policy indicatesthat the insured may be asked to submit proof ofcontinuing disability and proof of continuing to receive"Appropriate attd Regular care of a Doctor." (PLUM

333.) This proof of continiting disability may berequested "only as often as 6Ve [the insurer] feelreasotiably necessaty." (Id.)

Finally, the version of the Policy that is presumablyprovided to the insured indicates that the insurer has theright to have a doctor examine the insttred "as often asreasonably necessary while the claim continues" and that"failure to comply with this examination will suspend ortenninate benefits" tinless the insurer agrees that theinsttrcd has "a valid and acceptable reason for notcomplying." (PLUM 334.) No mention is made of anindependent medical examination ("IME"). However,another version of the Policy that is part of the AR goesmuch further. This version indicates [*8] that disability

benefits will not be paid for any period for which theinsured refuses to have an IiVIE when required by the

insurer, for any period for which the 1ME is not received

by the insurer and for any period for which the requiredIME does not substantiate medical evidence of totaldisability. (PLUM 352.)

B. Procedural History

Page 3

Plummer began to experience pain in her lower backin February of 1998. (PLUM 957.) She related thebeginning of her back pain to working twelve hours perday at Kmart. (PLUM 899.) Plummer left theemployment of Kmart on July 20, 1998. (PLUM 968.)

Plummer received full disability pay from Kmartfrom July 20, 1998 until January 19, 1999. (Id.) Prior toand during this time she was evaluated and treated by Dr.Seymour. (Id.) Plummer had been referred to Dr.Seymour by Dr. Fronista, her general practitioner at thetime. (PLUM 920.)

On July 7, 1998, Dr. Seymour initially concludedthat Plummer had musculoskeletal low back pain withdeconditioning syndrome. (PLUM 921.) He beganoutpatient therapy for truncal strengthening andstabilization. (Id.) Dr. Seymour saw Plttmmer again onJuly 22, 1998, and sent her for an MRI of the lumbosacralspine. [*9] (PLUM 922.) On July 23, 1998, Dr.Seymottr concluded from the MRI performed on July 22,1998, that Plummer had a mild central bulge of theintervertebral disc at the L4-5 level. (PLUM 259.)

At Kmart's request, Plummer was seen by Dr.Brown, M.D., on August 31, 1998, for an IME. (PLUM926) Dr. Brown reviewed the MRI (PLUM 923) andagreed with the finding of a mild central bulge of the discat the L4-5 level causing minitnal impingement on theventral aspect of thecal sac. (Id.) Dr. Brownrecommended an EMG of the right lower extremity to tryto better delineate the source of Plummer's pain andconcluded that Plutnmer was disabled from work.(PLUM 928.)

On September 4, 1998, Plttmmer again saw Dr.Seymour. (PLUM 928.) Dr. Seymour concluded thatPlummer had not responded well to the cltiropractic carethat she had been receiving. (PLUM 929.) Dr. Seymourrecommended a trial of epidtiral steroids and, atterdiscussing Ptummer's case with Kmart's insurer,concluded that an EMG was needed. (Id.) The EMG,performed on September 10, 1998, indicated acuteposterior rami irritation at the L5-S I level. (PLUM 931.)

On Septeinber 28, 1998, Plttmmer again saw Dr.Seymour. Dr. Seymour concluded that Plummer [*10]had a probable disk derangement at L4-5. (PLUM 932.)He planned the «se of a warm "N" back brace,resumption of [umbar stabilization exercises and a thirdepidural steroid injection followed by a re-evaluation.

28

2007 U.S. Dist, LEXIS 488, *10

(PLUM 932.)

After a visitation on October 15, 1998, Dr. Seymourconcluded that Plummer had a degenerative disc at L4-5and sotne mild L5-S I nerve root irritation. (PLUM 933.)

He referred Plummer to Dr. Amongero, an orthopedicspine surgeon. (Id.) Dr. Seymour also concluded thatPlummer could not return to work at least throughNovember 15, t998. (PLUM 933.)

Plummer was then referred by Kmart to Dr. Gilliotte,

NI.D., for a second [ME. (PLUM 935.) Dr. Gilliotte sawPlummer on October 30, 1998. (Id.) He agreed with thefindings of the previous MR( and EMG. (PLUM 937.)

Dr. Gilliotte noted that Dr. Amongero had recommendeda discogram and that Pltrmmer was concemed about thistest because it carried significant risk. (PLUM 937.) Dr.Gilliotte concluded at the time that proceeding to anyform of back surgery would be premature. ( Id.) OnNovember 5, 1998, Dr. Gilliotte recommended thatPlummer not return to work. (PLUM 939.)

In October of 1998, Plummer was referred by Dr.Teeters, [*1I] her chiropractor, to Dr. Goodall, D.O., atthe Greene Memorial Hospital outpatient neurosurgicalclinic. (PLUM 938.) Dr. Goodall exatnined Plummer,reviewed the MRI and concluded that a myteogram CTwotdd be as effective as a discogram. (Id.) The lumbarmyleogmm and post-myleogram CT, performed onNovember 9, 1998, were negative. (PLUM 940.)

Dr. Goodall dismissed Plummer from theneurosurgical clinic on November 10, 1998 (PLUM 941)

and followed ttp with Plummer on November 12, 1998.(PLUM 943.) Dr. Goodall concluded that, althoughobvious frank nerve root compromise was not identified,Plummer had radicular pain. (Id.) Since Dr. Goodall hadnot found the cause of Phtmmer's radiculopathy, hesttggested that she consider a second opinion at a inajorneurosurgical center. (Id.) He then referred her to theMayo Clinic. (PLUM 944.)

Plummer was seen at the Mayo Clinic on November23-25, 1998. (PLUM 952.) At the Mayo Clinic, Plummerunderwent a series of examinations and tests. Dr.Dekutoski, of the Mayo Clinic, concluded that "there isno clear role for surgical intervention." (PLUM 949.) Herecommended further chronic pain managementevaluation and follow-up evaluation by her hometowntreating [*12] physicians. (PLUM 949.) One of thedoctors in the psychology department at Mayo found that

Page 4

Plummer exhibited depressive symptoms of frustration,irritability, some anbedonia, and hopelessness. (PLUM945.) Dr. Hunt of the Mayo Clinic reported finaldiagnoses of back pain with radiation to the rightposterior leg and previous hysterectomy. (PLUM 952.)

On December 10, 1998, Plummer reutrned to Dr.Gilliotte for a review and further guidance as to the nextstep. (PLUM 905-06.) Dr. Gilliotte reported thatPlummer showed symptoms of depression. (Id.) Heeonclttded that Plummer had back and right lowerextremity pain which thus far had alluded to anydefinitive diagnosis. (Id.) Dr. Gilliotte then ordered a CTscan of the pelvis and a bone scan. (Id.) He also declinedto pursue physical therapy at the time. (Id.)

Plummer saw Dr. Gilliotte again on January 12,1999. (PLUM 908.) Dr. Gilliotte noted that Plummer was"about the same." (Id.) He recommended physicaltherapy and referred her to Dr. Demirjian for a painmanagenient consultation. (Id.)

The next medical contact included in the AR is anIME performed by Dr. King, M.D., at KmarCs request.(PLUM 900-01.) Dr. King reviewed Plummer's prior[*I3] examinations and treatments including those byDr. Teeters, Dr. Gilliotte, Dr. Seymour and the MayoClinic. (Id.) Dr. King noted that Plttmmer had hadepidurals and facet blocks with minimai relief. (Id.) Healso noted that Plummers CT discogram was positive attwo levels: L4-5 and L5-SI and that Plttmmer would be"seen and followed" by Dr. Ainongero, a spine surgeon,to surgically decompress these two levels. (Id.) Dr. Kingconcluded that Plummer was not able to function in thecapacity of a "registered nurse" (???) and was unable toreturn to work. (id.)

On April 6, 1999, Dr. Amongero perfonned a ltunbardiskogram. (PLUM 258.) He found a normal contour andno symptoms at the L3-4 disc. (Id.) He also foundposterior extension of contrast material in the annulus atL5-S I and immediate severe pain. (Id)

On June 19, 1998, Plummer had back surgery.(PLUM 662.) She had an anterior and posterior surgicalfusion between L4 and the sacrum. (PLUM 252) Dr.Gilliotte reported to CNA that restrictions and limitationswere to be developed by Dr. Amongero, Plummer'ssurgeon, and that she may be ready for part time work byJanuary 1, 2000. (PLUM 887.) A lumbar CT scan onDecember 16, 1999, revealed [*14] the results of the

29

2007 U.S. Dist. LEXIS 488, * 14

surgery and that there may be centrally located clumpednerve roots or other soft tissue lesion in the spinal canal

at the L4 and L5 levels. (Id.)

Plummer then submitted a claim for disabilitybenefits to CNA that was received by them on June 23,1999. (PLUM 697.) This application is not included inthe AR.

On July 21, 1999, CNA informed Plummer that hercfaim had been approved and provided the monthlybenefit amount. (PLUM 892.) The period from July 20,1998, to January 20, 1999, was used to satisfy thePolicy's six-month elimination period. (Id.) Following theelimination period, Pltttnmer began receiving $ 2878.73monthly. (Id.)

The letter from CNA also informed Plummer thatbene6ts tinder the Policy are payable for 24 tnonths if sheis totally disabled from her own occttpation and thatbenefits will continue after 24 months only if she istotally disabled from any occttpation. (Id.) However, the"any occupation" language is not applicable to Plummerin accordance with the employee Plan Summary that is

included in the AR.

Plummer was next examined by Dr. Gilliotte on

January 4, 2000. (PLUM 862.) As a result, he continuedto certify Plumtner as disabled. (PLUM 871.) [*15] Dr.

Gilliotte stopped her physical therapy and suggested that

she see Dr. Amongero regarding the results of the lumbarCT scan. (Jd.) He reported to CNA that Plummer wasunable to stand, walk or sit for extended periods and herestimated date to return to work was now July I, 2000.

(PLUM 871.)

Phrmtner was again examined by Dr. Gilliotte onJune 16, 2000. (PLUM 842.) Dr. Gilliotte reported toCNA that Plttmmer was in a pain management programand could not currently perform the work of a pharmacistdue to pain, depression and anxiety. ((d.) He also reportedthat Plummer may begin work on March I, 2001. (Id.)

Plummer was again examined by Dr. Gilliotte onSeptember 5, 2000. (PLUNI 833.) Dr. Gilliotte reported toCNA that Plummer was in a pain management programand could not currently perform the work of a pharmacistdue to pain, depression and anxiety. (Id.) He reported thatPlummer continued to be disabled and may be able toreturn to work on March I, 2001. (Id.)

Page 5

On September 15, 2000, in response to a requestfrom CNA, Dr. Gilliotte reported that Plummer's functionhad not improved and that it would never improveenough for her to rentrn to full time work. (PLUM 809.)He reported [*161 that Plummer has chronic pain andwould not tolerate any work environment unless sheimproves substantially. (Id.)

CNA then contracted witlt ProWork to determinePlummer's current physicaUfunctional capabilities and todetetmine Plummer's ability to perform the pharmacistjob. (PLUM 830.) The Functional Capacity Evaluation("FCE") was scheduled to be conducted on November 15and 16, 2000. (PLUM 820.) The FCE was discontinuedon the first day following the musculoskeletal portion oftlte evaluation. (PLUM 812) Plummer was reported to beweeping throughout the evaluation and reported pain inher low back. (Id.)

On December 5, 2000, CNA again asked Dr.Gilliotte for his evaluation. He responded that there hadbeen no improvement in Plummer and futureimprovement was uncertain. (PLUM 805.) The currenttreatment noted by Dr. Gilliotte was continued painmanagement, physical therapy and medications. (Id.)

On February 22, 2001, Plttmmer filed for socialsecurity disability benefits. (PLUM 733.) The SocialSecurity Administration determined that she becamedisabled on July 20, 1998, and was entitled to socialsecurity disability benefits beginning February 2000. (Id.)Pursuant to the terms [* 17] of the Policy, Plummer wasrequired to reimburse CNA for social security paymentsreceived. (PLUM 739.)

Dr. Gilliotte again evaluated Plummer on September26, 2001. (PLUM 700.) He found that she could notperform fttll time work and that she continued to havesevere limits to her ability to sit, stand, walk andconcentrate. (Id.)

On October 24, 2002, CNA offered Plummer a lumpsttm of S 105,000 to settle her disability claim. (PLUM684.) This offer was based upon the present value ofPlummer's future benefits, (Id.) Plummer declined theoffer. (PLUM 674.)

In late 2003, Hartford assumed responsibility foradministration of the Polioy. Hartford's case notesindicate that Dr. Fronista had examined Plummer onNovember 13, 2003, and concluded that Plummer was

30

2007 U.S. Dist. LEXIS 488, * 17

totally disabled with no marked change expected in thefuture. (PLUM 671.) The case notes also includeHartford's conchtsion that "there is minimal supportiveevidence on the file from 2001 through the present" andthat a request will be made to Plummer to provide acurrent attending physician's statement and work andeducation history. (PLUNI 671.) The AR also includes aDisability Claim Form submitted by Plummer onNovember 13, 2003, in [*IS] which she reports that shecannot return to work until a new technique is developedto decrease pain and increase mobility. (PLUM 672.)

On June 1, 2004, Hartford asked Plummer for a

"periodic update" of its records. (PLUM 668.) Plummerresponded by completing a Claimant Questionnaire andan attending physicians's statement ("APS") dated July28, 2004. (PLUM 659-65.) She reported that she had"arachnoiditis, severe back pain, can only be up for shortperiods when sitting down feet ap and using ice, tens ttnitand medication" and that there had been no change in hercondition. (Id.) She also reported that she had beentreatedbyDr: FronistaandDc Snow 2 within-the-last 18nronths. (Id.) The APS diagnoses arachnoiditis and severeback pain and lists October 28, 2004, as the latesttreatment date. (PLUM 662.) The APS also indicates thatno treatment is available for this condition. (Id.)

2 Dr. Snow is a pain specialist who wasassociated with Dr. Fronista at the time.

Hartford then asked Dr. Fronista for copies [* 19] ofhis office records for Plummer for January 2003 to thepresent. (PLUM 652.) Dr. Fronista's records indicate thathe had seen her four times between Augttst 7, 2003, andJune 28, 2004, for various reasons. (PLUM 640-646.)

Each of Dr. Fronista's visit slreets inclttdes a diagnosis ofarachnoiditis. (Id.)

On July 28, 2004, Hartford referred Plummer's claimto its Special Investigation Unit ("SIU"). (PLUM 635.)The claim was referred as a "Proactive." (Id.)

The SIU contracted with Dempsey Investigations,Inc. for surveillance of Plummer to determine her currentactivities and physical limitations. (PLUM 614.) The

initial surveillance took place on Saturday August 14th,Sunday August 15th and Monday August 16th, 2004 (Id.)On August 14th and 15th, Plummer was not observedoutside of her residence. ( Id.) On August 16th Plummerwas observed away frottt her residence for approximatelythirty-nine minutes. (Id.) Plummer was observed

Page 6

traveling to a nearby cleaner's, a fast food restaurant anda department store. (Id.) During this time, she wasobserved driving, walking, entering and exiting hervehicle, squatting, bending at the waist, reaching, liftingand pushing a shopping cart. (Id.) The ['20} observernoted that Plummer displayed a full range of motion anddisplayed no physical signs that would support her statedlimitations. (Id.)

Hartford then reqaested further surveillance. Thesecond surveillance took place on Sunday September 12and Monday September 13, 2004. (PLUM 606.) OnSttnday, Plummer was not observed outside of herresidence. (Id.) On Monday, Plummer was observedaway from the residence for approximately two hours.(Id.) Plummer traveled to a private residence, to amedical center, back to the private residence and thenback to her residence. (Id.) During this time, she wasobserved and videotaped walking, bending at the waist,carrying a baby in a car seat using her lett and right hand,reaching and pulling, and driving approximately thirtymiles rottnd-trip-withoutany other-adults in the vehiele:-(Id.) According to the observer, Plummer walked in anormal manner and pace, displayed good range of motionand did not display any visible physical signs ofdiscomfort. (Id.)

Following the surveillance, Plummer's claim wasgiven to Hartford Investigator John Snow ("Snow").(PLUM 596.) Snow then interviewed Plurnmer onOctober 21, 2004. (PLUM 541.) Plummer declined [*21]Snow's offer to view the video tapes. She did, however,indicate that she had been watching her granddattghterduring the surveillance. (PLUM 66.) She indicated thatshe was watcl»ng her granddattghter because the child'smother had been beaten by the fatlter of the child. (Id.)The older woman seen at the private residence wassomeone who occasionally watched the child. (Id.)

As part of the interview, Plummer was asked todescribe her restrictions and limitations. (PLUM 596.)She indicated that she was prevented from returning towork because of severe back pain caused by arachnoiditisand that this causes an inability to sit or stand for anyextended period of time. (PLUM 53.) She also stated thatshe had the following restrictions and limitations: walkfor about twenty or twenty-frve minutes; stand for frfteento twenty minutes at most and lift and carry items thatweigh less than five pounds and push and pull somethinglike an empry shopping cart on wheels. (Id.) Plummer

31

2007 U.S. Dist. LEXIS 488, *21

also indicated that she cottld bend and twist at the waist,squat, kneel and reach to the front and side. (Id.) Finally,Plummer indicated that her condition has remained thesame for the past six months and that the [*22]information on the claimant questionnaire dated July 28,

2004, remained the same. (Id.)

On October 26, 2004, Hartford sent copies of thesttrveillance to Dr. Fronista. }(PLUM 594.) Dr. Fronistawas told that the surveillance supports a conclusion thatPlttmmer's fttnctionality exceeds his assessment. (Id.) Hewas asked to review and contment on the surveillance.(Id.) The AR does not include a response to this letter.

3 Although the letter indicates that it was thesurveillance of Mrs. Fronista, presumably, it wastlte surveiltance of Plummer.

Hartford also scheduled an IME for Plunimer withDr. Klein, who is a board certified occtipational medicinepltysician and family practitioner, and an independentmedicat examiner. (PLUM 591.) The IME was conductedon November 22, 2004. (Id.) Hartford asked Dr. Klein todetermine what preclttdes Plummer from working and todetermine her restrictions and liniitations. (PLUM 580.)

Dr. Klein issued his initial report on that same day.(PLUM 574-77.) He examined Plummer and the [*23]medical records that had been provided by Hartford. (Id.)Dr. Klein conclttded that Plummer presented herself ascredible and having ongoing pain. (Id.) He alsoconcluded that Plummer would presently be classified inthe sedentary job description meaning that she couldoccasionally lift up to 10 pounds but would reqttirefrequent change of body position from standing, sittingand lying. (Id.)

After receiving Dr. Klein's initial report, Hartfordsent Dr. Klein copies of the two surveillance videos, onetaken on August 16, 2004 for a total of five minutes andone taken on September 13, 2004 for a total ofapproximately twelve minutes. (PLUM 559-60.) OnDecember 17, 2004, Dr. Klein issued an addendumreport. (Id.) In the addendum report, Dr. Klein first wrotewhat he saw in the videos. (Id.) He then indicated thatPlummer is capable of performing at a higher level thanshe presented to him in her evaluation in November. (Id.)Specifically, Dr. Klein, based upon viewing the videos,believed that Plummer was capable of lifting up totwenty-five pounds on an occasional basis, was capableof frequently lifting up to ten pounds and was capable of

Page 7

standing and walking about as needed on a frequent [*241basis. (Id.) This, according to Dr. Klein, would putPlummer in the light duty classification and capable ofperforming the duties of a pharmacist. (ld.)

Hartford then sent both of Dr. Klein's IIvIE reports toDr. Fronista. (PLUM 567.) In tlte letter dated January 3,2005, Hartford concludes that Plummer has the capacityto work an 8-hour day at a light physical demand leveland would be able to return to her own occupation as apharmacist. (Id.) Hartford asked Dr. Fronista to agreewith this assessment or, if not, to provide a statementaddressing the "above" information and a copy of anyinformation supporting Plummer's functional capacity.(Id.)

On January 20, 2005, Dr. Fronista responded.(PLUM 565.) Dr. Fronista told Hartford that Plummerhas been his patient for about ten years and that he hadbeen treating her for the usual colds and a bout withpneumonia. Dr. Fronista fttrther indicated that Plummer'sback problems have been treated by others and that hedoes not involve himself with her back anatomy andphysiology except for prescribing analgesics for hersymptoms. (Id.) Dr. Fronista concluded that he did notfeel comfortable evaluating Plummer's state of disability.(Id.)

[*25] On February I, 2005, Hartford notifiedPlummer that they were terminating her long termdisability benefits effective February 1, 2005. 4(PLUM539-44.) Hartford indicated that it based its decision onpolicy language and the following information includedin Plummer's file:

1. Claimant Qtiestionnaire completedand signed by Plummer on June 28, 2004;

2. Work and Education History Formcompleted and signed by Pluinmer;

3. Authorization to Obtain andRelease Information completed and signedby Plummer;

4. Medical records from Dr. Fronista,01/01I02 through the present;

5. Attending Physician Statement ofDisability completed by Dr. Fronista06/28/04;

32

2007 U.S. Dist. LEXIS 488, *25

6. Independent Medical Examination

performed t 1/22/04;

7. Letter from Dr. Fronista dated01/20/05;

8. Surveillance report and videotapefrom surveillance conducted by DempseyInvestigations, Inc. on 8/16/04;

9. Interview with Plummer on10/21/04 conducted by Jack Snow of theHartford; and

10. Employability Analysis Reportcompleted 01103/05.

Hartford based its decision on the IME and videosurveillance and reviewed Plttmtner's file foremployability. '(Id.) Taking into accottnt physicallimitations, Hartford concluded [*26] that Plummer hasthe level of education, experience, geographical locationand work history to perfonn three occupations:Pharmacist, Pharmacetitical Sales Representative andQuality Assurance-Pharmaceuticals. (Id.)

4 This letter, again, includes a definition of "anyoccupation" disability that does not apply toPlummer.5 The Employability Analysis Report is not apart of the AR.

Plummer was then referred to Dr. Gilliotte by Dr.Fronista. (PLUM 532.) Dr. Gilliotte had previously seenPlttmmer between 1998 and 2002 for back and leg pain.(Id.) Dr. Gilliotte examined Plummer on February 23,2005. He reported that Plummer had complaints ofconstant low back pain and an intermittent heavyscnsation and pinching sensation in her lower rightextremity. ( Id.) He also reported that Plummer was seeinga counselor, Steve White, to help her with somepsychological adjustments issues. (Id.) Dr. Gilliotteconcluded that Plttmmer had stable chronic back and legpain and that she was not physically capable of work. Dr.[•271 Gilliotte also concluded that he thought Plummer'shistory and physical findings were legitimate. (PLUM533.)

Plttmmer then appealed Hartford's decision toterminate her long term disability benefits. (PLUM 531.)Along with an appeal letter dated May 6, 2005,

Page 8

Plummer's Counsel transmitted reports from Dr. Gilliotteand Steven White of Catholic Social Services both ofwhich indicate full disability. (Id.) Dr. Gilliotte hadexamined Plummer most recently on February 23, 2005,and White had been treating Plummer on a regular basissince April 11, 2003.

Hartford then asked for Dr. White's treatment recordswhich were provided on July 7, 2005. (PLUM 468.) Dr.White is a psychotherapist. (PLUM 534.) He concludedthat Plummer is unable to sustain employment due to hermood disorders and anxiety disorder. (Id.)

Hartford then hired consulting physicians to conductrecord reviews. (PLUM 464-65.) Dr. Robert L. Marks,M.D., conducted a medical record review (PLUM452-59) and David F. Zakin, Ph.D., conducted apsychological record review (PLUM 439-47).

Dr. Marks reviewed Plummer's medical records,spoke with Dr. Gilliotte and determined that the

"surveillance video reveals no evidence of significant[*28] functional impairment." (PLUM 459.) Dr. Gilliotte

indicated that even patients with chronic back pain canperform tasks in an emergency which they normallycould not perform. (PLUM 458.)

Dr. Marks concluded, in his report dated September22, 2005, that, based upon the available docutnentation,Plummet• is capable of performing the activities of a lightwork level (DOT classification). (PLUM 459.) The lightwork level entails occasional lifting of up to 20 poundsand some walking and standing. (Id.) He furtherconcluded that Plummer does not demonstrate anydifficulties reaching above shoulder level and the onlylimitation relates to the necessity of a stool beingavailable. (Id.)

Dr. Zakin reviewed Plummer's records and spokewith Mr. White. (PLUM 439.) Dr. Zakin also reviewedthe surveillance videos and noted that Plummer reportedthat she was watching her granddaughter during thesurveillance but did not do this on a regular basis.(PLUM 444.) Dr. Zakin also noted in his report, datedSeptember 22, 2005, that Mr. White reports observingconcentration problems but that Mr. White's treatmentnotes do not document any significant problems withconcentration or memory and that no cognitive ['291testing has been performed. (Id.)

33

2007 U.S. Dist. LEXIS 488, '29

perform any type of work at this time based upon MajorDepression. (PLUM 445.) Dr. Zakin determined that thesutveillance video indicates under-reporting ofsymptoms. (PLUM 446.) He concluded that there issupport for the diagnosis of an Axis I depressivecondition but that there is not objective medical evidencethat Plummer's depression is severe enough to cause

occupational impairment. (PLUM 443.)

Hartford then denied Plumnter's appeal. (PLUM403-08.) In a letter dated October 4, 2005, Hartforddenied the appeal and set forth its deterinination that

Plttmmer no longer satisfies the Policy definition ofdisability. (Id.) In the letter, Hartford summarized thebasis for its initial decision and addressed the additionalinfotmation from Dr. Gilliotte and Mr. White. Hartfordconc[uded that Dr. Marks did not offer any physicalrestrictions and limitations which would preventPlummer from performing the altemative occupationsidentified in its February 1, 2005 letter trattsmitting itsdecision to terminate long term disability benefits. (Id.)Hartford also concluded based upon Dr. Zakin'sIndependent Psychotogical [•30] Record Review, thatPlummer did not suffer from a behavioral healthimpairment which would prevent her frotn performingthe "alternative occupations" identified in the February 1,2005 letter. (Id.)

Following denial of her appeal, Plummer brought thecomplaint that is now before the Court. The analysis nextturns to the standard of review.

iI. STANDARD OF REVIEW

A participant or beneficiary of an ERISA qualifiedplan may bring suit in federal court to recover benefitsdue under the terms of the plan. 29 U.S.C. §

1132(a)(I)(B). When an ERISA plan administrator's

decision to deny benefits is brought before a court, thecourt engages in a de novo review of the decision unlessthe benefit plan gives the ptan administrator discretionaryauthority to determine eligibility or to constme the terms

of the plan. Firestone Tire & Rubber Co, v. Bruch, 489U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989).

Where the plan administrator is given nodiscretionary authority by the plan, review by the court isde novo with respect to both the facttial determinations aswell as the legal conclusions of the plan administrator. Id.Where there is a clear grant of discretion, (*311 thecourt applies an arbitrary and capricious standard of

Page 9

review to the administrator's decision to deny benefits.Wulf v. Quantum Chemical Corp., 26 F.3d 1368, 1373(6th Cir. 1994), cert. denied, 513 U.S. 1058, 115 S. Ct.667, 130 L. Ed. 2d 601 (1994).

The Sixth Circuit does not require a plan to use anymagic words such as "discretionary" to creatediscretionary authority for a plan administrator inadministering the plan. Johnson v. Eaton Corp., 970 F.2d1569, n.2 (6th Cir. 1992). Yet the Sixth Circuit hasconsistently required "a clear grant of discretion [to theadministrator]" before replacing its duty to engage in denovo review with the arbitrary and capricious standard.Wulf, 26 F.3d at 1373. When considering whether a cleargrant of discretion is given, courts are to "focus on thebreadth of the administrators' power - their'authority todetermine eligibility for benefits or to construe the termsof the plan." Perez v. Aetna Life Insurance Co., 150 F.3d

550, 555 (6th CBr. 1998)(en bane)(citing Block v. Pitney

Bowes, lnc. 293 U.S. App. D.C. 256, 952 F.2d 1450,

1453 (D.C.Cir, 1992), cert, denied, 531 U.S. 814, 121 S.Ct. 49, 148 L. Ed. 2d 18 (2000). [*32j

The requirement to submit written proof of loss, byitself, does not confer discretionary authority. Hoover v.Provident Life and Accident Insurance Co., 290 F.3d801, 808 (6th Cir. 2002); Perez v. Aetna Life InsuranceCo., 96 F.3d 813, 826 (6th Cir. 1996)(judgment vacatedon other grounds). Also, language requiring "due writtenproof of loss" does not grant discretionary authority.Napier v. Hartford Life Insurance Co., 282 F.Supp.2d531, 534 (E.D.Ky. 2003). However, a requirement of"satisfactory proof' confers discretionary authority.Perez, 150 F.3d at 558. In addition, discretionaryauthority is granted where the plan administrator has theduty to "interpret the terms and conditions of the Plan."Brown v. National City Corp., Case iVo. 97-6130, 1998U.S. App. LEXIS 28055, 1998 WL 787084 at °2 (6th Cir.

Oct. 29, 1998). Discretionary authority is also grantedwhere a claim is to be denied unless the planadministrator "allows such claim in full." Id. Finally,discretionary authority is granted where the disability isdetermined on the basis of medical evidence satisfactoryto the insurer. jNitter v. Metropolitan Life Insurance Co.,925 F.2d 979, 984 (6th Cir. 1991). ["33]

A. Determination of the Standard of Review In thisCase

Hartford argues that its decision should be analyzedusing the arbitrary and capricious standard of review.

34

2007 U.S. Dist. LEXIS 488, *33

Plummer argues that a de novo standard applies becausethe policy does not grant discretionary authority toHartford to determine eligibility or to construe the terms

of the plan.

In support of its argument, Hartford cites Boone v.

Liberty Life Assurance Cotnpany of Boston, 161 Fed.

Appx. 469 (6th Cir. 2006), for the proposition that the

Sixth Circuit has analyzed policies that include areservation of a right to require objective medicalevidence of eligibility for disability benefits under thearbitrary and capriciotts standard. However, thisargument is very misleading and not well founded.

In Boone, the Sixth Circuit says that the arbitrary andcapricious standard is applied when the plan gives theadministrator discretionary authority to determine

eligibility. 161 Fed. Apps. at 472. It then sets forth the

portions of the plan that are relevant to the issues beforethe courtand not the portions of the plan relevant to itsdetennination of the standard of review to apply. [*34]

kt.

Had Hartford's Counsel conducted further research,it would have found that the policy at issue in Boone

clearly grants discretionary attthority:

Liberty shall possess the authority, in itssole discretion, to construe the terms ofthis policy and to determine benefiteligibility hereunder. Liberty's decisionsregarding construction of the terms of thispolicy and benefit eligibility shall beconclusive and binding.

Boone v. Liberty Life Assurance Co. ofBoston, Case No.1:04 CV 0088, 2004 U.S. Dist. LEXIS 30285. Doc. q 20,p. 12 (W. D. Mic•h Jul 2, 2004).

The Policy at isstte here, and specifically thelanguage cited by Hartford, provides no such grant ofdiscretionary authority. The Policy does not grantHartford the "breadth of administrators' power" necessaryto confer a clear grant of discretion. Therefore, Hartford'sdecision to terminate Plummer's long term disabilitybenefits will be reviewed de novo.

B. Application of De Novo Standard

When conducting a de novo review, the courtdecides whether or not it agrees with the decision under

Page 10

review. Myers v. Iron Workers District Council ofSouthern Ohio & Vicinity Pension Trust, Case No.2:04-CV-966, 2005 U.S. Dist. LEXIS 39191, 2005 WL2979472 at *1 (S.D.Ohio Nov. 7, 2005) [*35] (citingPerry v. Simplicity Engineering, 900 F.2d 963, 966 (6th

Cir. 1990)). In doing so, the administrator's decision isaccorded no deference or presumption of correctness.Napier, 282 F.Supp.2dat 534. "The court must determinewhether the adtninistrator properly interpreted the planand whether the insured was entitled to benefits." Id at534-35. Finally, the de novo standard applies to both thefactual determinations and the legal conclusions of theplan administrator. Id. Therefore, this Court must reviewthe record to determine whether Hartford made thecorrect decision in terminating Plummer's long termdisability benefits.

C. Administrative Record and Post HocRationalizations Thereof

The court's review is limited to the administrativerecord of the benefit determination absent a procedura.lchallenge to the administrator's decision. Willcins v.Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6thCir. 1998). There has been no procedural challenge inthis case.

A court may consider only the evidence available tothe administrator at the time the final decision [*36] wasmade. Miller, 925 F.2d at 986 (6th Cir. 1991). Thisincludes consideration of what occurred during theadministrative review and appeals process. Id. Forexample, a mental illness triggered by a physical injuryshould be addressed even if the mental illness is notincluded in the application for benefits and arisesthereafter. Kalish v. Liberty Mutual/LiGerty LifeAssurance Co. of Boston, 419 F.3d 501, 511-12 (6th Cir.2005).

Further, while reviewing the administrative record,the Court may not consider a post hoc explanation of anadministrative body's decision. University Hospitals ofCleveland v. Emerson Electric Co., 202 F.3d 839, n.7(6th Cir. 2000). Administrators and their attomeys are notpermitted to "shore up" a decision after-the-fact bytestifying as to the "true" basis for the decision after thematter is in litigation. Id.

D. Conflicts of Interest

Plummer argues that a conflict of interest exists in

35

2007 U.S. Dist. LEXIS 488, *36

this case. When reviewing an administrator's decision,courts are guided by the impact of conflicts of interest.One such conflict of interest arises when a plan contractswith individuals to offer [*37] opinions. In this situation,the plan administrator has a clear incentive to contractwith individuals who are inclined to frnd in its favor.

Calvert v. Firstar Finance, Inc.. 409 F.3d 286, 292 (6th

Cir. 2005).

E. Medical Opinions

The issue of the weight to be given to the opinion ofPlummer's treating physicians also arises in this case.Plan administrators may not ignore the opinions oftreating physicians but they are not reqttired to givespecial deference to thetn. Boone, 161 Fed.Appx. at

473-74. Further, a plan administrator may not credit theopinion of a treatittg physician if the plan requires that thetreating physician's opinion be supported by objec[ivemedical evidence and it is not. Id. at 473. Finally, when aplan administrator elects to rely upon the medical opinionof one doctor over that of another, the planadministrator's decision cannot be said to have beenincorrect so long as it is possible to offer a reasonedexplanation, based upon the evidence, for the decision.McDonald v. 6Vester-n-Southern Life Insurance Co., 347F.3d 161, 169 (6th Cir. 2003).

However, whether a doctor has physically [*38]examined the claimant is an issue to be considered.Kalrsh, 419 F.3d at 508. The failure to conduct a physicalexamination raises questions about the thoroughness andaccuracy of the doctor's conclusions. Id,

F. The Receipt of Social Security Benefits

Finally, the Parties discuss the treatment of theSocial Sccurity Administratioti's ("SSA's") decision togrant Social Secttrity Benefits to Plummer. An SSAdetermination, while not binding, is also not meaningless.

Calvert, 409 F.3d at 294. The SSA determination, at aminimum, may support the conclusion that anadministrative agency charged with examining theclaimant's records found support for the treatingphysicians' opinions. Id. Further, it is "inconsistent for a

plan administrator to ignore the SSA's favorabledetermination, after the administrator had expresslyrequested the claimant to apply for SSA bene6ts." Borysv. Metropolitan Life Insurance Co. MelLife Disability,Case No. 03CV/162. 2005 U.S. Dist. LEXIS 8013, 2005WL 1037469 at *6 (S.D.Ohio May 4, 2005)(citing

Page I l

Whitaker v. Xarfard Life and Accident Insurance Co.,404 F.3d 947, 12/ Fed Appx. 86 (6th Cir. 2005)); see

also, Calvert, 409 F3d at 294; [*39] Pierce v. KentuckyUtilities Cotnpany's Long Term Disability Plan, 357F.Supp.2d 979, 989 (E.D. Ky. 2005). Having set forth afactual background and the standard of review for ERISAclaims, the analysis next tums to the cross motions forjudgment on the administrative record.

III. CROSS MOTIONS FOR JUDGMENT ON THEADMINISTRATIVE RECORD

A brief analysis of the factual background will firstbe set forth. This analysis is followed by an analysis ofHartford's decisions, an analysis of Hartford's argumentsand Briefs and the conclusions.

A. Analysis of the Factual Background

Plummer's last day as a pharmacist at Kmart wasJttly 19, 1998. She ceased working dtte to severe pain inher lower back. Plumnter began receiving disability payfrom Kmart on July 20, 1998.

Plttmmer was initially treated for back pain by Dr.Seymour, to whom she had been referred by Dr. Fronista,her general practitioner. After some unsuccessfitl therapy,Dr. Seymour ordered an MRI which revealed a mildcentral bulge of the intervertebral disc at the L4-5 level.Dr. Brown, who conducted an IME at Kmart's request,confrtmed this finding and reeommended an EMG of theright lower ( *40] leg to try to better delineate the sourceof Plummer's pain. Both Dr. Seymour and Dr. Brownconcluded that Plummer was unable to work.

In September of 1998, Dr. Seymour concluded thatPlummer had not responded to the chiropractic care thatshe was receiving. He recommended a trial of epiduralsteroids and also concluded that Plummer should have anEMG, which she did. The EMG indicated acute posteriorrami irritation at the L5-S I level.

After further therapy and another epidural steroidinjection, Dr. Seymour determined that Plummer had adegenerative disc at L4-5 and some mild L5-S1 nerveroot irritation. He concluded that Phtmmer could not yetreturn to work and referred her to Dr. Amongero, anorthopedic spine surgeon.

Next, at Kmart's request, a second IME wasconducted by Dr. Gilliotte. Dr. Gilliotte examined

36

2007 U.S. Dist. LEXIS 488, *40

Plummer and reviewed her medical records on October30, 1998. He agreed with the findings from the previousMRI and ENIG. He concluded that back surgery would bepremature and also determined that Plummer could notyet return to work.

At about this same time, Plummer was referred toDr. Goodall, D.G., at the Greene Memorial Hospitaloutpatient neurosurgical clinic by Dr. [*41] Teeters, herchiropractor. Dr. Goodall detennined that a myleogramCT would be as effective as a discogram. The resttlts ofthe myleogram CT and post-myleogmm CT performedon November 9, 1998, were negative and Plummer wasdismissed from the neurosurgical cfinic. Dr. Goodallconcluded that, although obvious frank nerve rootcomproniise was not identified, Plummer had radicularpain. He suggested that Plummer consider getting asecond opinion at a major neurosurgical center, which

she did.

Plummer underwent a series of tests andexanrinations at the Mayo Clinic on November 23-25,1998. Staff at the Mayo Clinic concluded that backsurgery was not appropriate and recommended furtherchronic pain management evaluation and follow-upevaluation by Plummer's hometown treating physicians.A psychologist at the Mayo Clinic concluded thatPlummer exhibited depressive symptoms of frustration,irritability, some anbedonia and hopelessness.

Upon her teturn from the Mayo Clinic, Plutnmeragain saw Dr. Gilliotte. He concluded that Plummer hadback and right lower extremity pain which had thus fat•avoided a definitive diagnosis. He then ordered a CT scanof the pelvis and a bone scan. He also reported (°42] thatPlummer exhibited symptoms of depression. Finally, Dr.Gilliotte referred Plummer to Dr. Detnirjian for pain

management.

Kmart then obtained a third IME that was conductedby Dr. King. Dr. King noted that Plummer's CTdiscogram was positive at two levels: L4-5 and L5-Sl.

He concluded that Plummer was unable to function as aregistered nurse 6 and was unable to return to work.

6 Plummer, of course, was a pharmacist and nota registered nurse.

In April of 1999, Dr. Amongero, Plummer'sorthopedic spine surgeon, performed a lumbar diskogratn.He found no symptoms at the L3-4 disc but he did find

Page 12

posterior extension of contrast material at the annulus atL5-S l and immediate severe pain.

On June 19, 1998, Plttmmer had back surgery. Shehad an anterior and posterior surgical fusion between theL4 and the sacrum.

Plu»rmer next submitted a claim for disabilitybenefits to CNA. On July 21, 1999, CNA approvedPlummer's claim effective July 20, 1998. The period fromJuly 20, 1998, to January 20, 1999, during which [*431Plummer was receiving disability pay from Kmart, wasused to satisfy the Policy's six-month elimination period.

A lumbar CT scan on December 16, 1999, revealedthe results of surgical fusion between Plummer's L4 andsacrum. The CT also indicated that there may be centrallylocated etutnped nerve roots or other soft tissue lesion inthe spinal canal at the L4 and L5 levels.

Plummer was seen by Dr. Gilliotte several timesduring the year 2000. Each time Dr. Gilliotte found thatPlttmmer contintted to be disabled. Specifically, onSeptember 15, 2000, Dr. Gilliotte reported to CNA thatPlummer's function had not improved and that it wouldnever improve enouglt for her to return to full time work.

CNA then scheduled Plummer for an FCE to beconducted on November 15 and 16, 2000. The FCE wasdiscontinued on the first day due to the pain beingexperienced by Plummer. Following the FCE, Dr.Gilliotte again told CNA that there had been noimprovement in Plummers condition and that futureimprovement was uncertain.

In February of 2001, Plummer applied for andreceived Social Security disability benefits. The SocialSecurity Administration determined that Plummerbecame disabled on July 20, 1998, and [*44] was entitledto begin receiving benefits in February of 2000.

Dr. Gilliotte again evaluated Plummer in Septemberof 2001. He conctuded that she could not perform fulltime work and that she continued to have severe limits toher ability to sit, stand, walk and concentrate.

In October of 2002, CNA offered Plummer a lumpsum to settle her disability claim. She did not accept thisoffer and continued on disability insurance.

In late 2003, Hartford assumed responsibility foradministration of the Policy and thus for administration

37

2007 U.S. Dist. LEXIS 488, *44

of Plummer's claim. Hartford concluded that, while therewas evidence supportive of Plummer's disability, it wasminimal. It then requested that Plummer provide a workand education history and a current APS. Plummer alsosubmitted a Disability Claim Form in which she reportedthat she could not return to work until a new technique isdeveloped to decrease pain and increase mobility.

In June of 2004, Hartford again asked Plummer for a

periodic update. Plummer responded with a ClaimantQuestionnaire and an APS. Plummer reported that shehad arachnoiditis and severe back pain that there hadbeen no change in her condition. The APS confirmedPlummer's report [*45] and noted that no treatment isavailable for this condition. Plummer also indicated thatshe had seen Dr. Fronista and Dr. Snow within the past

18 months.

After receiving Dr. Fronista's office records forPlummer since January 2003, Hartford referredPlummers claiin to its SIU as a "proactive" claim. TheSIU then had surveillance of Plummer conducted on twodifferent occasions in August and September of 2004followed by an interview conducted by one of the SN's

investigators.

Plummer was not observed outside her residence on

the first two days of the initial surveillance and wasobserved outside her residence for approxitnatelythirty-nine minutes on the third day. Of the thirty-nineminutes, almost six minutes were captured on video andPlummer was shown for the entire six minutes. On thethird day, Plutnmer was observed and videotaped driving,walking, entering and exiting her vehicle, squatting,bending at the waist, reaching, lifting and pushing a

shopping cart.

Hartford then requested a second surveillance whichwas conducted approximately one month later. On thefirst day of this surveillance, Plummer was not observedoutside her residence. On the second day, she wasobserved [*46] away from her residence for about twohours. Of the two hours, twelve minutes was captured onvideo and, of the twelve minutes, Plummer is seen foralmost seven minutes. Dttring this time, she was observedand videotaped walking, bending at the waist, carrying ababy in a car seat, reaching and poling, and driving.

Following the surveillance, Plummer wasinterviewed by an SIU investigator. Plummer indicatedthat she had been watching her granddaughter during the

Page 13

surveillance because the child's mother had been beatenby the father of the child. Plumtner told the investigatorthat she could not rentm to work because of severe paincaused by arachnoiditis. She also told the investigatorthat she could bend and twist at the waist, squat, kneeland reach to the front and side bttt that she could only

walk for about twenty or twenty-five minutes, stand forfifteen to twenty minutes and lift and carry itemsweighing less than five pounds.

Hartford then sent copies of the surveillance to Dr.Fronista. The record does not include a response.

Hartford next schedttled an [ME for Plummer withDr. Klein. Dr. Klein examined Plummer and the medicalrecords tltat were provided by Hartford. The records[*47] initially provided by Hartford did not include thesurveillance.

Dr. Klein concluded that Plurnmer was credible andhad ongoing pain. He also conclttded that she wouldpresently be classified in the sedentary job classification.

After receiving this report from Dr. Klein, Hartfordthen sent him copies of the two surveillance videos.Without again seeing Plummer, Dr. Klein issued anaddendum report in which he indicated that Plummer iscapable of performing at a higher level than she presentedto him earlier, that Plummer was capable of lifting up toten pounds and was capable of standing and walkingabout as needed on a frequent basis. This, according toDr. Klein, would put Plummer in the light dutyclassification and capable of performing the duties of apharmacist.

Hartford next sent Dr. Klein's report and theaddendum thereto to Dr. Fronista. Dr. Fronista respondedthat he had been treating Plummer for the usttal colds anda bout with pneumonia and that he does not involvehimself with her back problems that have been treated byothers.

Hartford then decided to terminate Plummer's longterm disability benefits effective February 1, 2005. Thisdecision, according to Hartford, was [*48] based uponDr. Klein's [ME and the surveillance. Hartford concludedthat Plummer could perform three occupations:Pharmacist, Pharmaceutical Sales Representative andQuality Assurance-Pharmaceuticals.

Plummer then went back to Dr. Gilliotte. Dr.

38

2007 U.S. Dist. LEXIS 488, *48

Gilliotte examined Plummer and her medical records andconcluded that she had stable chronic back and leg painand that she was not physically capable of work. He alsoreported that Plummer was seeing Steve White, acounselor, to help with some psychological adjustments.

Next, Plummer appealed Hartford's decision toterminate her long term disability benefits. Along withthe appeal, she submitted Dr. Gilliotte's latest report and a

brief report by Steve White, both o f which conc luded thatPlummer was ftilly disabled.

Hartford then sent Plummer's medical records to Dr.Marks for a record review. Hartford also sent Plummer'spsychological records to Dr. Zakin for a record review.The surveillance videos were sent to both of these

doctors.

Dr. Marks reviewed the records, spoke with Dr.Gilliotte and concluded that Plummer was capable ofperforming the activities of a light work classificationwliich entails lifting bf ttp to twenty pounds and [*49]some walking and standing. Dr. Gilliotte told Dr. Marksthat even patients with chronic back pain can perfonntasks in an emergency which they normally could notperfonn.

Dr. Zakin reviewed Pltnmer's records, spoke withSteve White and concluded that the video tape indicatesunder-reporting of symptoms. Mr. White told Dr. Zakinthat Plummer was unable to perfonn any type of work atthe time based upon major depression. However, Dr.Zakin noted that Mr. White's treatment notes do notdocument any significant problems with concentration ormemory and that no cognitive testing had beenperformed. Dr. Zakin conclttded that there was noobjective medical evidence that Plummer's depression issevere enough to cause occupational impainnent.

After receiving the reports from Dr. Marks and Dr.Zakin, Hartford denied Plummer's appeal. Plumtner thenfiled the complaint that is now before the Court.

B. Analysis of Hartford's Decisions

The basis for analyzing Hartford's decisions will first

be set forth. This will be followed by an analysis of the

decisions.

I. Basis for Analysis

Hartford's decision to terminate Plttmme>'s long term

Page 14

disability benefits is reviewed de novo. [*50] Therefore,the Court must decide whether or not it agrees withHartford's decision. In doing so, the Court mustdetermine, based upon the administrative record providedby the Parties, whether Hattford properly interpreted thePolicy and whether Plummer is entitled to long termdisability benefits.

The first issue to be addressed is which Policy

definition of disability is to be applied. CNA andHartford's correspondence indicates that the Policy's"own occupation" definition of disability applies for thefirst 24 months and the "any oceitpation" definitionapplies thereafter. While this may be what the Policysays, it is not what the "Summary of Benefits" given tothe employees says.

The definition of disability given to the employeesindicates that the "any occupation" provision applies afterthe "own occupation" provision has been paid for theInsured Employee Occupation Period shown in theSummary of Benefits. However, the Summary ofBenefits does not include an Insured EmployeeOccupation Period, Therefore, the "own occupation"definidon of disability that was communicated to thosecovered by the Policy will be ttsed.

Plummer is disabled if she is continuously unable toperform [*51] the substantial and Inaterial duties of herregular occupation, if she is under the regular care of alegally qualified doctor and if she is not gainfullyemployed in any occupation for which she is or becomesqualified by education, training or experience. Substantialand tnaterial duties are the necessary ftinctions ofPlummer's regular occupation, and Plummer's regularoccupation is phartnacist.

The record includes two job descriptions for apharmacist. One is a Job Analysis for the Position ofPharmacist prepared by Bntbaker RehabilitationManagement, Inc. and the other is ICmart's jobdescription for the position of pharmacist. Both areincluded in the AR as part of the FCE report. The JobAnalysis is a more complete description of substantialand material duties and will be used herein.

2. Analysis of Hartford's Decisions

Having set forth the applicable Policy definition ofdisability and identified the source of the duties forPlummer's regular occupation, the analysis tums to

39

2007 U.S. Dist. LEXIS 488, *51

Plummer's initial disability regarding which there is noreasonable doubt. Plummer was initially disabled.

Plummer ceased working as a Kmart pharmacist onJuly 20, 1998 with severe back pain. [*52] The initial

diagnosis was a mild central bulge of the intervertebraldisc at the L4-5 level causing minimal impingement onthe ventral aspect of thecal sac. However, Plumtner'sdoctors told her that surgery was premature.

Plummer then tried therapy, epidural steroidinjections, a warm "N" back brace and chiropractictreatment, and pain management. Plummer continued tobe tested and was assessed by the Greene MemorialHospital neurosurgical clinic and the Mayo Clinic. Shealso tmderwent three IME's.

After trying several potential solutions, undergoingseveral tests and obtaining several second opinions,Plttmmer underwent back surgery. The surgery wasperformed by her orthopedic spine surgeon on June 19,1998. She had an anterior and posterior sttrgical fusionbetween her L4 and her sacrum.

Plummer then applied for and received disabilitybenefits from CNA pursuant to the Policy. At the timeDr. Seymour, Dr. Gilliotte, Dr. Brown and Dr. King hadall concltided that Plummer was disabled.

Plummer continued to see Dr. Gilliotte through 2001.He reported that she was disabled during this time period.

On December 16, 1999, Plumtner underwent apost-operation lumbar CT scan of her back. The ['53]CT scan revealed the work that had been done as part ofthe surgery and also revealed that there may be centrallylocated clumped nerve roots or other soft tissue lesion intlte spinal canal at the L4 and L5 levels.

CNA then commissioned an FCE that was conductedon November 15, 2000. However, it was discontinued onthe first day and provided no indication that Plummerwas able to work.

In February of 2001 Plummer applied for andreceived Social Security disability benefits. Also, inOctober of 2002, CNA offered Plummer a lump sumsettlement for her disability claim which Plummerdeclined.

In late 2003, Hartford enters the pictttre. Hartfordassumed responsibility for the administration of the

Page 15

Policy. Upon review of Plummer's file, Hartford foundsupport for her disability since 2001 but termed thesupport "minimal"

However, the support in the file was not "minimal."The support included clear indication that Plummer hadback surgery, was still in pain and was thought to bedisabled by several doctors. No reason is given forselecting 2001 as the cut-off, but, given the nature ofPlummer's disability, a review of the entire record wasappropriate.

Hartford then asked Plummer for [*54] additionalsupport for her disability. To this Plummer respondedthat she was not able to return to work until a newtechnique is developed to decrease pain and increasemobility.

In June of 2004, Hartford again asked Plummer forwhat it termed a "periodic ttpdate." Plummer respondedthat she had arachnoiditis and severe back pain and hadlimited mobility. She also submitted an APS thatconfirmed that she had arachnoiditis 7 and severe backpain and indicated that no treatment is available for thiscondition.

7 Arachnoiditis is an inflammation of thearachnoidea. The arachnoidea, in this case, is themetnbrane covering the spinal cord. WilliamAlexander Dorland, Dorland's !llttstra(ed Medical

Dictionary 105 (26th ed. 1981)

Hartford then asked Dr. Fronista for his officerecords regarding Plummer. Apparently Hartford askedonly Dr. Fronista becattse Plummer had indicated that shehad seen only him in the past 18 months. Again, givenPlummer's history as presented in tlte AR, Hartford cotddhave and should have [*55] asked other doctors who hadtreated Plummer.

After receiving Dr. Fronistas records, Hartfordreferred Plummer's claim to its SIU. The records Dr.Fronista sent to Hartford indicate that he had seenPlummer four times between August 7, 2003, and June28, 2004, for various reasons and that Plummer wassuffering from arachnoiditis.

Hartford's SIU had surveillance conducted onPlummer on two occasions. On the first occasion, shewas not seen outside of her residence on the first twodays and was observed outside her residence for

40

2007 U.S. Dist. LEXIS 488, *55

thirty-nine minutes on the third day. She was only seenon the video taken on that occasion for a short time.However, the surveillance report indicates that Plummertraveled to a nearby cleaners, a fast food restaurant and adepartment store during which time she was seen driving,walking, entering and exiting her vehicle, squatting,bending at the waist, reaching, lifting and pushing a

shopping cart.

The second surveillance occasion was about onemonth later. The second time Plummer was not observedoutside her residence on the first day. On the second day,she was observed outside her residence for two hours andten minutes. A video was made and Plummer [*56] isseen in the video for almost seven minutes. Thesutveillance report indicates that Plttmmer traveled to aprivate residence, to a medical center and then back toher residence during which time she was seen walking,bending at the waist, carrying a baby in a car seat,reaching, palling and driving.

Hartford's SIU then followed up the surveillancewith an interview. Plummer told the interviewer that shehad been watching her granddaughter during thesurveillance because the child's mother had been beatenby the child's father. She indicated that she was preventedfrom returning to work becattse of severe back paincattsed by arachnoiditis and that she could not sit or standfor any extended period of time. She also indicated thatshe could walk for only twenty or twenty-ftve minutes,stand for fifteen to twenty minutes at most, lift and carryitems that weigh less than five pounds and push an emptyshopping cart. Finally, she indicated that she could bendand twist at the waist, sqttat, kneel and reach to the frontand side. These are all indications that Plummercontintied to be disabled. This is wltat Plutnnier had beendoing during the surveillance and is hardly evidence thatshe could [*57] retorn to full time employment as a

pharmacist.

Hartford then scheduled an IME for Plummer withDr. Klein. Dr. Klein examined Plummer and reviewed therecords that Hartford provided. Dr. Klein concluded thatPlummer was credible and had ongoing pain. He alsoconcluded that Plummer was classified in the sedentaryjob classification meaning that she could lift up to tenpounds but would require frequent shift of body positionfrom standing, sitting and lying.

After reviewing Dr. Klein's initial report, Hartforddecided to send the surveillance videos to Dr. Klein.

Page 16

Although they apparently were in Hartford's possessionwhen Dr. Klein conducted his IME, they were notinitially provided to Dr. Klein and Hartford has.yet togive a reason why the videos were not initially provided.

After seeing the videos and based solely upon thevideos, Dr. Klein changed his assessment. He changedhis assessment to finding that Plummer was capable oflifting up to twenty-five pounds on an occasional basis,was capable of Gequently lifting up to ten pounds andwas capable of standing and walking about as needed ona frequent basis. This, according to Dr. Klein, putPlummer in the light dttty classification [*58] andcapable of perfotming the duties of a pharmacist.

However, Dr. Klein's "re-assessment" is flawed forseveral reasons. First he initially examined Plummer anddetermined that she was in the sedentary jobclassification and then changed his opinion based totallyupon the videos which included observance of Plummerfor a total of approximately thirteen minutes. He made noeffort to further examine Plummer or contact any of hertreating physicians. He also made conclusions regardingthe weight she could lift and the frequency with whichshe could lift it without knowing how much the items shewas shown lifting on the video weighed. He also foundthat the activities of Plummer shown on the video weredone "without any seeming difficulty." Yet, he could notknow if Plumtner was actually experiencing pain. Finally,he concluded, based only upon the thirteen minutes ofvideo, that Plummer could stand and walk as needed an afrequent basis and that she was capable of performing theduties of a pharmacist, duties that include walking for25% of a work day and standing for 70% of a work day.All of these conclusions are reached in light of the factthat Dr. Klein has a conflict of interest [°59] in that hewas hired by Hartford and courts have found thatcompanies like Hartford have a clear incentive to contractwith individuals who are inclined to find in their favor.

Hartford then sent Dr. Klein's assessment andaddendum to Dr. Fronista. Dr. Fronista responded that hehad only been treating Plummer for her usual colds and about with pneumonia and that he did not involve himselfwith her back anatomy and physiology.

This was enough investigation for Hartford. Withoutfurther review of the extensive records in Plummer's filefrom her other treating physicians, particularly those whohad seen and treated her for her back problems, Hartforddecided to terminate Plummer's long term disability

41

2007 U.S. Dist. LEXIS 488, *59

benefits. Hartford indicates that they reviewed Plummer'sfile for employability, but there is no FCE or other formalemployability assessment in the AR.

Based upon the administrative record, this is not thecorrect decision. It is clear that Plummer had andcontinued to have problems with her back, it is clear thatPlummer was being treated for back problems byspecialists and not by Dr. Fronista, it is clear that Dr.Klein's IME, which is. the only doctor's opinion reliedupon by Hartford, [*60] was seriously flawed, and it isclear that all of the other doctors, except Dr. Klein,thought P lummer could not perform as a pharmacist.

There are also other matters that make this decisionquestionable. For example, Hartford's letter terminatingPlummer's benefits lists only one of the videos as a basisfor its decision, yet the letter describes both videos. Also,Hartford was not interpreting the Policy in accordancewith the description provided to employees because theletter refers to three possible occupations and only thepharmacist occupation ntay be used.

With regard to the pharmacist occupation, the jobanalysis used by Hartford requires standing for 70% ofthe time and walking for 25% of the time. Yet Hattford

relied almost entirely upon a total of thirteen minutes ofvideo to eonchtde that Plttmmer could stand and walk forthese percentages of an entire work day. This isparticularly questionable in light of the results, or lackthereof, ofthe only FCEconducted by Hartford.

Plummer then appealed Hartford's decision toterminate her long terrn disability benefTts. Along withher appeal, she submitted reports from Dr. Gilliotte andfrom Steven White, a psychotherapist. [*61] Both hadrecently seen Plummer and both reported that she wasfully disabled. Dr. Gilliotte's opinion is particttlarlyrelevant because Dr. Gilliotte had initially been hired byCNA to perform an lME of Plummer.

Hartford then engaged consulting physicians toconduct record reviews. Dr. Marks conducted a medicalrecord review and Dr. Zakin conducted a psychologicalrecord review.

Dr. Marks incorrectly concluded that Plummer wascapable of performing the activities of a light work level.He based this conclusion in part on the limited amount oftime that Plummer is seen on the videos even though Dr.Gilliotte told him that even patients with chronic back

Page 17

pain can perform certain tasks in an emergency. He alsobased his opinion in part on Dr. Klein's flawedassessment. Finally, as with Dr. Klein, Dr. Marks'sopinion must be viewed in light of the fact that he washired by Hartford and courts have found that companieshave a clear incentive to contract with individuals whoare inclined to find in their favor. Dr. Klein's opinionmust also be viewed in light of the fact that he did notactually examine Plummer.

Dr. Zakin's opinion addresses a psychologicaldisability. Plummer now argues [*62] that she has both aphysical disability and a psychological disability.

Dr. Zakin's opinion is also flawed. He reported thatthe surveillance video indicates under-reporting ofsymptoms. However, he does not explain nor does theCourt understand how Dr. Zakin can make adetermination regarding psychological disability,particularly depression, from the thitteen minutes ofvideo. Dr. Zakin supported the diagnosis of an Axis Idepressive condition but determined that there was noobjective medical evidence thereof. However, as set forthabove, the Policy does not require objective medicalevidence. Finally, as with Dr. Klein and Dr. Marks, Dr.Zakin's opinion must be viewed in light of the fact that hewas hired by Hartford and courts have found thatcompanies have a clear incentive to contract withindividuals who are inclined to find in the company'sfavor. Dr. Zakin's opinion must also be viewed in light ofthe fact that he did not actually examine Pltunmer.

After receiving the reports from Dr. Marks and Dr.Zakin, Hartford denied Plummer's appeal. This decision,as was Hartford's initial decision to terminate Plummer'slong temt disability benefits, is not well founded. It isbased [*63] upon very limited video surveillance that isnot representative of the actual job and it is based uponflawed medical opinions.

C. Analysis of Hartford's Arguments and Briefs

Hartford raises several arguments regardingPlummer's disability. There are also issues regarding thequality of Hartford's Briefs. Each will be addressed inturn.

1. Hartford's Arguments

Hartford first argues that Plummer has the burden ofproving continued eligibility for benefits under the

42

2007 U.S. Dist. LEXIS 488, *63

Policy. However, the Policy requires Pltnnmer to sttbmitproof that she continttes to be disabled only if asked to doso. In this case, when Hartford asked, Plummer subinitted

the proof

Hartford next argues that it was entitled to rely uponDr. Fronista's response becattse he was the only medicalprovider that Plummer identified, when asked, ascurrently treating her. When Dr. Fronista was then askedto provide objective medical findings that Plummercontinued to be disabled, he referred Hartford to thosewho had treated Plummer for her back problems.Although Plummer did not provide additional objectivemedical findings regarding her back at that time, therewere already plenty of objective medical findings [*64]in the AR. Further, Plummer had no further treatmentoptions and relied upon medication until a new medicalprocedure could improve her condition.

Hartford then argues that Plutmner did not provideobjective medical findings on appeal. However, Plttmmerwas examined by Dr. Gilliotte prior to her appeal. Dr.Gilliotte reviewed Plumnier's medical history, examinedher and concluded that she has stable chronic back painand leg pain. He reported that she continued to bedisabled. The evidence of disability that is in the ARprior to the appeal combined with Dr. Gilliotte's findingsis enough.

Hartford next argues that the only information in theAR that could support a finding of disability are recordsindicating that Plummer underwent surgical proceduresprior to 2003 to resolve problems she was experiencing.While the AR indicates that Plummer underwent surgicalprocedures prior to 2003, there is much more. The AR

indicates that Pluntmer continued to experiencearachnoiditis and severe back pain and had limitedmobility. The AR also indicates that Plummer wassuffering from depression. Finally, several doctorsthought Plummer continued to be disabled after her backsurgery:

Hartford ["65] next argues that Plummer is notentitled to disability benefits for depression because shedid not identify depression as a basis for her claim. The

Court is unable to verify this statement because a copy ofPlummer's initial claim was not provided by Hartford.

However, assuming that it is tnte that Plummer did notidentify depression as a basis for her initial claim, shemay do so at a later date and has done so.

Page 18

In Kalish, the Sixth Circuit found that a mentalillness triggered by a physical injury and discovered afterthe initial application for benefits for the physical injurymust be considered by the insurer. 419 F.3d at 512. TheKalish court also distinguished Bishop v. ,ti'fetropolitan

Lije lnstrrance, 70 Fed. Appx. 305 (6th Cir. 2003), one ofthe cases cited by Hartford for support, because the planadministrator in Bishop fully considered the claimant'sevidence ofdepression. Id. at 511.

In Wadyal v. Metropolitan Life /nsnrance Co., 2003U.S. Dist. LEX/S 21380, 2003 WL 22846229 (N.D.Cal.Vov. 24, 2003) a case cited by Hartford for ftirthersupport, the insured did not seek disability for depressionttntil after a decision on the final appeal [*66] had beenissued. That is not the case here. Here, there is medicalevidence in the record beginning in 1999 that Plummerwas depressed and there are objective medical frndings inthe record before Hartford's decision on Plutnmer'sappeal.

Hartford also cites Maniatty v. UntonProvidentCorp., 2/8 F.Strpp.2d 500 (S.D.N.Y. 2002), aJfd, 62Fed App.t 413 (2d Cir. 2003), in sttpport of its argumentthat Plummer's disability due to depression is not entitledto consideration because it was not listed on her initialapplication. However, the court in ttilaniatty found thatthe claimant could not raise evidence of additionaldisabilities at the final appeal for the first time. However,in this case, the AR includes indications that Plummerwas suffering from depression as early as 1999.

Assttming that its argument, or post hocrationalization, that Plttmmer's depression could not beconsidered would fail, as it did, Hartford next argues thatPlttmmer did not subinit "Objective Medical Evidence"supporting total disability due to depression. However,Hartford has again inisread its Policy. The Policy reqttires"objective medical findings" which are defined as tests,[*67] procedures, or clinical exantinatiotts. Plummersubmitted results of clinical examinations by StevenWhite and others who reported that she was sufferingfrom depression.

Hartford next argues that it was entitled to rely uponthe opinions of the independent medical examiner and thetwo medical reviewers that it hired. This may be the casein some situations. However, as determined above, in thiscase all three of these opinions that Hartford relied uponwere seriously flawed and all of the other opinionsindicate that Plummer is disabled.

43

2007 U.S. Dist. LEXIS 488, *67

Hartford next argttes that it is not bound by theSocial Security Administration's disability determination.Again, while this may be the Case, there are several otherconcurring medical opinions, both before and after theSocial Security Administration's determination, thatPlttmmer is disabled.

Hartford next makes much of the fact that Dr.Fronista declined to discuss Plummer's disability due toback probletns. However, Dr. Fronista clearly toldHartford that other specialists, and not he, were treadngPlummer for her back problems and there are adequateobjective medical findings in the AR by those specialists.

Hartford next argues that Plummer [*68] cannot relyupon medical records concerning treatment she receivedbetween 1998 and 2002. However, Hartford offers nosupport for this bald assertion. Also, Dr. Marks, one ofthe medical reviewers hired by Hartford relied on them.Finally, there are adequate medical records concemingexaminations and treatment that Plummer received after

2002.

Hartford next argues regarding Plummer'spsychological conditions that "Plummer's after the factattempt to allege a new basis to support a finding ofdisability" is "disingenuous." However, perhaps it isHartford that is "disingenuous." There are indications onthe AR beginning in 1989 that Plummer was sufferingfrom depression and Plummer submitted additionalobjective medical findings regarding depression as part of

her appeal.

Hartford finally argties that Plummer improperlyaccuses Hartford of making a committed effort to depriveher of her disability benefits. However, the AR includesevidence from which Plummer could reasotrably reachthis conclusion. She was found to be disablcd by severaldoctors, the Social Security Administration and even

CNA. CNA went so far as to offer Plummer a lump sum

to settle her claim. Then, as soon as Hartford [*69]'arrived on the scene, they called in their S!U includingsurveillance and a recorded interview, The SiU

investigation was followed by flawed assessments byHartford's doctors, based primadly on thirteen minutes ofvideo, that she was not disabled.

2, Hartford's Briefs

Attorneys have a responsibility to advocate for theirclients. However, that responsibility does not go so far as

Page 19

to perinit misstatement of the law or the facts to the court.

The Court nonnally would not address this issue suasponte. However, in this case the frequency ofmisstatements and the time burden placed on the Court toascertain the correct law and facts are too great. Withoutreaching conclusions on the misrepresentations inHartford's briefs at this time, the Court will identify sotneof the instances where Hartford's counsel may have gonebeyond merely advocating for its client.

First, Hartford misstated the law regarding thestandard of review. Had additional research been done,Hartford would have discovered that the case it cited didnot base an arbitrary and capricious review on thelanguage that Hartford cited to the Court.

Next, Hatlford conveniently misstates the Policyreqttirements [*70] regarding proof of disability. ThePolicy requires "objective medical finding." and defineswhat are considered objective medical findings. Yet,Hartford uses such terms as "objective medicalinformation," "objective medical proof," "objectivemedical evidence," attd "objective medical support" in itsBriefs.

Next, Hartford indicates that Plummer's claim wasexamined as part of its "annual review process." Yet thereis no evidence in the AR of an annuat review process.There is, however, evidence of a "proactive" review andinvestigation.

Next, Hartford says that Investigator Snow witnessedPlttmmer during the surveillance. Yet, the surveillancewas conducted by two unnamed individuafs that workedfor the firm Irired by Hartford to conduct the surveillanceand not by Snow. The record includes no surveillancecondttcted by Mr. Snow. The record does, however,include surveillance conducted on Aogust 14 and 15 by"Investigator # 101" and surveillance conducted onSeptember 12 and 13 by'9nvestigator# 109."

Next, Hartford says the only information in the ARthat could support a finding of disability are recordsindicating that Plummer underwent surgical proceduresprior to 2003. As indicated [*71] above, this is simplynot true.

Next, is the issue of disability dae to depression.Hartford's argument that Plummer could not raisedepression as a disability unless she raised it at the time

44

2007 U.S. Dist. LEXIS 488, •71

of her application or showed that it existed at the time ofher application appears to be a post hoc rationalizationand is a clear and blatant misstatement of the law as itapplies to this case.

Next, Hartford says that Dr. Gilliotte's expfanationthat Plummer was able to care for her grandchild in anemergency situation fails to explain her ability to runerrands for "several hottrs? ." However, the surveillancedoes not show that Piummer ran errands fbr "severalhours." In fact, the surveillance shows that Plttmmer didnot leave her residettce for most of the hours when the

surveillance was being conducted.

Next, Hartford indicates that the Policy "requiredPlaintiff to submit continuing objective medical findingsof her disability ..." This is misleading becatise the Policyonly requires that continuing medical findings be

provided ifrequested.

Next, Hartford indicates that "Plaintiffs after the factjttstiftcations and explanation of the events depicted onthe videotape and her alleged [•72] debilitating painthereafter are not part of the administrative record andcannot be considered by the Court. First, it seems logicalthat any explanation would be offered after the fact, thatis, after it was asked for or needed. But, moreimportantly, Plumrner's explanation is part of the AR andthe AR must be considcred by the Court.

Next, Hartford says that the activities performed byPlummer during the surveillance and not the number ofminutes captured on video should be the Court's focus.Yet, the pharmacist job description used by Hartfordrequires Plummer to perform certain activities for certainpercentages of the minutes or hours in a work day.

Finally, and clearly the inost troubling, the AR is

Page 20

incomplete and presumably the items missing were in thehands of Hartford. For example, certain pages areapparently missing and one page between PLUM 670 and671 is not Bates stamped. Also, at least one of Plutnmer'sapplications is missing and the Occupational Evaluationreferred to in Hartford's letter terminating Plummer's longterm disability benefits is missing.

D. Conclusions

There is evidence in the AR that Plummer is bothphysically and psychologically disabfed [•73] inaccordance with the Policy and Hartford's decision toterminate Plummer's disability benefits is not wellfounded. Therefore, Plummer's Motion for Judgment Onthe Administrative Record is GRANTED and Hartford'sMotion for Judgment On the Administrative Record isOVERRULED. Hartford is order to provide long terrndisability benefits to Pldmmer plus interest from the dateon which Hartford ceased paying the long tetm disabilitybenefits. See Calvert, 409 F.3d at 297. Hartford isordered to pay these benefits for as long as Plummerremains disabled under the terms of the Policy.

Plummer is given until not later than thirty days fromentry of this Order to submit a motion requesting anyattorneys' fee and other benefits to which she may believethat she is entitled under ERISA. This motion should besupported by appropriate evidence and reference to legalauthorities.

DONE and ORDERED in Dayton, Ohio, this Fifthday of January, 2007.

s( Thomas M. Rose

UNITED STATES DISTRICT JUDGE

45

Page I

LEXSEE 2006 OHIO 1374

STATE OF OHIO, Plaintfff-Appellee, vs. LYDIA HONNAKER,Defendant-Appellant.

APPEAL NO. C-040684

COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTONCOUNTY

2006 Ohio 1374; 2006 Olr1o App. LEXIS 1249

blarch 24, 2006, Date of Judgment Entry on Appeal

NOTICE:

[""I ] THESE ARE NOT OFFICIAL

HEADNOTES OR SYLLABI AND ARE NEITHERAPPROVED IN ADVANCE NOR ENDORSED BYTHE COURT. PLEASE REVIEW THE CASE IN FULL.

PRIOR HISTORY: Criminal Appeal From: HamiltonCottnty Court of Common Pleas. TRIAL NO.

B-0312206.

DISPOSITION: Affirmed.

HEADNOTES

INSANITY

SYLLABUS

The trial court's decision to reject the defendant'sinsanity defense was not against the manifest weight ofthe evidence, because the court, in concluding that thedefendant had been sane at the time of the offense, didnot arbitrarily ignore the testimony of the defenseexperts, bttt decided to accord niore weight to thetestimony of the state's expert.

COUNSEL: Joseph T. Deters, Hamilton CountyProsecuting Attomey, and Scott M. Heenan, AssistantProsecuting Attorney, for Plaintiff-Appellee.

Faulkner & Tepe, LLP, and A. Norman Aubin, forDefendant-Ap pell ant.

JUDGES: DOAY, Presiding Judge. HILDEBRANDTand PAINTER, JJ., concur.

OPINION BY: DOAN

OPINION

DECISION.

DOAN, Presiding Judge.

[*Pl] Defendant-appellant Lydia Honnaker hassttffered from severe mental illness for most of her life.On November 10, 2003, Honnaker was a patient at theSummit Behavioral Heathcare Center ("Summit"), havingbeen found not guilty by reason of insanity in a prior[**2] critninal case. One of the other patients inHonnaker's unit was "acting up." The patient, who was atthe nurse's station, was agitated, screaming, and difficultto manage. Honnaker was upset by the other patient'sbehavior. Honnaker left the area of the nurse's station, butlater retunted. Honnaker told the staff that she could"come over this desk" and that she "didn't care about" anyof tltem.

[*P2] Dr. Sarah Mills, a Summit psychologist, wastrying to calm the other patient. Honnaker motioned toDr. Mills. Dr. Mills followed Honnaker down the hall inorder to talk to her. Honnaker was clearly upset, so Dr.Mills spoke to Honnaker about what she cottld do to calmherself. Honnaker gave various appropriate responsessuch as going for a walk or reading. Dr. Mills believedthat Honnaker was going to walk back down the hall. Atthat point, Honnaker grabbed Dr. Mills around the neck

46

2006 Ohio 1374, *P2; 2006 Ohio App. LEXIS 1249, **2

and pushed a crochet needle into her throat. Honnakerthen vety softly told Dr. Mills, "You are going to takeyour keys and open ttp this door." Dr. Mills began toscream for help. Summit staff arrived and subduedHonnaker. Honnaker was given Ativan to calm her.Subsequently, Honnaker made apparent suicide (**3]attempts by drinking a bottle of nail polish and cutting

her wrists.

[*P3] Honnaker was charged with kidnapping. Sheentered a plea of not guilty by reason of insanity and fileda suggestion of incompetence. She was found competentto stand trial. Following a bench trial, she was fottndguilty of attetnpted kidnapping. Honnaker was sentencedto three years of community control, with intensivesupervision for, among other things, mental illness. Inaddition, Honnaker was ordered to comply with mentalhealth treatment and to abstain from using illegal drugs.Honnaker has appealed.

[*P4] Honnaker's sole assignment of error allegesthat the trial court's judgment rejecting her insanitydefense and Fnding her guilty of attempted kidnappingwas against the manifest weight of the evidence.Honnaker argues that she presented overwhelmingevidence that she suffered from a severe mental illness,and that because of that illness, she had not been able toappreciate the wrongfulness of her conduct. Further,Honnaker argues that the trial court ignored the testitnonyof psychiatrists Dr. Cyma Khalily and Dr. JamesHawkins that she was insane at the time of the incident.

[*P5] In [**4] order to establish her insanitydefense, Honnaker had to prove by a preponderance ofthe evidence that, as a result of a severe mental disease ordefect, she did not know the wrongfulness of her acts.See State v. John.son, 1st Disr. rVos. C-020256 and

C-020257, 2003 Ohio 3665; R.C. 2901.01(A)(14) and

2901.05(A). "The weight to be given the evidence and thecredibility of the wimesses concerning the estabfishmentof the defense of insanity in a criminal proceeding areprimarily for the trier of the facts." See State v. Thornas(1982). 70 Ohio St.2d 79, 434 N.E.2d 1356, syllabus. In

State v. Johnson, snpra, citing State v. Curry (1989). 45Ohio St.3d 109, 543 N.E.2d 1228, and Stare v. Brown(1983). 5 Ohio S1.3d 133. 5 Ohio B. 266, 449 N E.2d 449,

we stated, "Thus, if the record demonstrates that the trialcourt, as the trier of fact, considered the insanity defense,the reviewing court should defer to the trial court'sinterpretation of the evidence. Moreover, a reviewing

Page 2

court should only reverse a trial court's judgment on thedefense of insanity where the trial [**5] court waspresented with overwltelming and ttncontradictedevidence of the defendant's insanity, and where thatevi dencewas arbitrarily ignored."

[*P6] There was no dispute at trial that Honnakersuffered from a severe mental iflness. The question waswhether that illness prevented Honnaker fromappreciating the wrongfulness of her acts.

[*P7] Summit psychiatrist Dr. Prabha Mannavatestified that after the incident Honnaker seemed calmand her mood was stable. Honnaker was not paranoid ordelusional. According to Dr. Mannava, Honnaker'sthought process was clear. When Dr. Mannava tried toquestion Honnaker about the incident, Honnaker statedthat she wottld not answer any questions without hermother, who was also her tegal advocate, being present.

[*P8] Clinical psychologist Dr. Carla Dreyertestified on behalf of the state, and her report wasadinitted into evidence. Dr Dreyer interviewed Honnakerfor approximately one hottr and twenty-five minutes onFebruary 6, 2004, at the Hamilton County Justice Center,Dr. Dreyer also reviewed a series of documents,including Honnaker's Summit records. Dr. Dreyer statedthat Honnaker had "selective memory" of the incident.Honnaker [**6] remenibered events imrnediately beforeand after the incident, but had no meinory of the offenseitself. Honnaker reported shaking and having racingthoughts before attacking Dr. Mills and later attetnptingsuicide. The records reviewed by Dr. Dreyer showed tlrat,within one hour prior to the incident, Honnaker had triedto coerce a Summit staff ntember to let her leave the tinitwithottt permission. Shortly after the incident, Honnakertold staff tnembers that she wanted to leave Summit to bewith her ex-husband.

[*P9] Dr. Dreyer testified that, in her opinion,Honnaker suffered from a severe mental illness, but thatHonnaker did not meet the definition for legal insanity atthe time of the offense. Dr. Dreyer based her opinion onHonnaker's statements before and atter the incident thatshe wanted to leave Summit, her refusal to answerquestions without her mother being present, her failure toappear delusional, paranoid, or out of touch with realityduring or shortly after the incident, and her calm mannerduring the incident.

[*P101 The state also presented the testimony and

47


report of clinical psychologist Jennifer O'Donnell. Dr.O'Donnell interviewed Honnaker at Summit for about[**7] one hour and ten minutes on May 27, 2004, andshe reviewed documentary material along withHonnakeis Summit records- Dr. O'Donnell's reportindicated that, before Honnaker grabbed Dr. Mills,Honnaker had asked Dr. Mills for "level four privileges"so that Honnaker could obtain passes to leave Summit.Dr. 0'Donnell testified that, in her opinion, Honnakersuffered from a severe mental illness, but that illness didnot interfere with Honnaker's perception of reality at thetime of the incident because Honnaker did not displayany bizarre or unusual behavior in the actions leading upto the offense. In Dr. O'Donnell's opinion, Honnaker'sactions in apologizing, requesting to speak to her mother,and refusing to speak to Dr. Mannava indicated thatHonnaker appreciated the wrongfulness of her acts.

[*PII] Honnaker presented tlte testimony andreport of forensic psychiatrist Dr. Cyma Khalily, whoevaluated Honnaker for almost two hours at Stunmit onSeptember 19, 2004. Dr. Khalily also reviewed extensivedocttmentary information including Honnaker's medicalrecords and the reports of the other experts in the case.Dr. Khalily noted that Honnaker often carried a crochethook but had never [**8] used it as a weapon before theincident with Dr. Mills. Honnaker reported to Dr. Khalilythat she liked Dr. Mills and did not remember attackingher. Dr. Khalily noted that on October 23, 2003,Honnaker's medications were a"suboptimal" dose ofDepakote, a mood stabilizer, Wellbutrin, an activatingantidepressant, Abilify, an activating antipsychotic, andLamictal, which had been restarted with an inappropriatedosage that caused side effects. At the time of theincident, Honnaker had been taken off her medicationbecause overdoses of Larnictal, along with Depakote, had

caused liver damage.

[*Pl2] Dr. Khalily testified that Honnaker met thedefinition of not guilty by reason of insanity. Dr. Khalilystated that Honnaker had detnonstrated up-and-downmood swings, ttnpredictable behavior, impulsiveness, andsudden frts of anger. Dr. Khatily noted that, just prior tothe incident with Dr. MiNs, Honnaker had been angry andagitated. Dr. Khalily stated that Honnaker's medicationswere not at the optimum level, which contributed toHonnaker's agitation or "cycling" of up-and-down moodswings. In Dr. Khalily's opinion, Honnaker was unable toappreciate the wrongfulness of her acts because [**9]she was not on the optimum dosage of her medicine.

Page 3

[*P 131 The testimony and report of psychiatrist Dr.James Hawkins was admitted on Honnaker's behalf. Dr.Hawkins examined Honnaker at the Hamilton CottntyJustice Center on February 24, 2004. Dr. Hawkins alsoreviewed documentary evidence that included Honnaker'smedical records. In Dr. Hawkins's opinion, Honnaker, atthe time of the offense, was experiencing a"tnanicepisode precipitated by inappropriate medications." Dr.Hawkins stated that Honnaker's failure to recall theincident suggested "a delirium as a result ofmedications." Dr. Hawkins opined that Honnaker's activemental illness, along with the combination of medicationsshe was taking; rendered her unable to appreciate thewrongfulness of her acts.

[*P14] Honnaker also presented the testimony ofpsychiatrist Dr. Patrick Swanson, who had treatedHonnaker since she was fifteen years old. Dr. Swansonstated that wlten Honnaker was in a manic state, she wassometimes not able to appreciate what she was doing. Dr.Swanson testified that he had seen Honnaker "inhyped-up states where she has been irrational and notable to control herself."

[*P15] The trial court [**10] found that Honnakersuffered from bipolar syndrome, a severe tnental disease.In turning to the qoestion wlrether Honnaker couldappreciate the wrongfidness of her acts, the trial courtstated that it was troubled because Dr. Khalily's reportwas "gravely retrospective." In fact, Dr. Khalily stated inher report that she was at a "distinct disadvantage"because her evaluation of Honnaker was doneapproximately ten months after the offense, which madeit more difficult for Honnaker to recall the incident.

[*P16] The trial court also expressed concernsabout Dr. Hawkins's testimony. The court stated, "I askedDr. Hawkins since [Honnaker] claims that she has nomemory of the events, the attack itself, how he coulddetermine that, in her mind, what she did was not wrong.The record won't reflect that because it is printed, but weall sat here and waited and waited and Dr. Hawkinslooked at the ceiling. He couldn't answer the question. Hewent back and reiterated his opinion that in his opinion,she fit the criteria but he failed to answer the question."

[*PI7] In rejecting Honnaker'snot-guilty-by-reason-of-insanity defense, the trial courtstated, "I think that my opinion [**1I] has to rest on thefailure of Dr. Hawkins to answer my question. We dohave this from all of the pro€essional witnesses, from the

48

2006 Ohio 1374,*P17;2006 Ohio App. LEXIS 1249,**11

two psychologists, from the two psychiatrists and evenfrom Dr. Mannava that immediately preceding thisincident, [Honnaker] had full awareness and articulationas to what occurred, immediately after she had fitllawareness and articulation. It seems she had this memorylapse for just a brief instant[.] * * * One of thepsychologists apparently characterized this as selectivememory. There is nothing in the record to indicate that atthe time of this occurrence [Honnaker] was sufferingfrom any delusional signs. No one has testified she madeany bizarre statements, she did any bizarre activities[.] ** * She had no delusional signs at all. * * * All theevidence that we have indicates that [Honnaker] acteddeliberately, coherently, appropriately, in all of heractivities before the incident and even during theincident. From the description of the people involved, shewas clear in what she was doing, she grabbed Dr. Millsaround the neck, had her in a headlock, she said to her,you are going to take your keys and open this door."

[*PIg] In [**12] State v. Johnson, supra, we

upheld the trial court's judgment rejecting Johnson'sinsanity defense. Johnson had devised a plan to commitsuicide by firing a gun through a window in a residential

area, forcing police to shoot him. Ultimately, Jolrnson'ssuicide attempt was unsttecessful. Johnson pleaded notguilty by reason of insanity to various counts. Onepsychologist testified on behalf of the state, opining that

Johnson could appreciate the wrongfulness of his conductbased upon his well-organized behavior at the time of the

Page 4

incident, his awareness of what he was doing, and hisunderstanding of the possible conseqttences of hisactions. Johnson presented the testimony of three experts,including two psychiatrists, who testified that Johnsoncould not have appreciated the wrongfulness of hisconduct because he was not taking his medication, which

aggravated his mental illness, was delusional, paranoid,and suicidal, and was acting out a bizarre and illogicalplan at the time of the offenses. We upheld the trialcourt's rejection of Johnson's insanity defense, holdingthat the court's judgment was not against the weight ofthe evidence because the court had acted within (**13]its discretion in according more weight to the testimony

of the state's expert.

[*Pl9] The trial court in the instant case clearlyconsidered all the evidence presented by both parties onthe issue whether Honnaker appreciated the wrongfulnessof her conduct:-The-evidence-was eonflicting: The•courtdid not arbitrarily ignore Honnaker's evidence; rather, itchose to accord inore weight to the state's evidence. Thecourt acted within its discretion, and we cannot say thatits decision was against the manifest weight of theevidence. The assignment of error is overruled. Thejudgment of the trial court is affirmed.

Judgtnent affirmed.

HILDEBRANDT and PAINTER, JJ., concur.

49

Page I


STATE OF OHIO, Plaintiff-Appellee, vs. STEPHON JOHNSON,D efend ant-App elta nt.

APPEAL NOS. C-020256, C-020257

COURT OF APPEALS OF OIIIO, FIRST APPELLATE DISTRICT, HANIILTONCOUNTY

2003 Ohio 3665; 2003 Ohio App. LEXIS 3304

Jttly 11, 2003, Decided

NOTICE:

[•*1] THESE ARF NOT OFFICIAL

HEADNOTES OR SYLLABI AND ARE NEITHER

APPROVED IN ADVANCE NOR ENDORSED BY

THE COURT. PLEASE REVIEW THE CASE IN FULL.

PRIOR HISTORY: Criminal Appcal From: HamiltonCounty Court of Common Pleas. TRIAL NOS.

B-0100221 B-0104380.

DISPOSITION: Judgment affirmed.

HEADNOTES

INSANITY - ATTEMPT - SENTENCiNG

SYLLABUS

The trial court's decision to reject the defendant'sinsanity defense was not against the manifcst weight ofthe evidence, where the court's conclusion that thedefendant was sane at the time of the charged offensesdid not ignore the testimony of the defense experts btttstemmed rather from the court's decision to accord moreweight to the state's expert testimony.

The trial court did not err in denying the defendant'smotions for a judgment of acquittal on charges ofattempted mttrder, where the state proved that thedefendant had attempted to knowingly cause seriousphysical harm to thirteen police officers and one civilianin such a way that it would have proximately resulted intheir deaths.

The trial court properly imposed the maximumprison sentence on an offender who had escaped from atreatment facil'tty., where the court made the.appropriatefindings and gave sttpporting reasons based on theoffender's [**2] likelihood of recidivism.

COUNSEL: Michaet K. Allen, Hamilton CountyProsecuting Attorney, and Thomas J. Boychan, Jr.,Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Stephan D. Madden, for Defendant-Appellant.

JUDGES: SUNDERMANN, P.J., HILDEBRANDT andGORMAN, IJ.

OPINION

DECISION.

This case has been sua sponte removed from theaccelerated calendar.

Per Ctrriam.

[*PI] Defendant-appellant Stephon Johnsonappeals thejudgment of the Hamilton County Court ofCommon Pleas convicting him of fourteen counts ofattempted murder and fourteen counts of feloniousassault with accompanying firearm specifications as aresult of a nine-hour standoff with police. Joltnson alsoappeals the trial court's imposition of the rnaximttmprison term for his escape from a court-ordered treatmentfacility. For the reasons set forth below, we affirm.

[*P2] The following facts are undisputed. Since1999 Johnson has suffered from a severe mental disorder.

50

2003 Oltio 3665, *P2; 2003 Ohio App. LEXIS 3304, **2

Johnson has received various diagnoses, includingparanoid schizophrenia, bipolar disorder, depressivemelancholia, schizoaffective disorder andpsychosis-NOS. Johnson, who has a history of not takinghis medication regularly, has been [**3] psychiatricallyhospitalized six times in the last two and a half years forbizarre behavior and suicide attempts. He has also beenprobated on two occasions.

[*P3] On December 24, 2000, Johnson wasadmitted to the psychiatric ward of University Hospitalfor damaging his mother's home and for bizarre behavior.After he was discharged from the hospital on December31, 2000, Johnson lived on the streets and stayed withvariorts relatives, inclttding his cottsin. Although Johnsonhad been prescribed medication during his hospital stay,there was a problent with his medical card, and Johnsonwas unable to receive the medication after he left the

hospital.

[*P4] Shortly before 9:00 p.m. on January 7, 2001,Johnson told his cousin to leave his residence with hischildren, becatise Johnson had something he wanted to dowith the police. Johnson then began firing his gun out awindow of the residence into the street below. AfterJohttson had fired several sltots, including one shot thatwent through the roof of an unoccupied vehicle,neighbors began calling the Cincinnati police.

[*P5] When police arrived, they found ReverendCornell Sweet, his wife, and another passenger in a[**41vehicle on the street. Reverend Sweet told police that hehad been driving his vehicle near Johnson's residencewhen a bttllet flred by Johnson's gun entered through thedriver's door and stntck him in his upper thigh. The bulletcrossed through his groin area and lodged in his rightthigh. Police officers assisted the injured Reverend Sweetand his passengers to a safe location. Reverend Sweetwas then transported from the scene for medical

treattnent.

[*P6] During this time, Johnson continued to firegunshots from the residence, so the police evacuatedlocal businesses, rerouted traffic, and set up a perimeteraround the residence. The SWAT team was contacted,and arriving SWAT members replaced uniformed policeofficers inside the perimeter. Police negotiators andJohnson's family began attempting to contact Johnson bybullhorn, public address, and telephone.

[*P7] Sometime afler dark, a civilian vehicle inside

Page 2

the police perimeter began to proceed toward theresidence. Police officers Rick Malone and AnthonyBruccato, in an effort to alert the unknown driver of theongoing events by using spotlights and yelling.at him,exposed their hidden position, which was across the [**5]street from the Johnson residence and near a retainingwall at an intersection. As they did so, Johnson fired hisgun toward the officers. Officer Malone testifted that theshots ricocheted off the street and struck the embankment

above his head.

[*P8] The police then responded by authorizing a

sniper shot to protect the two officers. A police sniperfired a single shot at the muzzle-flash position in the frontwindow of the second floor of the residence. Foltowingthe shot, there was a period of silence. The police,uncertain about whether Johnson had been hit by thesniper, attempted to use an entry team to check onJohnson as well as other potential victims inside theresidence. The entry team, which consisted of policespecialists Todd Bntnner, Andy Nogtteira, Samuel Salaand Brian Meyer, police officers Scott Krauser and DanKowalski, and Sergeant Arthur Schultz, attetnpted to usea side door to the residence through a narrow walkway onthe lefl side of the house. While the officers were on theside of the house, Johnson fired a shot out a side windowtoward the officers below. Upon hearing the shot, theofficers realized that Johnson was alive, and theyretreated to safety.

[**6] [*P9] Throughout the night and into theearly morning hours, police continued their efforts to getJohnson to surrender by firing tear-gas canisters into theresidence and by attempting to contact him by publicaddress and telephone. At one point, Johnson picked upthe telephone and asked police negotiators about the teargas. As daylight approached, police specialists JohnRose, Eric Vogelpohl, Ronald Hale, and Clifton Mitchellwere positioned on a deck behind a home that waslocated northwest of Johnson's residence. Fromapproximately 3:55 a.m. to 6:00 a.m., Johnson fired hisgun toward the officers while they fired tear-gas canistersinto the residence. The police twice retumed fire.

[*P10] Negotiators and Johnson's family continuedtheir efforts to contact Johnson. At 6:12 a.m.,.Johnsonpicked up the telephone and began talking with policenegotiators. At 6:43 a.m., he agreed to come out of theresidence. Johnson followed police instructions andexited through the front door of the residence. Johnson

51

2003 Ohio 3665, *P10; 2003 Ohio App. LEXIS 3304, •*6

was taken into police custody and read his Miranda

rights. He refused to answer police questions and asked tospeak to an attorney. When police searched the residence,[**7] they found ninety-three unfired .40-caliber shellcasings placed in various rooms. A subsequent policeinvestigation uncovered fifty-three spent .40-caliber shellcasings in various areas outside the residence.

[*Pl I] On January 18, 2001, Johnson was indictedfor fourteen counts of attempted mttrder in violation of

R.C. 2903.02(8) and fourteen cotints of felonious assaultin violation of R.C. 2903.11(A)(2). Each of the charges

was accompanied by a firearm specification. Johnsonsttbsequently entered pleas of not guilty and not guilty byreason of insanity and asked the trial cottrt to evaluate hiscompetency to stand trial. The trial court ordered Johnsonto submit to a psychiatric evaluation. Dr. DavidChiappone, a licensed clinical psychologist, performedthe examination and found Johnson to be incompetent.

[*P12] At a competency hearing on March 21,2001, the parties stipulated to the contents of Dr.Chiappone's report, and the trial court fottnd Johnsonincompetent to stand trial. The trial court orderedJohnson to the Sttmniit Behavioral Heath CareOrganization for treatment. During his treatment, Johnsonjumped a fence [**8] and walked to his father's home.He turned hiinself in to the police the following day.Joltnson was subsequently cltarged with escape inviolation of R.C. 2921.34(A) ttnder a separate casenumber.

[*P13] On July 3, 2001, the trial court found thatJohnson had been restored to coinpetency. Thereafter,Johnson changed his plea to not guilty by reason ofinsanity, and the trial court ordered tltat Johnson beexamined to determine his state of mind at the time of theoffenses. A bench trial began on October 9, 2001.Because the state and Johnson had stipulated to the factsas set forth in the indictment, as well as to the exhibitsoffered by the state, the trial testimony focused primarilyon Johnson's mental state at the time of the offenses.

[*P14] The state presented testimony from policesergeant Douglas Ventre, who had been in charge of theSWAT team on the night of the charged offenses, policeofficer Malone, who had been positioned across the streetfrom Johnson's residence, police specialist Noguiera, whohad been a part of the entry team, and Dr. Robert Tureen,a licensed clinical psychologist. Sergeant Ventre, Officer,bfalone, and Specialist Nogueira [**9] each testified

Page 3

about Johnson's actions dttring his standoff with thepolice and about Johnson's appearance and demeanor atthe time of his surrender and arrest. Each testified thatJohnson, who was wearing a dark shirt and pants, walkedout the front door of the residence with a cordless phonein his hand and surrendered to police. When the trialcourt inquired about Johnson's appearance, each statedthat Johnson had a runny nose and reeked of a chemicalagent, but was otherwise calm and expressionless. Theyfurther testified that Johnson appeared to be aware of thepolice and was able to follow their instntctions.

[*Pl5] Dr. Tttreen testified that he had interviewedJohnson for an hour in August 2001 and reviewed a seriesof documents for purposes of determining Johnson'smental state at the time of the charged offenses. Dr.Tureen testified that Johnson had told him that he hadintended to commit suicide that night becattse of themental angttish and pain that he was experiencing.Johnson had stated that he was not taking his prescribedmedications and was repeatedly hearing Bible verses inhis head. Johnson told Dr. Tureen that he had a pistol,which he had purchased [**10] following an assaultupon him in December 2000. Johnson stated that he couldnot shoot himself for religious reasons, so he got the ideato commit suicide by getting the Cincinnati police toshoot him. Johnson stated that he had told his cousin totake his children and leave the premises because he didnot want them to get hurt. Jolm'son then called foremergency assistance and began firing shots out thewindow. When the police arrived, Johnson told Dr.Tureen, he continued to fire inore shots out the window.During this time, Johnson also stated that he could hearhis family outside asking him to surrender. Johnson toldDr. Tttreen that he had spent the night trying to decidewhether to live, that he had eventually decided that hewanted to live, and that he had given himself up without astruggle.

[*P16] Dr. Tureen testified that, in his opinion,Johnson suffered from a bipolar disorder and aschizoaffective disorder, both of which were severeniental illnesses. Dr. Tureen testified, however, that hedid not believe that Johnson was legally insane at thetime he committed the offenses. Dr. Tureen based hisopinion on the fact that Johnson's behavior at the time ofthe offenses [** I I] was well organized, that Johnson hada sufficient awareness of what he was doing, that Johnsonunderstood the wrongfulness of his behavior, and that heunderstood the possible consequences of that behavior.

52

2003 Ohio 3665, *P16; 2003 Ohio App.LEXIS 3304,**II

[*P17] Dr. Tureen stated that, in his opinion,Johnson was not actively delusional during the standoffbecause someone who was delusional typically actedirrationally or impulsively by exhibiting chaotic behavior,orienting to voices, and possessing a sense of fearfulness.Dr. Tureen stated that he had found no evidence thatJohnson had acted in this manner during the standoff. Dr.Tureen also stated that there was no evidence of Johnsonresponding to commands or explanations that werehallucinations ordering Johnson to do something. Dr.Tureen stated that the evidence demonstrated instead thatJohnson had been calm and controlled when he told hiscousin to leave the premises; that he had strategicallyplaced ammunition around the residence and was able toavoid police gunfire and tear gas throttghout the entirenine-hour standoff; that he was complacent when he wasarrested, and that he had asked for an attorneyimmediately following his arrest. Dr. Tureen stated that,in [**12] his opinion, these instances demonstrated notonly tllat Johnson had a sense of organization andplanning, btit also that Johnson had a sense of presence ofmind and control such that he knew what he was doingand the wrongfulness of the situation he was involved in.Consequently, Dr. Tureen opined that Johnson was saneat the time of the charged offenses.

(*PI8] In response, Johnson presented testimonyfrom his mother, ivy Gray, and three experts, Dr. JamesHawkins, Dr. Glenn Weaver, and Dr. Chiappone.

[*P19] Gray testified that her son had attendedcollege, had been in the Anny National Guard, and hadbeen employed as a stockbroker until sometime in 1998when he came to her hotise and would not leave his room.Gray testified that Johnson began to exhibit bizarrebehavior over the course of the next six months and thatshe first took Johnson to the hospital sometime inDecember 1998. Dtiring his twelve-day stay, Johnsonwas diagnoscd witlt bipolar disorder.

[*P20] Gray testified that, from that point forward,Johnson kept acting bizarrely and repeatedly attempted tocommit suicide. She described a cycle where Johnsonwas admitted to the hospital for several weeks at [**13]a time, and then, upon his release, he would stop takinghis medication at some point and relapse into bizarre andsuicidal behavior, for which he would be hospitalizedagain. Gray testified that on December 24, 2000, Johnsonbecame aggressive, throwing his weights through thewindows in her home and "crashing ttp" her house, so she

Page 4

called police and asked them to take Johnson to thehospital. While Johnson was in the hospital, Gray stated,she tried to have him probated, but Johnson was releasedbefore this could occur. Gray stated that she next receiveda call from her nephew on January 7, 2001, telling herthat Johnson was in his home randomly firing a gun outthe window. Gray went to the scene and told police thatJohnson was mentally ill. She testified that she faintedwhen she heard that Reverend Sweet had been shot, soshe did not get a chance to speak with Johnson thatevening. During cross-examination, Gray denied makingstatements to medical personnel that she and otherrelatives had been afraid of Johnson because of hisunpredictable and assaultive behavior.

[*P21] Dr. Hawkins, a licensed psychiatrist,examined Johnson at the court's request in Augttst 2000.[** 14] Dr. Hawkins testified that he listened to Johnson'saccount of the offenses, talked with Johnson about hishistory, and performed a mental-status examinationduring his meeting with Johnson. Dr. Hawkins stated thathe also reviewed a series of documents prior to renderinghis opinion.

[*P22] Dr. Hawkins testifred that Johnson hadtrouble collecting his thoughts and providing him with acoherent, rational and cohesive account of the offenses.Johnson told Dr. Hawkins that he was not taking hismedications at the time of the charged offenses; and hekept hearing Bible verses in his head. Johnson stated thata police officer named Fox had been harassing him andthat he needed to protect hitnself because of somealtercation that had taken place earlier, that he hadpurchased a gun, and that he had carried it with him toprotect himself. Joltnson told Dr. Hawkins that he went tohis cousin's house with a gun, called the police, and thenstarted shooting out the windows toward the police, sothe police would return fire and kill him.

[*P23] Dr. Hawkins tesdfied tltat, in his opinion,Johnson suffered from a schizoaffective disorder, whichwas a serious mental illness, and that [** 15] Johnson didnot appreciate the wrongfulness of his actions at the timeof the charged offenses. Dr. Hawkins based his opinionon the fact that Johnson had a long history of severepsychiatric illness, including paranoia, that he had beensuicidal in the past, and he had not been taking hismedication at the time of the offenses. Dr. Hawkinstestified that, in his opinion, Johnson was psychotic at thetime of the offenses because he was operating under the

53

2003 Ohio 3665, *P23; 2003 Ohio App. LEXIS 3304,**15

delusional belief that a particular Cincinnati police officernamed Fox was harassing him, and because he wasexperiencing great psychic distress manifested by theBible verses ntnning through his mind. Dr. Hawkinsstated that Johnson had set up a situation based upon hisdelusional belief that if he aggravated the police enoughby telling them that he was going to shoot them and bythen firing shots out the window, the police would thencome and automatically kill him.

[*P24] Dr. Hawkins admitted on cross-examinationthat Johnson knew that he was interacting with the police,that he knew the consequences of his actions, and thateach of the steps Johnson had taken that night couldappear logical and reasonable. Hawkins also [**16]admitted that Johnson had not been acting under acommand-type haliucination. Dr. Hawkins explained,however, that, in his opinion, the focus should have beenon Johnson's thoughts rather than on his actions. Hawkinstestified that, in his opinion, Johnson's whole thoughtprocess was illogical on the night of the charged offenses.Hawkins testified that if Johnson had been thinkinglogically at the titne, he would have either gone after thepolice officer named Fox, who he thought had beenharassing Itim, or he would have committed suicide.Thus, Dtt Hawkins concluded that Johnson was not saneat the time of the charged offenses because he had ahistory of severe mental illness, he was not taking hismedications, he was suicidal and paranoid, he wasoperating under a delusional belief, and his plan tocoinmit suicide by using police was bizarre and illogical.

[*P25] Dr. Weaver, a licensed forensic psychiatrist,testified that he interviewed Johnson in September 2001at the reqttest of defense cottnsel, and that he hadexamined a series of documents in order to determineJohnson's mental state at the time of the charged offenses.Dr. Weaver testified that, during his interview with[**17] Johnson, Johnson recounted the tirne leading upto his standoff with the police. Johnson told Dr. Weaverthat he had not been taking his medication, and that, as aresult, he had been hospitalized in December 2000.During the same time, Johnson also stated, he had beeninvolved in an altercation and had bought a gun forprotection.

[*P26] Johnson told Dr. Weaver that after he hadbeen discharged from the hospital on December 31, 2000,there was a problem with his medical card, and he wasunable to get his medication. Johnson also stated that he

Page 5

had lived with his relatives for a brief period of titne afterhis discharge, including his cousin. Johnson told Dr.Weaver that while he was staying with his cousin, hebecame more depressed and wanted to commit suicide,but that he could not do so for religious reasons. Johnsonstated that he was hearing voices and Bible verses, bothof which kept ntnning through his head. Consequently,Johnson stated, he decided to have the police kill him.

[*P27] Johnson told his cousin to take his twochildren and leave the house. He then called foremergency assistance and told the operator to send thepolice. When the police arrived, Johnson [**18] stated,he then began firing his gun out the window at randomover their heads. Johnson told Weaver he did not want toItit the police, but that he simply wanted to draw their fireso he would be killed. Johnson stated, however, that aftera lengthy period of time had passed where he hadexchanged gunfire with the police, he decided tosurrender and was taken into police custody.

[*P28] Dttring the interview, Johnson told Dr.Weaver that he had become involved in a cult and that asa result of this involvement lie had developed particularpowers that enabled him to use voodoo. Johnson told Dr.Weaver that he blamed his conduct and behavior on hisexperiences with the cult. Johnson further stated that,since his incarceration, he Itad been unable to practice hisvoodoo because he had had no contact with "theelements." Johnson stated, however, that he had sincediscovered that he could have contact with "the elements"by flushing his socks down the toilet. Dr. Weavertestified that Johnson was psychotic during the interview.

[*P29] Dr. Weaver testified that, in his opinion,Johnson suffered frotn a schizoaffective disorder, whichwas a serious mental illness. Dr. Weaver fitrther [**19]opined that Johnson did not know the wrongfulness of hisactions at the time he committed the charged offenses.Dr. Weaver based his opinion on the fact that Johnsonhad a long history of mental illness and that he hadstopped taking his medication, Dr. Weaver testified that,in his opinion, Johnson's failure to take his medicationled to an upsurge in his symptoms, causing him to bedepressed, suicidal, and psychotic. Dr. Weaver furthertestified that Johnson's actions on the night of theoffenses were consistent with his behavior on prioroccasions that had resulted in Johnson's hospitalization.Dr. Weaver testified that Johnson had experienced thesame psychotic pattern of hearing voices, having Bible

54

2003 Ohio 3665, *P29; 2003 Ohio App. LEXIS 3304, ** 19

verses run throtigh his mind, and having beliefs aboutvoodoo, during the night of the offenses, and that thispattern had been well documented in his medical records.

[*P30] During cross-examination, Dr. Weaveradmitted that Johnson was able to formulate a plan tocause his deatlt and that he had taken steps to carry outthis plan. However, Dr. Weaver testified that, in hisopinion, Johnson's ability to formulate a plan, as well asto express his concern for his cousin and his [•*20]cousin's children, did not necessarily mean that Johnsonwas sane at the time of the offenses. Dr. Weaver testifiedthat people who were psychotic could and did makeplans, and that they still had some vestiges of conscienceand consideration for others. Likewise, Dr. Weaver statedthat he did not believe that Johnson's knowledge of thepolice and his awareness of the situation meant that hewas able to discern the wrongfrtlness of his actions.

[*P31] Dr. Weaver dismissed the state's assertionthat Johnson could not have relapsed so suddenly giventhe fact that he had just been hospitalized for seven daysprior to the standoff and that hospital records indicatedthat he had been medically comptiant at tlte time of hisrelease. Weaver stated that, without blood levels beingtaken, there was no way to know if Johnson had reallytaken his medication dttring his hospitalization. Hefurther stated that because Johnson had beennoncompliant for two months prior to his hospitalization,the one week that Johnson had been hospitalized wouldnot have made that much difference in the acuteness ofhis illness.

[*P32] Dr. Chiappone testified that he hadexamined Johnson in March 2000, [**21 ] at which timehe had found Johnson to be incompetent to stand trial. Dr.Chiappone testified that he also examined Johnson inJuly 2001 for purposes of determining his mental state atthe time of the charged offenses. Dr. Chiappone testifiedthat Johnson was religiously delusional during the Julyinterview. Dr. Chiappone stated that Johnson had talkedabout voodoo and blood on a pillow that was somehowrelated to voodoo. Johnson told Dr. Chiappone that hehad been in a religious cult and that voodoo was going toprotect him, but he could not articulate how this would

occur.

[*P33] When Dr. Chiappone asked Johnson abotitthe charged offenses, Johnson told Dr. Chiappone that hehad been studying the Bible for days and that he had beenhearing Bible verses as well as voices telling him to kill

Page 6

himself, Johnson stated that he felt he was cursed and thatsomehow he had to eomtnit suicide. Johnson explainedthat while this did not make total sense to hini, he knew itwas what he needed to do. So Johnson told Dr.Chiappone that he decided to calt the police andsomehow have the police help him to commit suicide.

[`P34] Johnson stated that he told his cousin toleave his residence, [**22] and then he called foremergency assistance. When the police arrived, Johnsontold Dr. Chiappone, he Bred his gtm out the window sothe police would fire back at him. Johnson stated that hewas able to avoid getting shot and also to avoid theeffects of the tear gas, because he had been in the militaryand he knew how to protect himself. Johnson told Dr.Chiappone that he was able to keep the police at bayovernight. When Dr. Chiappone asked Johnson why hehad not come out of the house, Johnson replied thatvoodoo was protecting him.

[*P35] Dr. Chiappone testified that, in his opinion,Johnson had a delusional disorder and paranoidschizophrenia, both of which were severe mentalillnesses. Dr. Chiappone based his diagnosis on the factthat Johnson had not had any history of psychiatricproblems prior to 1998 and that he had been rapidlydeteriorating thereafter. Dr. Chiappone also stated thatJohnson had a history of not taking Itis medication andhad also been probated, wl»clt itnplied a markeddeterioration and a need for authorities to be involved inhis life.

[*P36] Dr. Chiappone further testified that, in hisopinion, Johnson did not have the capability to discem[**23] right fromwrong at the time of the chargedoffenses because he had been religiously delusional. Dr.Chiappone based his opinion on Johnson's statetnents,Johnson's medical history, attd ittformation that he hadreceived from collateral sources. Dr. Chiappone opinedthat Johnson was religiously delusional on the night ofthe offenses because he had been religiously delusionalboth prior to and after the charged offenses, and becauseJohnson's behavior on the night of the offensesconformed to a pattem of behavior that had beendocumented by treating sources and statements fromJohnson's family. Dr. Chiappone stated that, in hisopinion, Johnson would have never have committed thecharged offenses if he had not been religiously delusionaland had not felt compelled to commit suicide, Dr.Chiappone testified that, in his opinion, Johnson's

55


noncompliance with his medication only niade hissymptoms more active and florid during the standoff.

[*P37] During cross-examination, Dr. Chiappone,when questioned about Johnson's individual actionsduring the standoff, admitted that Johnson's behavior waslogical. Dr. Chiappone explained, however, thatdelusional peopfe still retained some ability [**24] totake care of themselves, to function, and thus to actlogically. Dr. Chiappone stated that, in his opinion, themere fact that Johnson was able to plan his suicide andcarry out his plan did not mean that Johnson necessarilyunderstood the wrongfulness of his actions.

[*P38] On Februaty 15, 2002, the trial courtconcluded in a written decision that Johnson had failed toprove by a preponderance of the evidence that he was notguilty by reason of insanity. The trial court foundJohnson gttilty on all twenty-eight counts and theaccompanying firearm specifications. That satne day,Johnson entered a plea of no contest to the escape charge.The trial court found him guilty of that offense. Johnsonwas sentenced accordingly.

[*P39] In the first of his three assignments of error,Johnson now argttes that he met his burden of proving thedefense of not guilty by reason of insanity by apreponderance of the evidence and, therefore, that thetrial court's rejection of the defense was against themanifest weight of the evidence.

[*P40] When reviewing the validity of a convictionon the manifest weight of the evidence, we must examinethe entire record, weigh the evidence, [**25] considerthe credibility of the witnesses, and determine whether, inresolving conflicts in the evidence, the trier of fact elearlylost its way and created such a manifest miscarriage ofjustice that Ihe conviction must be reversed. I In State v.

Thompkins, Z the Ohio Supreme Court explained that amanifest "weight of the evidence [claim} concerns theinclination of the greater amount of credible evidence,offered in a trial, to support one side of the issue ratherthan the other. It indicates clearly to the jury that theparty having the burden of proof will be entitled to theirverdict, if, on weighing the evidence in their minds, theyshall find the greater atnount of credible evidencesustains the issue which is to be established before them.Weight is not a question of mathematics, but depends on

its effect in inducing belief." 3

I State v. iNartin (1983), 20 Ohio App.3d I72,

Page 7

175, 20 Ohio B. 215, 485 N.E.2d 717.2 78 Ohio St.3d 380, 387, 1997 Ohio 52, 678N.E.2d 541, citing Blacks Law Dictionary (6Ed.1990) 1594.3 Id.

[**26] [*P41] To succeed on his insanity defense,Johnson had to prove by a preponderance of the evidencethat, as a result of a severe mental disease or defect, hedid not know the wrongfulness of his acts. 4 The OhioSupreme Court has stated that "the weight to be given theevidence and the credibility of the witnesses concerningthe establishment of the defense of insanity in a criminalproceeding are primarily for the trier of fact." 5 Thtts, ifthe record demonstrates that the trial court, as the trier offact, considered the insanity defense, the reviewing courtshotdd defer to the trial court's interpretation of theevidence. 6 Moreover, a reviewing court should onlyreverse a trial court's judgment on the defense of insanitywhere the trial court was presented with overwhelmingand uncontradicted evidence of the defendant's insanity,and where that evidence was arbitrarily ignored. 7

4 See R. C. 2901.05(A) and 2901.01(A)(14).5 State v. Thornas (1982), 70 0/tio St.2d 79, 80,434 N.E.2d 1356, syllabus; see also, State v.Filiaggi, 86 Ohio St.3d 230, 243, 714 N.E.2d 867,1999 Ohio 99.

[`*27]6 See State v. Curey (1989), 45 Ohio St.3d 109,114, 543 N.E.2d 1228.7 See State v. Brown (1983), 5 Ohio St.3d 133,134-135, 5 Ohio B. 266,449 N.E.2d 449.

[*P42] Johnson argues that the trial cottrt's decisionignored the testimony of Dr. Hawkins, Dr. Weaver, andDr. Chiappone. Johnson contends that because all fourexpert witnesses had agreed that he stiffered from aserious mental illness at the time of the charged offenses,and because three of the doctors had opined that he wasinsane at the time of the offenses, the trial court's decisionfinding him sane was against the manifest weight of theevidence. We disagree.

[*P43] In its decision, the trial court acknowledgedthat all four experts had agreed that Johnson wassuffering from a significant mental illness at the time ofthe charged offenses; that Johnson was probably nottaking his medication at some time near the incident; thathe had been showing signs of deterioration in acts andthoughts before the incident occurred; and that he may

56


have been subject to some auditory hallucinations thatwere [**28] not of a command nature. The trial courtfurther stated that Johnson had expressed to each of theseexperts that he was thinking of suicide, but that he wasnot able to take his own life; so Johnson had fashioned aplan to involve the police, which he believed would result

in his death.

[*P44] The trial court then stated that all of theexperts had agreed that, at all times during the incident,Johnson knew where he was, what he was going to do,what he had done in preparation, and who the peoplewere who had surrounded the residence and hadattempted to gain entry. Each had also agreed thatJohnson was fully aware that firing his weapon in thedirection of the police could resttlt in their being hit, andtheir firing back at hitn cotdd have accomplished hisstated goal at the time.

[*P45] The trial court also acknowledged lhat threeof the experts had opined that Johnson was not sane at thetime of charged offenses because (1) Johnson's conductwas delttsional, bizarre, and illogical; (2) Johnson waspsychotic; and (3) Johnson had experienced a completebreak from reality at the time of the offenses. The courtthen stated that while it "had no doubt that the medicalexperts [**29] honestly believed the correctness of theiropinions and [that it] had great respect for each of them, ** *there was no evidence in the record [to] support aconclusion that Johnson was not in touch with reality."

[*P46] The trial court found that Johnson's"conduct demonstrated a clear understanding of who hewas and what he was doing." The court went on to statethat Johnson "was not stmggling; he was not incoherent;and he was not being impulsive."

[*P47] The trial court further stated, "In this case,preponderance does not eqttate with the greater ntttnberof witnesses on the issue. It equates with the reality,sophistication and enormity of the incident. Thedefendant must be held accottntable for his conduct inthis case. His awareness was total, his acts of preparationwere rational, the execution of his plan was intelligent,and his goals were clear and unambigttous. He cannotescape the right of society to Itave his conduct sanctionedfor acting in this illegal manner."

[*P48] Here, the trial court did not ignore thetestimony of Johnson's three experts; rather it chose toaccord more weight to Dr. Tureen's testimony. The trial

Page 8

court acted within its discretion [**30] as the trier of factwhen it chose to believe the testimony and expert opinionof Dr. Tureen that Johnson had fashioned awell-organized plan to involve the police and thatJohnson's actions indicated that he understood thewrongfulness of his conduct. Having reviewed the record,we cannot say that the trial court's decision findingJohnson sane at the time of the offenses was against themanifest weight of the evidence. As a result, we overruleJohnson's first assignment of error.

[*P49] In his second assignment of error, Johnsonargues that the trial court erred by denying his motionsfor a judgment of acquittal on the attempted-murdercounts. Johnson moved for an acquittal after the state'scase-in-chief and after the end of his case. In eachinstance, Johnson, argued that the state had failed toprove that he had knowingly acted with the pttrpose ofcommitting murder.

[*P50] Cri+n.R. 29(A) provides that a trial court"shall order the entry of a judgment of acquittal of one ormore offenses charged in the indictment, * * * if theevidence is insufficient to sustain a conviction of suchoffense or offenses." Our standard for review for thedEnial of a Crinr. R. 29 motion [**31] is the same as thestandard of review for the sufficiency of the evidence. 8To reverse a conviction for insufficient evidence, wemust be persuaded, after viewing all the evidence in thelight most favorable to the prosecution, that no rationaltrier of fact could have found the essential elements of thecrime proven beyond a reasonable doubt. 9

8 State v. Bridgetnan (1978), 55 Ohio St.2d 261,381 N.E.2d 184, syllabus.9 State v. Thanpkins, 78 Ohio St.3d 380, 386,678 N.E.2d 541, 1997 Ohio 52.

[*P51] Johnson was charged with and convicted ofattempted murder under R.C. 2903.02(B). R.C.2923.02(A) provides, "No person, purposely orknowingly, and when purpose or knowledge is sufficientculpability for the commission of an offense, shall engagein conduct that, if successful, would constitute or result inthe offense." The committee notes to the statute providethat "purposely or knowingly attempting [**32] tocommit a crime is sufficient to make the attempt aseparate offense if the crime attempted requiresknowledge, recklessness, or negligence for itscommission.

57


['P52] Johnson was charged with attempted niurder

tinder R.C. 2903.02, which provides, "(B) No person shallcause the death of another as a proximate result of theoffender's committing or attempting to commit an offenseof violence that is a felony of the first or second degree."

[*P53] The Ohio Supreme Court has held that theculpable menial state required to support a convictionunder R.C. 2903.02(B) is the same one that must beproved to stipport a conviction ror the underlying felonyoffense of violence. 10 In this case, the underlying felonyoffense of violence was feloniotts assault. tt Feloniousassault is defined by R.C. 2903.11(A)(2), which statesthat "no person shall knowingly* **cause or attempt tocause physical harm to another * * * by means of adeadly weapon or dangerous ordnance." Felonious assaultis punishable as eitlter a first-degree felony or asecond-degree felony under R.C. 2903.11(D) ( **33] .

10 State v. ,Yfiller, 96 Ohio St.3d 384, 775N.E.2d 498, 2002 Ohio 4931, P31-34.II See R.C. 2901.01(A)(9), which definesfclonious assault as an offense of violence.

[*P54] So in this case, the trial court, as the trier offact, had to determine if the state had proved beyond areasonable doubt that Johnson had attempted toknowingly catis'e serious physical harm to the policeofficers and Reverend Sweet in such a way that it wouldhave proximately resulted in their deaths.

[*P55] Johnson claims that his attempted-murderconvictions should be reversed because the state failed todemonstrate that he intended to harm Reverend Sweet orthe police officers. Johnson argues that because all fourexpert witnesses testified that his sole motivation on thenight of the charged offenses was to commit suicide, andbecause lie nterely fired shots toward the police officers,the state failed to show that he had knowingly acted withthe purpose [**34] ofcommitting murder. We disagree.

["P56] R.C. 2901.22(8) provides that "[a] personacts knowingly, regardless of his ptirpose, when he isaware that his conduct will probably cause a certain resultor will probably be of a certain nature. A person hasknowledge of circumstances when he is aware that suchcircumstances probably exist." (Emphasis added.) Thus,contrary to Johnson's arguments, the state did not have todemonstrate Johnson's intent or purpose in order tosecure his conviction for attempted murder under R.C.2923.02(A).

Page 9

[*P57] Moreover, the trial court could have foundthat the state had proved the essential elements ofattempted murder beyond a reasonable doubt. Dttring thetrial, Johnson stipulated to the underlying facts as setforth in the indictment, as well as to the state's exhibits.The state's exhibits demonstrated that bullets fired fromJohnson's gun were found both in the area of thewalkway where the entry team had attempted to enterJohnson's residence and on the deck located behind theresidence. The state also presented testimony fromOfficer Malone that shots fired by Johnson ricocheted[**35] off the street and struck the embankment abovehis head. Johnson argues, however, that because thestipulated facts indicated that he ottly fired his guntoward the police officers rather than directly at them, hisattempted-murder convictions should be reversed. Wedisagree. Johnson knew when he was firing shots out thewindow that if he hit someone, they would be killed.

[*P58) Given this evidence, the trial court couldhave found that the state had proved beyond a reasonabledoubt that Johnson had attempted to knowingly causeseriotts physical harm to the police officers and ReverendSweet in such a way that it would have proximatelyresulted in their deaths. Because the evidence, whenviewed in the light most favorable to the prosecution, didnot reasonably support an acquittal on theattempted-murder charges, we overnile Johnson's secondassignment of error.

[*P59] In his third assignment of error, Johnsonchallenges the trial court's imposition of the maximumsentence on the escape charge. He contends that tlre trialcourt did not provide adequate reasons for why he posedthe greatest likelihood of committing future crimes.Johnson fitrther argues that the trial court's [**36]finding was not supported by the evidence. We disagree.

[*P60] To impose the maximum prison term, a trialcourt must make one of four findings: (1) that theoffender has committed the worst form of the offense; (2)that the offender poses the greatest likelihood ofrecidivism; (3) that the offender is a repeat violentoffender; or (4) that the offender is a major drug offender.12 In addition, the trial court must give reasonssupporting its itnposition of the maximum prison term. 13

12 See R.C. 2929.14(C).13 See R.C. 2929.19(B)(2)(d); State v.Edmonson, 86 Ohio St.3d 324, 328-329, 715rV.E.2d 131, 1999Ohro 110.

58


[*P61] At the sentencing hearing in this case, the trialcourt orally stated that it had considered the provisions ofR.C. 2929.11 and subsequent sections, thepresentence-investigation report and attached documents,and the medical and clinical reports that had been [**37]prepared before trial, for trial, and for sentencingpurposes. The trial court also acknowledged that Johnsonhad mental issttes that adversely affected him, especiallywhen he stopped taking his medication.

[*P62] The trial court then proceeded to sentenceJohnson for felonious assault and attempted murder. Thetrial court merged the attempted murder and feloniousassault involving Reverend Sweet and imposed themaximum ten-year prison term for attempted murder. Thetrial court also merged the felonious assault andattempted murder of each of the thirteen police officers,and imposed the maximutn ten-year prison term forattempted murder. The trial court then merged each of thetwenty-eight gun specifications into one three-yearsentence. The trial court then ordered the two ten-yearterms and the three-year tenn to be served consecutively,for a total of twenty-three years.

[*P63] On the felony sentencing worksheet, thetrial court stated that it was imposing the maximumsentence because Johnson posed the greatest likelihood ofrecidivism. The trial court noted that Johnson had'jeopardized [a] SWAT team of thirteen police officersand a civilian minister, whom he shot [**38] in the legthrough a car passing the scene." The trial court alsoorally stated that the maximutn sentence was justifiedbecause "the physical harm suffered by the civilian,Reverend Cornell Sweet, and the threat of harm sufferedto the 13 police officers [was] so unusttal that a prison

Page 10

term of less than the maximum is inadequate." The trialcourt further stated that "everything that [Johnson] didduring the nine-hour standoff showed a significantamount of preparation and skill, all of which compoundsthe danger this defendant poses to the community. Thepublic truly needs to be protected fron this type ofconduct."

[*P64] The trial court then orafly stated that it wasalso imposing the maxitnum prison tentt for the escapefor the reasons it had already given. The trial courtfurther stated that "these maximum sentences were beingordered to recognize that a shorter sentence woulddemean the serioasness of this defendant's conduct andwould not adequately protect the public as it is obviousthat unless he is locked up and administered hismedication, he deteriorates quickly and has done so onmore than one occasion. This is a matter in which thecommunity has a right to be protected. [**39] Yourmedical problem is something that the court can havesynipathy with, but the community should not have to beresponsible for being concerned for their safety."

[*P65] Because the trial court followed the felonysentencing guidelines when imposing the maximumsentence, we cannot clearly and convincingly concludethat the record does not support Johnson's sentence forescape, or that the sentence for escape is contrary to law.As a result, we overrule ttre third assignment of error.We, therefore, affirm thejudgment of the trial court.

Judgment affirmed.

SUNDERMANN, P.J., HILDEBRANDT andGORi4IAN, JJ.

59

Page I


STATE OF OHIO, Plaintiff-Appellee, vs. WILLIAM B. USHRY III,D efen dant-App etlan t.

APPEAL NO. C-050740

COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTONCOUNTY

2006 01tfo 6287; 2006 Ohio App. LEXIS 6247

December I, 2006, Date of Judgment Entry on Appeal

NOTICE:

[**I] THESE ARE NOT OFFICIAL

HEADNOTES OR SYLLABI AND ARE NEITHER

APPROVED IN ADVANCE NOR ENDORSED BY

THE COURT. PLEASE REVIEW THE CASE IN FULL

SUBSEQUENT HISTORY: Discretionary appeal not

allowed by State v. Ushry, 2007 Ohio 1722, 2007 Ohio

LEXlS 945 (Ohio, Apr. 18, 2007)

PRIOR HISTORY: Criminal Appeal From: HamiltonCounty Court of Common Pleas. TRIAL NO.B-0404266.

DISPOSITION: Affirmed.

HEADNOTES

INSANITY - COUNSEL

SYLLABUS

The trial court's rejection of the defendant's insanitydefense was not against the manifest weight of theevidence, where both the defense and the prosecutionpresented expert testimony regarding the defendant's stateof mind at the time of the offenses, and where the trialcourt's conclusion that the defendant was sane resultedfrom its decision to accord more weight to theprosecution's expert witnesses.

suppress the defendant's statements to the police, butinstead sought to rely on those statetnents to support aninsanity defense.

COUNSEL: Joseph T. Deters, Hamilton CountyProsecuting Attorney, and Paula Adams, AssistantProsectiting Attorney, for Plaintiff-Appellee.

Bemadette M. Longano, for Defendant-Appellant.

JUDGES; SUNDERMANN, Judge. GORMAN, P.J.,and HENDON, J., concur.

OPINION BY: SUNDERNIANN

OPINION

DEC/SION.

SUNDERMANN, Judge.

[**2] [*PI] Defendant-appellant William B.Ushry III appeals from the judgment of the HamiltonCounty Court of Common Pleas convicting him ofmurder and aggravated burglary. Ushry raises threeassignments of error for ottr review in which he contends(t) that the evidence at trial supported a finding of notguilty by reason of insanity; (2) that he was denied theeffective assistance of counsel; and (3) that misconductby the assistant prosecutor denied him a fair trial.Because we find none of the assignments meritorious, weaffirm the judgment of the trial court.

Defense counsel was not ineffective when, as amatter of trial strategy, he did not file a motion to

1. Factual and Procedural Posture

["P2] Ushry was a good friend of Antonio Hill and

60

2006 Olrio 6287, *P2; 2006 Ohio App. LEXIS 6247, **2

often visited Hill and his girlfriend, Alexis Noms, at theirapartment on Winneste Avenue. On April 25, 2004,Ushry came over to their apartment in the early afternoonand stayed for approximately thirty minutes. Later thatafternoon, as Antonio and Alexis were getting ready toleave for dinner at his aunt's home, Ushry remrned with ajewelry box. He told Antonio and Alexis that he neededto pawn the jewelry for rent money. Antonio looked atthe jewelry with Ushry for approximately ten minutes.Ushry then left with ttte jewelry [**3] box.

[*P3] Sometime between 4 and 5 p.m., IrisStevenson picked up her cousin Antonio, Alexis, and hersister Natalie to take them to dinner at her mother'shouse. Natalie lived in the same apartment complex asAntonio and Alexis. After dinner, Iris and her sisterChristina drove Natalie, Antonio, and Alexis Itome. Itwas dark outside when Iris dropped everyone off in theparking lot behind their apartments. Iris and Christinawaited in the van while everyone went to their

apartments.

[*P4] As Antonio and Alexis were walking to theirapartment, they noticed that the kitchen liglrt had beentumed on and that a window by the back door had beenbroken. But before they could enter the apartment, Ushrycame running out the back door and started askingAntonio where his ring was located. Antonio, sensing thatUshry wanted to fight, ran to Natalie's apartment to avoida confrontation. Iris watched from the van as Ushrychased Antonio. When Antonio had niade it safely insideNatalie's apartment, he called for emergency assistance.

[*P5] In the meantime, Ushry had ntn back towhere Alexis was standing. Alexis shmgged hershoulders and pulled on her clothes, indicating that [**4]she did not have anything. Ushry then stabbed her in theneck with a knife. Iris and Antonio watched as Ushrystabbed Alexis several inore times. Iris started blowingthe horn and screaming, while Christina dialed thenumber for einergency assistance.

[*P6] Ushry then ran back towards Natalie'sapartment. Alexis walked to the front of the van and fellto the ground. When Ushry could not get inside Natalie'sapartment, he ran back to Alexis, stood over her, andbegan stabbing her again. Iris started blowing the hom.Ushry looked up at her, flinched, and moved towards her.When Iris threw her hands up in the air, Ushry returned tostabbing Alexis. He then ran inside the back door ofAlexis and Antonio's apartment and disappeared.

Page 2

[*P7] After Ushry had left, Alexis managed to getup off the ground. She staggered toward the van. Whenshe had made it to the van, she told Iris that she had beenstabbed. Once Alexis was inside the van, Iris drove to thefront of the apartment building. She honked the horn andyelled for Natalie and Antonio. After they got into the

van, Iris started driving towards the nearest hospital. Asshe mrned onto Winton Road, Iris saw police cars, a fire[**5] truck, and an ambulance. She stopped the van andsignaled to tltem for help. The paramedics tried to helpAlexis, who was lying on the back seat of the van, bttt herstab wounds were too extensive. She died at the scene.Wlten the police officers questioned Antonio, Natalie,Christina, and Iris about the stabbing, Antonio identified

Ushry as the assailant.

[*P8] In the meantime, several police officers hadresponded to the apartment complex where Alexis hadbeen stabbed. They found several drops of blood on thepavement, as well as Alexis's hooded sweatshirt, herpurse, and her keys. Alexis's sweatshirt had a large holeand blood stains on it. Ushry's fingetprints were fottnd ona broken window near the back door of Antonio andAlexis's apartment. Photographs taken of the inside oftheir apartment showed that it had been completelyransacked. Drawers had been pulled out of dressers,clothes had been thrown arottnd, and beds had beenoverntrned.

[*P9] Around thc same time, Ushry's father hadcontacted the police. He told them that Ushry had hurtsomeone and asked that they respond to his home. Whenthe police arrived, he gave them a knife that Ushry hadbeen carrying. Ushry was [**6] arrested, read hishftranda rights, and transported to police headquarters.

[*P10] After answering some preliminary questionsand signing a written waiver of his Miranda rights, Ushrywas questioned by two police detectives forapproximately 25 minutes about Alexis's murder. Ushryspoke with them for ten to twelve minutes beforeagreeing to have his stateinent tape-recorded. Ushry toldpolice that he had gone to Antonio and Alexis's apartmentearlier that afternoon to get his hair braided. While hewas there, Ushry had told Antonio and Alexis that hisapartment had been broken into, that his rent money hadbeen stolen, and that he needed money to pay his rent.They had then become so involved in ta[king about hisrent money that Alexis did not end ttp braiding his hair.

[*PII] After their conversation, Ushry left and

61


went to his parents' home. He retumed to Antonio andAlexis's apartment later that afternoon with a jewelry boxthat he had stolen from his mother. He was hoping topawn some of the jewelry for rent money. He andAntonio had looked at the jewelry while they smokedsome marijuana. Antonio was interested in one particularring, but he decided not to buy [**7] it. He and Antoniothen put the jewelry back in the box, and they all three

left the apartment.

[*P12] Usltry told police that when he got back tohis apartment, he noticed that the ring Antonio had beenlooking at was missing. He became upset because theonly place he had removed the jewelry from the box wasat Antonio and Alexis's apartment. So he concluded thatthey must have stolen the ring from him. He decided togo back to their apartment to confront them. If theyreturned the ring to him, everything would have beenforgiven, btit if they did not rehtrn the ring, he was goingto take back the ring any way that he possibly could.When he got to their apartment, no one was there, so hewaited outside for a while, but he eventually left.

[*P13] At approximately 9:20 p.m., he came backto the apartment and discovered that they had still notretumed, so he broke a window near the back door andclimbed inside to look for the ring. When he could notfind the ring, Ushry told police, he started taking thingsin the apartment to compensate hini for the value of thestolen ring. When Antonio and Alexis rentrned, he ranottt of the apartment and confronted them about the ring.[**8] They denied having the ring. He started chasingthem, and when he caught up with Alexis, he did what hehad to do.

[*Pl4] Ushry's taped interview proceeded just asthe oral one, until he was questioned directly about thestabbing. At that point, Ushry started talking aboutcameras in his apartment and people touching hisgenitalia. Shortly thereafter, the police concluded theinterview. Ushry was photographed, and his clothes werecollected for testing. Laboratory analysis showed that theblood on the knife, the blood on the hooded sweatshirt,and the blood on Ushry's clothing belonged to Alexis.

[*P15] When the police examined Ushry's car, theyfound dried blood stains on the steering wheel, on thedriver's side door and seat belt, and on an envelope in thefront seat. They also found several items that belonged toAntonio and Alexis in the car, including DVDs, a DVDplayer, a Play Station, Play Station games, a television,

and a stereo.

Page 3

[*PI6] An autopsy revealed that Alexis had beenstabbed eleven times. She had two wounds on her neck,one of which had cut her jugular vein; three wounds tothe chest, with two of the wounds going through her lungand one of the [**9] wounds going through her heart;three wounds on her upper back; and three wounds on herupper arm. A deputy coroner conclttded that Alexis haddied from injuries to her heart and lungs caused by thestab wounds.

[*P17] Ushry was subsequently indicted for twocounts of aggravated murder in violation of R.C.1903.01(A) and 2903.01(B) (counts one and two), onecount of murder in violation of R.C. 2903.02(B) (countthree), and two counts of aggravated burglary in violationof R.C 2911.11(A)(1) and 2911.11(A)(2) (counts fourand five). He entered a plea of not guilty by reason ofinsanity and asked the trial court to evaluate hiscompetency to stand trial. On June 30, 2004, the trialcourt found Ushry incompetent to stand trial and sent himto the Twin Valley Behavioral Healthcare Facility fortreatment.

[*P18] After five months of treatment, Ushry wasfound competent to stand trial. He was then transportedback to the Hamilton County Justice Center, where Dr.Carla Dryer, a clinical psychologist, Dr. James Hawkins,a general and forensic psychiatrist, [**10] and Dr.Melvin Nizny, also a general and forensic psychiatrist,examined him to determine his sanity at the time of theoffenses. While all three experts agreed that Ushry wassuffering from paranoid schizophrenia at the time of theoffenses, Drs. Dreyer and Hawkins concluded thatUshry's mental illness Itad not prevented hitn fromunderstanding the wrongfulness of his acts.

[*P]9] On August 8, 2005, Ushry waived his rightto a jury, and his case proceeded to trial before the court.The trial court found Ushry guilty of the lesser-includedoffense of murder in cottnt one and of aggravatedburglary as charged in count five. The trial courtacquitted him of the remaining offenses. The trial courtsentenced Ushry to 15 years to life for the murder and tothree years for the aggravated burglary, and it ordered thesentences to be served concurrently.

11. Not Guilty by Reason of Insanity

[*P20] In his first assignment of error, Ushry

62

2006 Ohio 6287, *P20; 2006 Ohio App. LEXIS 6247, **10Page 4

contends that he proved by a preponderance of the called the pofice. Ushry then began talking about peopleevidence that he was not guilty by reason of insanity, and watching him [** 13] and touching his genitalia. By thethat the trial court's rejection of his defense was against time the police arrived, Ushry was almost comatose.the manifest weight of the evidence.

[*P21] "To succeed on his insanity [**1 l] defense,[Ushry] had to prove by a preponderance of the evidencethat, as a result of a several mental disease or defect, hedid not know the wrongfulness of his acts. [Citationsomitted.] The Ohio Supreme Court has stated tltat 'theweight to be given the evidence and the credibility of thewitnesses conceming the establishment of the defense ofinsanity in a criminal proceeding are primarily for thetrier of fact.' [Citations omitted.] Thus, if the recorddemonstrates that the trial court, as the trier of fact,considered the insanity defense, the reviewing courtshould defer to the trial court's interpretation of theevidence. (Citations omitted.] Moreover, a reviewingcourt should only reverse a trial court's judgment on thedefense of insanity where the trial court was presentedwith overwhelming and uncontradicted evidence of the

[*P24] Dr. Nizny testified that he examined Ushryfor eight and a half hours on March 7, April 3, and May2, 2005. Dr. Nizny testified that Ushry had beenpsychiatrically hospitalized for paranoid schizophrenia inApril 2003, and that he had been par[icipating in arandom drug study at University Hospital, but that he hadnot been consistent in taking his medication, Dr. Niznytestified that Ushry had also been abusing dntgs andalcohol at the time of the offenses.

[*P25] Dr. Nizny testified that Ushry had a historyof delusions and hallucinations, which included Ushry'sbelief that others were sexually involved with him andthat he was to do or not to do things based on the voicesthat he was hearing. Ushry told Dr. Nizny that he hadbeen hearing four voices, t[iree of which were famousfemale singers, and that these voices would command

-d-eTe-n ants tnsantty, and`wliere`ftya`fèvtettCE-uas-"--hrm-to-do-things.-Ushcy-told.Dr_Nizn.}-that.these_v.oices_--_arbitrarily ignored." I had told him to go to Antonio and Alexis's apartment, to

I State v. Johnson, !s•t Dist. Nos. C-020256 andC-020257, 2003 Ohio 3665, at P41; see, also,State v. Honnaker, 1st Dist. No. C-040684, 2006Ohio 1374, at P5.

[** 12] [*P22] At trial, Ushry presented testimonyfrom his parents and Dr. Nizny. Ushry's parents testifiedthat he had been acting strangely and experiencingpsychiatric difficulties in the months preceding theoffenses. They testified that Ushry came to stay withthem several days prior to the offenses because he wasseeing shadows and hearing voices in his apartment. Onthe day of the offenses, Ushry was quite agitated andparanoid. He told his parents that someone had stolen hisrent money and asked if they would give him money forhis rent. When they told him they had no money to givehim, he became more agitated. When Ushry's father wentupstairs to check on him, Ushry was staring at thetelevision, which was turned off, and was talking to it.Shortly thereafter, Ushry left the house.

[*P23] After Ushry had feft, his parents discoveredthat he had taken a jewelry box and a knife from theirbedroom. When Ushry returned to their home later thatnight, he seemed to be in another world. He was veryagitated. He was holding the knife in his hand. He toldthem that he might have hurt someone. Ushry's father

break in, and to kill Alexis. Dr, Ntzny testt6ed thatcollateral contact with Ushry's parents confirmed thatUshry had been experiencing [**14] delusions andhallucinations immediately before and after the offenses.

[*P26] Dr. Nizny testified that Ushry had beenoperating under the delusional belief that someone hadbroken into his apartment and stolen his rent money, andthat he was responding to command hallucinations whenhe broke into Antonio and Alexis's apartment, took theirproperty, and stabbed Alexis. Dr. Nizny believed thatUshry's statements to his parents and his statements to thepolice immediately after tlte offenses, as well as hisstatements to the mental-health staff at the HamiltonCounty Justice Center, supported his conclusion thatUshry was actively psychotic during the offenses andwas, therefore, unable to understand the wrongfulness ofhis actions.

(*P27] To rebut the testimony.of Ushry's parentsand Dr. Nizny, the state called Drs. Dreyer and Hawkins.Dr. Dreyer testified that she examined Ushry in June2004 and found him incompetent to stand trial. Dr.Dreyer testified that, during the competency examination,Ushry was given a Stmcture Interview ReportedSymptoms Test or "SIRS" test, and that five out of theeight primary scales indicated that Ushry wasmalingering.

63


[*P28] Dr. Dreyer (**15] testified that sheexamined Ushry in December 2004 for purposes ofdetermining his mental state at the time of the offenses.Ushry told Dr. Dreyer that prior to the offenses he wasexperiencing a great deal of paranoia and hallucinations.Ushry stated that he had lost his rent money, that he hadstolen some jewelry from his parents' home, and that hehad then taken the jewelry to Antonio's apartment, whereAntonio had looked at the jewelry with him. When he gotback to his apartment, Ushry looked through the jewelry,but could not find the ring that Antonio had looked at, sohe "got mad." Ushry told Dr. Dreyer that he believed hisradio was giving him sttbliminal ntessages. Shortlythereafter, he went to Antonio's apartment to get the ring

back.

[*P29] Ushry told Dr. Dreyer that he waited outsideAntonio and Alexis's apartment for half an hour, beforebreaking a window and going inside. Once he was insidethe apartment, Ushry told her, he started taking items andputting thent in his car. When Antonio and Alexisreturned home, he ran outside and confronted them aboutthe ring. Antonio told Ushry that he did not know wherethe ring was located. Ushry stated that Antonio thenbegan [**16] to run away from hitn becatise he washolding a knife in his hand. When Ushry could not catchAntonio, he ran back to where Alexis was standing. Heasked her where the ring was located, but she began to

rttn away from him as well.

(*P30] Ushry recalled grabbing Alexis's clothing,ripping it, and then stabbing Alexis in the neck, back, andchest. Ushry stated that when Alexis fell to the ground,Antonio was yelling, "You got it cotning," so Ushrystarted chasing after Antonio again. Usltry told Dr.Dreyer that he lost his temper and went back to Alexisand started stabbing her again. Ushry stated that he hadintended to harm Alexis and that he understood that thiswas wrong, but that he felt that he needed to do it due tohis level of anger.

[*P31] Usbry told Dr. Dreyer that he had left thescene and went to his parents' home because Alexis'srelatives lived in the neighborhood and he was concemedthat they tnight retaliate against him. Ushry stated that hewas able to cool down when he was driving to hisparents' home. As he did so, he began to feel bad aboutwhat he had done. When he arrived home, he told hisparents that he had hurt someone.

Page 5

behavior on the night of offenses was consistent with hisstated motive, which was to retaliate against Antonio andAlexis, and that his behavior was the result of poorimpulse control brought on by his mental illness. Sheacknowledged that Ushry had been experiencing activesymptoms of psychosis preceding, during, and after thetime of the alleged offenses. She also acknowledged thatUshry's marijuana use on the day of the offenses hadprobably made his mental illness more active and florid.

[*P33] In her opinion, however, Ushry's actions andstatements immediately following the incidentdemonstrated that he understood the wrongfulness of hisactions. Dr. Dreyer admitted that Ushry had reportedexperiencing delusions and hallucinations before andafler the offenses, but testified that he had nevermentioned experiencing the command hallucinations thathe had reported to Dr. Hawkins and Dr. Nizny. Thus, Dr.Dreyer concluded that while Ushry's mental illness hadimpaired his judgment on the day of the offenses, he hadstill been able to comprehend the wrongfulness of hisactions. Thus, she conclttded that Ushry did not meet thestrict criteria for an insanity defense.

[**18] [*P34] Dr. Hawkins testified that he hadinterviewed Ushry in February 2005 for an hour and ahalf. Ushry told Dr. Hawkins that he Itad taken somejewelry from his inother because he could not find hismoney order and that he was planning to pawn thejewelry for rent money. Ushry also told Dr. Hawkins thathe remetnbered being outside Antonio and Alexis'sapartment when the voices told him to go in. Ushry thenstated that he got lightheaded. The next thing heremembered was being in the interrogation roo n andtalking on the tape recorder.

[*P35] Dr. Hawkins testified that Ushry's repotts ofexperiencing command hallucinations at the time of theoffenses had not been documented in his medical recordsor in previous examinations, and that Ushry's descriptionof these command hallttcinations was atypical. Dr.Hawkins further testified that the fact that Ushry hadbeen administered the SIRS test in June 2004, whichshowed that he was potentially malingering in five of theeight scales, was a "pretty good suggestion" that Ushryhad been exaggerating his symptoms, if not outright lyingabout them. Dr. Hawkins concluded that while Ushry hada history of experiencing delusions, there [**19] wassimply no evidence that Ushry had experienced thecommand hallucinations that he had reported. Thus, Dr.

[*P32] Dr. Dreyer testified [**17] that Ushry's


Hawkins believed that Ushry was exaggerating thissymptom of his mental illness, if not totally malingering.

[*P36] Dr. Hawkins acknowledged that Ushry'sschizophrenia was probably more active and florid on theday of the offenses becatise he had not taken hisantipsychotic medication and because he had smokedmarijuana. In concluding that Ushry understood thewrongfulness of his actions on the night of the offenses,Dr. Hawkins focused on Ushry's behavior. He testifiedthat Ushry was out of work, he needed money, and hewas going to pawn his niother's jewelry to pay his rent.He made a direct effort to do this with Antonio andAlexis. When he discovered that the ring was tnissing, hewent back to collect it. Thus, Dr. Hawkins testified,Usltry's actions were not based on delusions, but onreality.

[*P37] Dr. Hawkins testified that, afler collectingsonie of Antonio and Alexis's property and hatniingAlexis, Ushry then fled from the scene and went to hisparents' home. When he got to their home, he told themthat he had done something wrong so that they coald helphim. [**20] Tltus, Ushry's actions were not the result ofany command or delusion, but were volitional. Dr.Hawkins stated that Ushry's subsequent flight from thescene, along with his statements to his father that hemight have hurt someone, showed that he was aware ofIhe wrongfulness of his conduct.

[*P38] Because there was a conflict of opinionabout Ushry's mental state, the trial court, as the trier offact, had the responsibility to weigh the credibility of theexpert witnesses. The trial court chose to rely on theexpert opinions of Drs. Dreyer and Hawkins, instead ofthe opinion of Dr. Nizny, in conclttdittg that Ushtyunderstood the wrongfulness of his actions on the nightof the offenses. Because the record supports the trialcoutt's conclusion, we cannot say that its decision findingUshry sane at the time of the offenses was against themanifest weight of the evidence. As a result, we overrulehis first assignment of error.

III. Ineffective Assistance of Counsel

[*P39] In his second assignment of error, Ushryargues that he was denied the effective assistance ofcounsel. To prevail on his claim, Ushry "must show thathis counsel's representation fell below an objective[**21] standard of reasonableness" 2 and that he wasprejudiced by counsel's deficient performance. 3

Page 6

Prejudice is established by a showing "that there is areasonable probability that, but for the errors, the result ofthe proceeding would have been different. A reasonableprobability is a probability sufficient to undermine theconfidence in the outcome." 4 Both prongs must be metto demonstrate ineffective assistance of counsel. 5Moreover, "it is presumed that a properly licensedattorney is competent and ineffective assistance cannot bebased on debatable tactical decisions." 6

2 See Strickland v. Washington (1984), 466 U.S.668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674.3 See id. at 687.4 See id at 694.5 See id. at 697.6 State v. Bond (Oct. 29, 1999), Ist Dist. No.C-990195, I999Ohio App. LEXIS 5045.

[*P40] Ushty claims that he was denied theeffective assistance of counsel becatise his counsel failedto file a niotion to sttppress his oral and [**22] tapedstatements to police; because he failed to presentevidence of his ongoi»g mental illness, including hisdischarge records frotn the military and his medicalrecords from an antipsychotic drug study at UniversityHospital; and because he admitted during closingarguinent that Ushry had purposeftdly killed Alexis.

[*P41] Defense counsel's failure to seek thesuppression of Ushry's statements to the police could beviewed as trial strategy. Ushry's statements to the policeabotit cameras in his apartment and people manipulatinghis genitalia several hours after Alexis's stabbing stronglysupported his argument that he was so mentally impairedon the night of the mttrder that he cotdd not havettnderstood the wrongfulness of his actions. Ushry's ownexpert witness, Dr. Nizny, relied on Ushry's statements topolice when fonnulating his opinion that Usltry was somentally impaired on the night of the offenses that hecould not understand the wrongfdness of his actions.And even if defense counsel had been able tosuccessfully suppress his statements, the state hadsubstantial eyewitness testimony and forensic evidenceagainst him. Thus, Ushry has not demonstrated how hiscounsel's [**23] failure to pursue the motion to suppressprejudiced him.

[*P42] With respect to Ushry's claim that hiscounsel should have presented more evidence regardinghis mental illness, the record reveals that defense counselprovided the expert witnesses with some of Ushry's


inedical records from the military and the records fromthe drug smdy at University Hospital. Dr. Dreyeradditionally testified that she had independently obtainedsome of Ushry's n ilitary records, which defense counselexamined during his recross-examination of Dr. Dreyer attrial. While these medical records helped to form thebasis of the expert witnesses' opinions, they were notseparately entered into evidence, but merely summarizedin their respective reports. Thus, we have no way ofindependently knowing what any of these records

contained.

[*P43] Ftuthermore, whether defense counsel'sprodttction of additional records andlor testimonyregarding Ushry's mental illness wottld have aided Itisaffirmative defense is pttrely speculative, since this courthas no way of knowing what, if anything, would havebeen discovered if the records or the testimony had beenpursued. Because Ushry cannot establish prejudice[**24] in the absence of this information, we cannotconclude in his direct appeal that defense counselrendered ineffective assistance. Ushry's claim is inoresuitable to postconviction relief, where this additionalevidence could be presented.

[*P44] Finally, Ushry contends that defense counselrendered ineffective assistance when he stated duringclosing argument that he "would have difficulty arguingthat there wasn't a purposeful homicide in this case."Defense counsel further stated that "because of thecoroner's testimony and the number of wounds that wereinflicted, it's easy to conclude that there was a purposefulkilling." Ushry contends that defense counsel's admissionwas extremely prejudicial because it relieved the state ofits burden to prove him guilty beyond a reasonable doubtof one of the elements of aggravated murder as chargedin count one.

[*P45] During closing argument, defense counselargued that while he would have difficulty arguing thatUshry had not committed a purposeful homicide, theevidence simply did not support the state's argument thatUshry had acted with prior calculation and design, giventhe expert testimony about his mental state at the time[**25] of the offenses. Defense counsel's strategy wasultimately successful, as the trial court did not find Ushryguilty of aggravated murder with prior calculation anddesign as charged in count one, but guilty of thelesser-included offense of mttrder. Thus, we fail to seehow defense counsel's comments prejudiced Ushry.

Page 7

Because Ushry has failed to demonstrate that the actionsor inactions of defense counsel were ineffective, weoverrule his second assignment of error.

IV. Prosecutorial Misconduct

["P46] In his third assignment of error, Ushryclaims that three separate cotnments made by theassistant prosecutor during the rebuttal portion of closingargument denied him a fair trial. Ushry argues that theprosecuting attomey improperly bolstered the credibilityof the state's witnesses and damaged the credibility of hisexpert witness when he referred to his expert witness asthe "infamous Dr. Nizny," while characterizing the state'sexpert witnesses as "well respected." Next, Ushry arguesthat the assistant prosecutor improperly characterized hisstatements to his father immediately following thestabbing and made hearsay statements regarding a 911tape that was not in evidence. [**26] Finally, Ushrymaintains that the assistant prosecutor erroneouslycommented that Dr. Dreyer's testimony regarding theSIRS test provided clear evidence that he wasexaggerating his mental illness.

[*P47] The test for prosecutorial misconduct iswhether the prosecutor's remarks were improper, and ifso, whether they prejudicially affected the defendant'ssubstantial rights. 7 Considerable latitade is generallyafforded to the prosectttor in presenting closingargutnents. $ The prosecutor's closing argument must bereviewed in its entirety to determine if the remarks wereprejudicial. 9 Because Ushry did not object to the last tworemarks, we must review the alleged ntisconduct for plainerror. Thus, we must be convinced that Ushry would nothave beetZ convicted but for the alleged misconduet inorder to reverse his conviction. 1e Moreover, "(i]n abench trial, the trial court is presumed to rely only onrelevant, ntaterial evidence in arriving at its conclusion."11

7 State v. Smith (1984), 14 Ohio St.3d 13, 14, 14Ohio B. 317, 470 N. E.2d 883.8 !rL at 13.9 State v. Rahman (1986), 23 Ohio St.3d 146,154, 23 Ohio B. 315, 492 tV. E.2d 401.

(*'27]10 State v. Marrell, /st Dist. No. C-020333,2003 Ohio 2068, P2.l I State v. Lane (1995), 108 Ohio App.3d 477,484, 671 N.E.2d 272.

2006 Ohio 6287, *P47; 2006 Ohio App.LEXIS 6247,*`27

[*P48] We have reviewed the state's closing argumentin its entirety, and we can find nothing to indicate that thetrial court was influenced by the eomments of theassistant prosecutor in arriving at its findings of guilt.We, therefore, overrule Ushry's third assignment of error.Having found no merit to Ushry's three assignments of

error, we affirm the judgment of the trial cottrt.

Judgment affirmed.

GORN[AV, P.J., and HENDON, J., concur.

Page 8

Page I


State of Ohio ex rel. Certified Oil Corporation, Relator, Y. William Mabe,Administrator, Ohio Bureau of Workers' Compensation, Industrial Conimission of

Ohio, and Javine A. Artis, Respondents.

No. 06AP-835



July 31, 2007, Rendered

SUBSEQUENT HISTORY. Application granted by,Cause dismissed by State ex rel. Cettifted Oil Corp. v.

Ryan, 2008 Ohio 2019, 2008 Ohio LEXIS 1186 (Ohio,

Apr. 30, 2008)

DISPOSITION: [" I] Objections sustained; writ ofmandamus granted.

cominenced this original action requesting that this courtissue a writ of mandamus ordering respondent, IndustrialCommission of Ohio ("commission"), to vacate thatportion of its order awarding temporary total disability("TTD") compensation to respondent, Javine A. Artis("claimant"), from January 21 through August 31, 2005,and to enter an amended order denying TTDcompensation for that period.

COUNSEL: Roetzel & Andress LPA, Douglas E.

Spiker, Brian A. Tarian, and Ryan E. Bonina, for relator.

Marc Dann, Attorney General, and Sandra E. Pinkerton,for respondent Industrial Commission of Ohio.

Philip J. Fulton Law Office, and William A. Thonnan,III, for respondent Javine A. Artis.

JUDGES: SADLER, P.J. KLATT and FRENCH, JJ.,concur.

OPINION BY: SADLER

OPINION

(REGULAR CALENDAR)

DECISION

ON OBJECTIONS TO THE MAGISTRATE'SDECISION IN MANDAMUS

SADLER, P.J.

[*Pl] Relator, Certified Oil Corporation ("relator"),

[*P2] Pursuant to Civ.R. 53 and Loc.R, 12(M) ofthe Tenth Appellate District, this matter was referred to amagistrate who issued a decision including findings offact and conclusions of law. (Attached as Appendix A.)Therein, the magistrate concluded that the commissiondid not abuse [**2] its discretion and that this courtshould deny the requested writ. Relator filed objections tothe magistrate's decision, and the commission and theclaimant filed memoranda in opposition to thoseobjections. This cattse is now before the court for a fulland independent review.

["P3] The basis for relators argument that thecommission abnsed its discretion is its contention that Dr.Lowrey's July 5, 2005 C-84 does not constiatte "someevidence." In that C-84, the doctor opined that theclaimant had not reached maximum medicalimprovement ("MMI"). But in his January 21, 2005report and his May 27, 2005 office notes, the doctorindicated that he believed that the claimant had reachedMMi. Relator maintains that, because the May officenotes and the July C-84 were based upon the samephysical examination and are contradictory with respectto MMI, the C-84 is equivocal and does not constitutesome evidence upon which the commission may rely.

2007 Ohio 3877, *P3; 2007 Ohio App. LEXiS 3510, **2

[*P4] "In general, the court does not'second guess'medical opinions from medical experts and will remove amedical opinion f?om evidentiary consideration as havingno value only when the report is patently illogical orcontradictory ***." [**3] State ex rel. Tharp v. Consol.

;L/eta[ Prods., Franklin App. tVo. 03AP-124, 2003 Ohio

6355. P67. Moreover, it is well established that issues ofweight and credibility of evidence lie outside the scope of

mandamtts inquiry. State ex rel. Burley v. Coil Packing,Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d936. The commission, as the finder of fact, has exclusiveauthority to determine the persuasiveness of evidence.State e.r rel. Teece v. lndus. Comm. (1981), 68 Ohio St.2d

165, 429 N.E.2d 433; State ex ret. Bell v. Gtdus. Comm.

(1995), 72 Ohio St3d 575. 1995 Ohio 121, 651 N.E.2d

989.

[*P5] However, equivocal nredical opinions are not

evidence. State es rel. Eberlra•dt v. FLeible Corp. (1994),70 Ohio St. 3d 649, 657, 640 N. E.2d 815. "* **[E]quivocation occurs when a doctor repudiates an earlieropinion, renders contradictory or uncertain opinions, orfails to clarify an ambigttotts statement. Ambiguousstatements, however, are considered eqttivocal only whilethey are unclarified. * * * Repudiated, contradictory orttncertain statements reveal that the doctor is not surewhat he nreans and, therefore, they are inherentlyunreliable."

[*P6] In its first objection, relator argues that theC-84 is not some evidence by virtue of the [**4] fact thatit is inconsistent with Dr. Lowrey's May 2005examination notes. For support of this proposition, it citesthe case of State ee rel. Genuine Parts Co. v. hrdas.

Cotmn., 160 Ohio App.3d 99, 2005 Ohio 1447, 823N.E.2d 1198.

[*P7] In Gennine Parts, the treating physician'sC-84 was not some evidence because it stated that theperiod of disability was caused by the allowed conditionof lumbosacral sprain, but his office notes from the lastexamination indicated that the only condition he observedat that time was an L5-S 1 disc bulge, a condition that wasnot allowed in the claim. Thus, the C-84 certified that theperiod of disability was caused by one condition, whilethe examination revealed the cause of the disability was awholly different and, significanfly, non-allowedcondition.

(`P8] The magistrate acknowledged the factualsimilarities berween Genrtine Parls and the present case,

Page 2

but concluded that Genuine Parts does not compel theelimination of Dr. Lowrey's C-84 from evidentiaryconsideration because, in denying the claimant'spermanent total disability application, the commissionrejected Dr. Lowrey's cartier opinion that the claimanthad reached MMI.

[*P9] We agree with relator's contention [**5] thatGenrtine Parts is applicable to this case. Just as inGenuine Parts, the C-84 conflicts with the treatingphysician's notes from the last examination. Contrary tothe claimant's argument in her memorandum contra, itmatters not that the conflicting portion of Dr. Lowrey'snotes expresses an opinion as to MMI, rather than, as inGenaine Parts, the presence of certain conditions. Dr.Lowrey's C-84 is inexplicably contradictory to his officenotes from the examination upon which the C-84 isbased. Thus, tinder Gennine Parts, the C-84 is not someevidence upon which the commission may rely.

[*P10] We further note that when an expert renderscontradictory opinions with no explanation as to thereason and rationale for the change of opinion, then thecontradictory opinions are not evidence upon which thecommission may rely. See, e.g., State ex rel. tYl. Weingold& Co. v. (ndus. Comm., 97 Ohio St.3d 44, 2002 Ohio5353, 776 N.E.2d 69 (C-84 not "some evidence" when itpremised the period of disability upon conditionsaffecting the Ittmbar and thoracic areas of the spine, whenan earlier C-84 from the same examination cited onlyconditions affecting the cervical spine as contributing tothe period [**6] of disability); State ex re[. Lopez v.Indes. Comm. (1994), 69 Ohio St.3d 445, 449, 1994 Ohio458, 633 NE.2d 528 ("normal" physical findings inoffice notes contradicted physician's assessment of a"high degree" of impairment); State ex reL Paragon v.Indus. Comm. (1983), 5 Ohio St.3d 72, 5 OBR 127, 448N.E.2d 1372 (physician alternately opined that theclaimant could work and could not work); State es rel.Columbia-Csa/Hs Greater Canrori Area Sys. v. Inclns.Comtn.. Franklin App. No. 02AP-703, 2003 Ohio 2189(physician stated that the physical examination wasunreliable due to mtdtiple symptom magnificationbehaviors, and also opined that, based upon that sameexamination, the claimant could not return to work);Stanforth v. Washington Distrib. (1983), Franklin App.tVo. 82AP-932, 1983 Ohio App. LEXIS 15660 (C-84contradicted two earlier reports in which the samephysician opined that the claimant was not totallydisabled and could return to work within the relevant


time frame); State ex rel. Goodyear Tire & Rubber Co. v.

,4laccioli, Franklin App. Na. 02AP-61, 2002 Ohio 4497(physician's report stating claimant was incapable ofsustained remunerative employment contradicted reportgiven 14 days earlier in which the same physician [**71assessed only a 25 percent permanent partial

impairment).

(*Pll] Though this court has at least oncedetermined that a physician sufficiently explained hischange in opinion on a critical issue, tthe record in thiscase contains no such explanation from Dr. Lowrey.

I See, e.g., State ex ret. Tharp v. CoruoL Metal

Prods., Franklin App. No. 03AP-124, 2003 Ohio

6355.

[*P12] For the foregoing reasons, relator's first

objection is sustained.

[*P13] In its second objection, relator argues thatthe magistrate erred in relying upon the case of State exrel. Kinnear Div., Harsco Corp. v. lndns. Convn. (1997),

77 Ohio St.3d 258. 1997 Ohio 40, 673 N.E.2d 1290. The

claimant responds by pointing out that the magistratecharacterized Kinnear as merely "insttvctive." 2Nonetheless, relator argues that the equivocation

accepted in Kinnear- was borne out of proceduralnecessity and was litnited to circumstances arising underthe "Eaton docket" developed in response to the case ofState ex rel. Eatan Corp. v. Lancaster (1988), 40 OhioSt.3ct 404, 534 N.E•.2d 46.

2 Magistmte's Decision, infra, at P51.

[*P]4] We agree. Kinnear does not support themagistrate's proposition that "[p]ractical considerationscan be dispositive in determining whether a[**8] facialconflict in the medical evidence submitted by a physicianshould be viewed as fatal to its evidentiary viability." 3

That case is confined to situations arising under the Eatondocket and is inapplicable to the present case. Thus,whether the magistrate relied on Kinnear as "instructive"or dispositive, the magistrate's consideration of that casewas error. The second objection is sustained.

3 Magistrate's Decision, infra, at P51.

[*Pl5] In its third and frnal objection, relator arguesthat the magistrate's conclusion that "the facial conflictbetween Dr. Lowrey's Jufy 5, 2005 C-84 and his prior

Page 3

statements on MMI ***[is] readily explainable byreference to the intervening commission proceedings"improperly allows physicians to base medical opinions oncommission proceedings. We agree. As the claimantstates in her memorandttm contra, commissionproceedings, and the commission's legal determinationsabout 1viMi, do not inform physician's opinions; rather,physician opinions inform commission decisions.

[*P16] Though we do not engage in speculation asto whether commission proceedings played any role inDr. Lowrey's change of opinion, we conclude that it waserror for the magistrate to explain [**9] that change byreference to the commission's determinations. What wasrequired--and never provided--was an explanation fromDr. Lowrey. The magistrate erred in using thecommission's June 2005 denial of permanent totaldisability compensation to explain the basis for the abruptchange of opinion expressed in Dr. Lowrey's C-84. Forthis reason, the third objection is sustained.

[*P17] We note that in the recent case of State exrel. Baja Marine Corp. v. Indtrs. Camm., 114 Ohio St3d70, 2007 Ohio 2881, 868 N E.2d 266, the Supreme Courtof Ohio granted a limited writ and ordered thecommission to issue an amended order resolving claimedinconsistencies among three reports from the claimant'streating physician. We note that no party has requested orsuggested that such an alternative writ be granted in thepresent case, and, in our view, the facts do not warrantsuch an action. In Baja Marine, the record contained "aconfitsing series of reports that are alternatelycomplementary and contradictory" and the commission'sorder "suggest(ed) that the hearing officer may have beenequally perplexed by the evidence." Id. at P8. Thus, theSupreme Court found "a sufficient lack of clarity" towarrant an order that the [**10] commission reexaminethe evidence and issue an amended order. In the instantcase, however, Dr. Lowrey's notes and C-84 very clearlyset forth his opinions regarding MMI. Likewise, theSHO's order belies no confusion, equivocation orambivalence.

[*P18] For all of the foregoing reasons, this courttinds that Dr. Lowrey's July 5, 2005 C-84 is not someevidence supporting the commission's order and thecommission abused its discretion in relying thereon.Relatot's first, second and third objections are sustained.

['P19] Having undertaken a review of relator'sobjections, considered the arguments of the parties, and

Page 42007 Ohio 3877, *P 19; 2007 Ohio App. LEXIS 3510, ** 10

independently appraised the record, we adopt the findingsof fact contained in the magistrate's decision, we rejectthe conclusions of law contained therein, and we modifythe magistrate's decision to reflect the conclusions of lawexpressed hereinabove. The requested writ of mandamus

is granted.

Objec•tions .sxstained: writ of mandamus granted.

KLATT and FRENCH, JJ., concur.

APPENDIX A

N THE COURT OF APPEALS OF OHIO


State ofOhio ex rel.:

Certified Oil Corporation,:

Relator,:

V.

No. 06AP-835

William Mabe, Administrator,

(REGULARCALENDAR)

Ohio Bureau of Workers' Compensation, [**11] :

Industrial Commission of Ohio

and Javine A. Artis,

Respondents. :

MAGISTRATE'S DECISIOi t

Rendered on February 8, 2007

Roetzet & Andress LPA, Doaglas E. Spiker, Brian A.

Tarian and Ryan E. Bonina, for relator.

[*P20] In this original action, relator, Certified OilCorporation, requests a writ of mandamus orderingrespondent Industrial Commission of Ohio("commission") to vacate that pottion of its orderawarding temporary total disability ("TTD")cotnpensation from January 21 through Augttst 31, 2005,and to enter an amended order denying TTDcompensation for that period.

Findings of Fact:

[*P21] I. On Febntary 16, 2003, respondent JavineA. Artis ("claimant") sustained an industrial injury whileemployed with relator, a state-fund employer. Theindustrial claim (03-3 18180) is allowed for "contusion ofhip, right; pelvic fracture, left; aggravation ofdegenerative joint disease, lumbar; fracture acetabulumclosed, right; fracture of pubis closed, right; fracture ofpubis closed, left; sprain fumbar region."

[*P22] 2. On Janttary [*'12] 21, 2005, claimant'sattending physician, orthopedic surgeon Charles E.Lowrey, M.D., wrote:

* * * I have been treating her since 25February, 2003. She has united herfractures, but has persistent chronic painproblems. I have referred her to Dr. Orzofor chronic pain and management. She ispresently taking Celebrex, Elavil, andTramadol. She is also trialing Lidodermpatches for pain management. At this timeI believe her condition is maximallymedically improved. We do not plan anyaggressive treatment including surgicaltreat nent. However, in my opinion[,] Mrs.Artis is pernranently and totally disabledfrom gainful employment as the result ofher allowed conditions. Additionally, shewill require chronic pain treatment for anindefinite time frame.

Marc Dann, Attorney General, and Sandra E.

Pinkerton, for respondent Indttstrial Commission of

Ohio.

Philip J. Fulton Law Office, and Jacob Dobres, for

respondentlavine A. Artis.

N NfANDAMUS

[*P23] 3. On February 1, 2005, at the request of theOhio Bureau of Workers' Compensation ( "bureau")claimant was examined by Edwin H. Season, M.D. Dr.Season wrote:

* * * tvls. Artis has had extensiveconservative treatment for chronic lowerback pain. She has not been considered a


candidate for sttrgery. She has notundergone an appropriaterehabilitation/work hardening program.

I would recommend arehabilitation/work hardening program.She [**13] will not reach MNII until shecompletes such a program.

[*P24] 4. On February 3, 2005, claimant filed anapplication for permanent total disability ("PTD")

compensation. In support, claimant submitted the January

21, 2005 report of Dr. Lowrey.

[*P25] 5. On May 27, 2005, claimant was examinedby Dr. Lowrey at his office. Following the office visit,Dr. Lowrey wrote: "i have told her I believe she is ivIMIand therefore I am not recommending temporary total

disability at this time."

[*P26] 6. Following a June 22, 2005 hearing, a staffhearing officer ("SHO") issued an order denying the PTD

application. The SHO's order of June 22, 2005 explains:

* * * [T]he Application filed02/03/2005, for Pennanent and TotalDisability Compensation, is denied for thereason that it was filed prematurely. Thisdecision is based upon the following

findings.

While working as an assistantmanager for Certified Oil, the claiinantslipped on some snow and injttred herright hip on 02/1612003. Later that year, inSeptember 2003, she began working parttime as a short order cook. That job ended

on

06124/2004, when her employer lostthe contract with the facility in which sheworked. The claimant testified thatbecause of her increasing [** 14] pain, shehas not been able to return to work sincethen.

The claimant has been accepted into arehabilitation plan. Her attomey stated athearing that he recently talked with therehabilitation case manager, who revealed

that the claimant is still considered to be aviable candidate for their program, but thatit has been temporarily suspended,pending the outcome of this hearing.

Page 5

The claimant testified at hearing that

she is scheduled to undergo anotherepidural steroid injection by Dr. Orzo, hertreating pain management specialist, latertoday. She related that a possibility existsthat her chronic pain could be alleviated tosome degree for about eleven months.

Dr. Season examined the claimant on

02/01/2005 on behalf of the BWC. Heconcluded that the claimant's conditionshave not reached niaximum medicalimprovement, that she should enter a"rehabilitation/work Itardening program,"and that her functional capacity wouldprobably improve under suchcircumstances.

[n light of the claimant's current(although temporarily suspended)involvement with the rehabilitationdivision, the possibility that the injectionthat she had today may significantlyimprove her physical condition, and Dr.[**15] Season's recommendations, it isconcluded that the claimant's IC-2Application was filed pre-maturely.

Accordingly, the claimant'sApplication for Permanent and TotalDisability Compensation is denied for thereasons that the claimant's conditions arenot "permanent," and that she has not fultyexplored her potential for re-employment.

[*P27] 7. On a C-84 dated July 5, 2005, Dr. Lowreycertified TTD from the date of injury to an estimatedreturn-to-work date of September 1, 2005. The C-84 formasks the attending physician whether the industrial injuryhas reached maximum medical improvement ("MMI").Dr. Lowrey responded to the query in the negative. Dr.Lowrey did not extend his TTD certification beyondAugust 31, 2005.

[*P28] 8. On August 18, 2005, claimant moved for

2007 Ohio 3877,*P28;2007 Ohio App. LEXIS 3510, **15

TTD compensation.

[*P29] 9. On September 23, 2005, at relator's

request, claimant was examined by orthopedic surgeonPietro Seni, M.D. Dr. Seni wrote:

***[I]t is my opinion the claimant hasreached maximttm medical improvementfor all the allowed conditions of this claimbut the lumbar spondylosis. That conditionwithotit any further surgical intervention, Ibelieve she is maximum medicalimprovement for that condition as well.

[*P30] 10. Following [** 16] a November 10, 2005hearing, a district hearing officer ("DHO") isstted anorder stating:

It is the additional order of the DistrictHeadng Officer that temporary totaldisability compensation from 12/01/2004through 01/20/2005 is granted. TheDistrict Hearing Officer finds that theinjured worker was unable to return toformer position of employment due to theallowances in this claim dttring this periodof time. In making this decision theDistrict Hearing Offrcer relies upon Dr.Lowrey's contemporaneous office recordsas well as his 07/05/2005 C-84 report.

* * * [T]emporary total disabilitycompensation froin 01/21/2005 throughI 1/l0/2005 is denied. The District HearingOfficer finds that the injured workerattained maximum medical improvementfor the currently allowed conditions as of01/21/2005. Moreover, the DistrictHearing Officer finds that there is nomedical proof on f9le that the injuredworker's condition again becametemporarily and totally disabling on anydate after 01/21/2005. In making thisdecision, the District Hearing Officerrelies upon Dr. Lowrey's 01/2l/2005 and05/27/2005 office records as well as Dr.Seni's 09/23/2005 independent medicalexamination report.

Page 6

[*P31] It. [**17] Claimant administrativelyappealed the DHO's order of November 10, 2005.

[*P32] 12. Following a December 23, 2005 hearing,an SHO issued an order stating that the DHO's order is"modified." The SHO's order of December 23, 2005explains:

In that the office notes of Dr. Lowery[sic] conflict with his 7/05/2005 C-84'scertification of temporary total disability(and opinion that claimant had not reachedmaximum medical improvement), theStaff Hearing Office[r] find[s] that theproper date for the termination oftemporary total disability upon thegrounds of maximum medicalimprovement (as stated by Dr. Seni'sreport of 3/23/2005) would be the date ofresolution of such discrepancy (i.e. thedate of hearing herein).

However, there existing no evidencethat the claimant was temporary totaldisability [sic] beyond 8/31/2005 as statedon Dr. Lowery's [sic] C-84 of 7/05/20[0]5temporary total disability is orderedterminated as of 9/01/2005 instead of1/20/2005.

(Emphasis sic.)

[*P33] 13. On Febniary 14, 2006, another SHOmailed an order refusing relator's administrative appealfrom the SHO's order of December 23, 2005.

[*P34] [** 18] 14. On Augttst 18, 2006, relator,Certified Oil Corporation, filed this mandamus action.

Conclusions of Law:

[*P35] The issue is whether Dr. Lowrey's July 5,2005 C-84 is some evidence supporting the award ofTTD compensation front January 21 through August 31,2005.

[*P36] Finding that Dr. Lowrey's July 5, 2005 C-84is some evidence sttpporting the TTD award fromJanuary 21 through August 31, 2005, it is the magistrate'sdecision that this court deny relator's request for a writ ofmandamus, as more fully explained below.


[*P37] The Sttpreme Court of Ohio has held that amedical report can be so intemally inconsistent that itcannot constitttte some evidence supporting aeomniission decision. State es rel. Lopez v. Indtts. Contm.

(1994), 69 Ohio St.3d 445, 1994 Ohio 458, 633 NE.2d

528. By extension, the court hefd in State ex ref. M.

6Veingold & Co. v. lndas. Cotnm., 97 Ohio St.3d 44, 2002

Ohio 5353, 776 V.E.2d 69, that substantialinconsistencies between two C-84s generated by the same

examination compel the same result as in Lopez.

[*P38] This court followed the M. 6Veingold

rationale in State es red. Genuine Parts Co. v. Indus.

Convn., 160 Ohio App. 3d 99, 2005 Ohio 1447, at P4, 825

N. E.2d 1198, wherein this court stated:

Contrary to the respondent's contention,Dr. Snell's C-84 is [**19] not evidencetipon which the cominission cotild relybecatise the C-84 is inconsistent with Dr.Snell's examination notes. Recognizingthis inconsistency does not require theweighing of evidence as respondentargues. We give no greater weight toeither the C-84 or the examination notes.We simply find, as did the magistrate, thatthey relate to the same examination andthat they are inconsistent. The fact that theinconsistency arises from statementscontained in two different documentsrather than in one report is not significant.Again, it is clear that both documents wereprepared by Dr. Snell and relate to thesame physical examinations. As themagistrate notes, the same rationale wasapplied in State ex rel. iN. Weingold & Co.v. lndus. Camtn., 97 Ohio St.3d 44, 2002Ohio 5353, 776 N.E.2d 69 ***, whichinvolved substantial inconsistenciesbetween two C-84s arising from the sameexamination.

[*P39] In Genuine Parts, Dr. Snell certified theallowed lumbosacral sprain as the cause of TTD when hisofftce notes failed to mention a lumbosacral sprain butdid discuss serious disallowed and nonallowedconditions.

[*P40] Citing Genuine Parrs, relator contends that

Page 7

Dr. Lowrey's July 5, 2005 C-84 must be removed from[**20] evidentiary consideration because the C-84'scertification that disability is temporary is in conflict withDr. Lowrey's January 21, 2005 statement that claimant's"condition is maximally medically improved," and hisMay 27, 2005 statement: "I have told her I believe she isMMI and therefore I am not recommending temporarytotal disability at this titne."

[*P41] The magistrate disagrees with relator'scontention that the Genuine Parts rationale compels the

commission to eliminate Dr. Lowrey's July 5, 2005 C-84from evidentiary consideration.

[*P42] Significantly, following the June 22, 2005hearing, the commission, through its SHO, held that theindustrial injury had not reached MMI and, on that basis,denied the PTD application. Implicitly, the commissionnot only rejected Dr. Lowrey's opinion that claimant isPTD, it also rejected Dr. Lowrey's opinion that theindustrial injury had reached MMI.

[*P43] The real isstte here is whether Dr. Lowreyshould be permitted to render another disability opinionbased upon his acceptance of the commission's implicitrejection of his opinion that the industrial injury is atMMI. This type of issue was not present in GenuineParts and, thus, renders that case distinguishable [**21]from this one.

[*P44] As a practical matter, to hold that anattending physician cannot render another disabilityopinion based upon his acceptance of the commission'sdetermination that the injury is not at MMI, wouldprevent the attending physician from certifying TTDfollowing a comntission denial of a PTD applicationbased upon a finding that the injury is not at MMI. Ineffect, the claimant would be compelled to change hisattending physician in order to avoid the conflict onMMi.

[*P45] Ohio Adm.Code 4121-3-34(D) sets forthcommission guidelines for the adjudication of PTDapplications. Ohio Adrn.Code 4121-3-34(D)(1))9provides:

If, after hearing, the adjudicator findsthat the injured worker's allowed medicalcondition(s) is temporary and has notreached maximum medical improvement,the injured worker shall be found not to be

2007 Ohio 3877, *P45; 2007 Ohio App. LEXIS 3510,**2l

permanently and totally disabled becausethe condition remains temporary. In claimsinvolving state fund employers, the claimshall be referred to the administrator toconsider the issuance of an order on thequestion of entitlement to temporary totaldisability compensation. In claimsinvolving self-insured employers, theself-insured employer shall be notified toconsider [**22] the question of theinjured worker's entitlement to temporarytotal disability compensation.

[*P46] The above commission rule specificallyprovides for the consideration of entitlement to TTD

compensation following commission denial of a PTD

application based upon a finding that the injury is not atMMI. That rule is applicable to the instant scenarioinvolving the commission's denial of the instantclaimant's PTD application on MMi grounds.

[*P47] Gbviously, under the rule, following denialof a PTD application on MMI grounds, the administratorcannot issue an order awarding TTD compensation in theabsettce of medical evidence from the attending physicianthat the claimant is TTD. Thus, the rule seeins tocontemplate that somehow evidence of TTD from theattending physician will be forthcoming so that TTD

compensation can be considered.

[*P48] In the magistrate's view, Genuine Paris doesnot place the burden on a claimant to obtain a change ofpltysician just to avoid the appearance of a conflict thatrelator argues for here.

[*P49] In State ex rel. Kinnear Div., Narsco Corp.v. Inr(us. Comrn. (1997), 77 Ohio St.3d 258, 1997 Ohio40, 673 N.E.2d 1290, the claitnant's self-insured

employer paid TTD compensation based upon C-84sfrom Dr. Guluzian. [**23] Thereafter, the claimantapplied for PTD compensation. In support, Dr. Guluziancertified that the claimant "'is now permanently andtotally disabled from all gainful employment."' Id at 259.

However, because the claimant's PTD application wasplaced on the so-called "Eaton docket," Dr. Guluzian

continued to submit C-84s certifying TTD, and theself-insured employer continued to pay TTDcompensation pending a hearing on the PTD application.

[*P50] The Kinnear court states:

The second flaw in Harsco's argument isthat Dr. Guluzian's simultaneous PTD andTTD opinions are not an example of"equivocation," but of proceduralnecessity, engendered by compliance withthe "Eaton docket" procedures. Thoseprocedures necessarily contemplate thefiling of C-84s by the attending physicianin order to continue TTD compensationpending hearing on the PTD application.The purpose of this procedure, which thiscourt has endorsed, is to enable eligibleclaimants to begin to receive PTDcompensation immediately upontermination of TTD compensation. SeeState ex ret. Blake v. htdus. Comm. (1992),65 Ohio St.3d 453, 455, 1992 Ohio 56,605 N.E.2d 23 ***; State ex re(. FordMotor Co. v. Indus. Comm. (/992), 65Ohio St.3d 17, 21-22, 1992 Ohio 107, 599N.E.2d 261 * * [**24] *; State ex rel.Eaton Corp. v. Lancaster (1988), 40 OhioSt.3d 404, 534 N E.2d 46[.] * * * Thus, wedecline to find any equivocation in Dr.Gtduzian's reports, and instead find hisOctober 2, 1991 report to be some medicalevidence of PTD upon which thecommission properly relied.

/d. at 265-266.

Page 8

[*P51] While Kinnear is not precisely on all fourswith the instant case; the magistrate, nevertheless, finds itto be instructive. Practical considerations can bedispositive in determining whether a facial conflict in themedical evidence submitted by a physician should beviewed as fatal to its evidentiary viability.

(*P52) Here, the facial conflict between Dr.Lowrey's July 5, 2005 C-84 and his prior statements onMMi are readily explainable by reference to theintervening commission proceedings. By way of contrast,in Gemiine Parts, there was no acceptable explanation forDr. Snell's failure to mention the lumbosacral sprain inhis office notes when he had certified the lumbosacralsprain as the proximate cause of disability.

[*P53] Accordingly, for all the above reasons, it isthe magisuate's decision that this court deny relator's

2007 Ohio 3877, "P53; 2007 Ohio App. LEXIS 3510, **24

request for a writ of mandamus.

l5/ KENiNETH W. MACKE

KEiNNETH W. MACKE

MAGISTRATE

NOTICE TO ["25] THE PARTIES

Page 9

Civ.R. 53(D)(3)(a)(iii) provides that a party shall notassign as error on appeal the court's adoption of anyfactual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusionof law under Civ.R. 53(D)(3)(a)(ii), unless the partytimely and specifically objects to that factual finding orlegal conchtsion as required byC1v.R. 53(D)(3)(b).

Page I


State ex rel. I. DeVeda Copeland, Relator, v. School Employees Retirement Systeni,Respondent,

No. 98AP-1173


1999 Ohio App. LEXIS 3549

August 5, 1999, Rendered

DiSPOSITION: [* I] Writ of mandamus denied.

COUNSEL: Esther S. Weissnian Co., L.P.A., Esther S.

Weissman and Kelly Colasurdo, for relator.

Betty D. Montgomery, Attorney General, andChristopher S. Cook, for respondent.

JUDGES: LAZARUS, P.J., PETREE, J., concurs.TYACK, J., dissents.

application, relator filed attending physician reports fromDaniel Rapport, M.D., her treating psychiatrist, andSheldon Kaffen, Iv[.D., an orthopedic surgeon. Dr.Rapport certified that relator was disabled due to theprimary conditions of major depression and recurrentdysthymia and the underlying ['2] conditions of asthmaand chronic pain. Dr. Kaffen eertified that relator wasdisabled due to the primary conditions of impingementsyndrome both shoulders, chronic cervical myofascitis,chronic lumbar myofascitis, and an ttnderlying conditionof major depression.

OPINION BY: LAZARUS

OPINION

(REGULAR CALENDAR)

DECISION

I7V MANDAMUS

LAZARUS, P.J.

Relator, 1. deVeda Copeland, has filed this action inmandamus seeking a writ oF mandamus that compelsrespondent, School Employees Retirement System("SERS"), to vacate its prior orders denying her disabilitybenefits and to enter a new order granting her applicationFor such benefits. Because we find that relator does nothave a clear legal right to the relief requested, we denythe writ.

In July of 1997, relator, a former employee of theCleveland Board of Education, filed a disabilityretirement application with respondent. In support of her

Pursuant to the requirements of R.C. 3309.39(C) andOhio Adm.Cade 3309-1-41(A), respondent selected three"competent disinterested" physicians to conductexaininations of relator to determine whether she was"physically or mentally incapacitated for performance" ofher last assigned job duty by a"dissbling condition." Inparticular, Jeffery C. Hutzler, M.D., a psychiatrist,examined relator as to her claimed conditions of majordepression and dysthymia and filed a report withrespondent certifying that relator was not physically orinentally incapacitated. Richard A. Katzman, M.D.,examined relator as to her claimed condition of asthmaand itled a report with respondent certifying that relatorwas not physically incapacitated. In this report, Dr.Katzman concluded that relator's asthma was "inremission" and that her ptdmonary function studies werenonnal. Finally, Daniel M. Dorfman, M.D., examined[*3] relator as to her orthopedic conditions and frled areport certifying that relator was not physically ormentally incapacitated. In this report, Dr. Dorfmanconcluded that relator's "physical complaints faroutweigh the objective findings identified on


examination."

Pursuant to the procedures outlined in Ohio

Adra.Code 3309-I-41(A), the attending physician and

independent physician reports were reviewed by threemembers of the respondent's Medical AdvisoryCommittee, in particular Ernest L. Mazzaferri, M.D.,Edwin H. Season, M.D., and Charles F. Wooley, NI.D.All three members of the committee agreed that relatorwas not incapacitated, and each forwarded writtenrecommendations to the chairman of the committee, Dr.Robert Atwell, that relator's application be denied. OnDecember 29, 1997, Dr. Atwell wrote to the members ofthe School Employees Retirement Board ("the retirementboard") stating that the committee members had reviewedall of the infonnation submitted and that on the basis ofthat infonnation recommended that relator's disabilityapplication be denied. On Janttary 16, 1998, theretirement board denied relator's disability retirementapplication. On January 20, 1998, respondent [*4]informed relator by letter of the denial and inforinedrelator of the available appeal procedures.

By letter dated Janttary 23, 1998, relator informedrespondent of her intention to appeal and requested apersonal appearance before the retirement committee ofthe retirement board. On April 20, relator filed twoadditional "psychological reports" in support of herappeal, one by Dr. Rapport and one by psychologist,Stephen A. Kushnick, Ph.D. Both reports concluded thatrelator was disabled from either a psychiatric orpsychological aspect. At respondent's request, Dr. Hutzlerreviewed the two additional reports filed by relator andsubsequently filed a supplemental report reiterating hisprior assessment that relator did not suffer from disablingdepression.

On June 5, 1998, Dr. Season, Interim Chairman ofthe Medical Advisory Committee, wrote to the membersof the retirement board informing them that thecommittee had reviewed the "new medical evidence"submitted by relator and the supplemental report by Dr.Hutzler, that it still believed that relator was not impairedfrom her regular work duties, and that it recommendedthat the decision to the application be upheld. By letterdated [*5] June 22, 1993, respondent informed relatorthat all of the submitted medical evidence had beenreviewed, that "additional objective medical evidence" insupport of her application had not been established, thather request for a personal appearance had been denied,

Page 2

and that on June 19, 1998, the retirement board hadupheld their original recommendation to deny relator'sdisability retirement applicadon.

On September 11, 1998, relator filed this originalaction in mandamus seeking a writ ordering the reversalof respondent's denial of her disability. Relator allegedthat respondent abused its discretion in failing to giveproper weight to the opinions of her treating physicians,abused its discretion in failing to consider the combinedeffects of her psychological and physical conditions, andabused its discretion in denying her request for a personalappearance. After service of process, respondent filed itsanswer denying that relator was entitled to a writ. Each ofthe parties filed evidentiary statements and briefs. Thecase is now before this cottrt for consideration on themerits.

In order to obtain a writ of mandamus, relator mustestablish that she has a clear legal right ['"6] to the reliefrequested, that respondent has a clear legal duty to grantit, and that no adequate remedy at law exists to vindicatethe claimed right. State ex rel. Hattie v. Goldhardt(1994), 69 Ohio St. 3d 123, 125, 630 1JE.2d 696.Pursuant to R.C. 3309.39, the determination of whether amember of SERS is entitled to disability retirementbenefits is solely within the province of the retirementboard. State zc rel. McMaster v. School Etnp. RettreinentSys. (1994), 69 Ohio St. 3d 130, 133, 630 N.E.2d 701.However, a determination by the retirement board that anapplicant is not entitled to disability retirement benefits issubject to review by mandamtts, which may also beutilized to correct any other abuse of discretion in theproceedings.ld.

Relator Brst contends that respondent abused itsdiscretion in failing to give proper weight andconsideration to the opinions of her two treatingphysicians, Dr. Rapport and Dr. Kaffen. According torelator, the opinions of treating physicians should beaccorded "great weight" and that their opinions were"completely ignored without explanation from SERS."(Relator's brief, p. ll.) [*7] We find, however, noauthority in support of relatots proposition that theopinions of her treating physicians should be accordedmore weight than those of the independent medicalexaminers appointed by SERS. Nor do we agree withrelator's contention that respondent "completely ignored"the opinions of her treating physicians.

In support of her contention that the opinions of


treating physicians should be accorded greater weightthan those of nontreating physicians, relator reliesexclusively on U.S. Sixth Circuit Court of Appeals caselaw applying such a ntle in the social security disability

context. See, e.g., Wedker v. Secretaiy of Health and

Human Seivfces (C.A.6. 1992), 980 F.2d 1066. 1070. In

the context of SERS disability benefits, however, theOhio Supreme Court has essentially rejected thisapproach with its decisions in State ex rel. Schwaben v.

School Emp. Retrretnent Sys. (1996), 76 Ohio St. 3d 280,

667 N.E.2d398, and ,NcaLfaster, sapra.

In Schwaben, supra, the applicant's treatingphysician diagnosed her as suffering from clinicaldepression, but the disinterested physician appointed bySERS concluded that [*8] the applicant was notincapacitated in her ability to do her job. When SERSconcurred with the disinterested physician and deniedbenefits, the applicant filed a mandamus action, whichwas denied by this court. On appeal to the Ohio SupremeCourt, the applicant argued Ihat her treating physicianwas the only physician competent to adequately assessher condition. ld at 282. The court rejected thiscontention and affirmed SERS's denial of benefits,holding that SERS had no duty to rely exclusively on thefindings of the member's treating physician. Id. Similarly,

in McrWa.cter, supra, the Supreme Court affirmed SERS'sdenial of benefits based upon the reconimendation of thedisinterested physicians despite the contrary conchtsionsof the applicant's treating physician. As evidenced by theSupreme Court's approach in both Schwaben and

,NcLtaster, SERS is not reqtiired to accord a treatingphysician's opinion any more weight than that of theindependent medical examiners appointed by SERS. t

I In fact, some could argue that the language of

R.C. 3309.39 precludes SERS from approvingdisability retirement benefits, at least initially,unless a disinterested physician selected by SERSfirst determines that the member qualifies for suchbenefits. R.C. 3309.39(E) indicates that disabilitybenefrts are to be awarded only if "the physicianor physicians determine that the member qualifiesfor a disability benefit." A fair reading of thislanguage is that the phrase "pltysician orphysicians" refers to those same "physician orphysicians" selected by the retirement board toconduct medical examinations of the applicantpursuant to R.C. 3309.39(C). Under thisinterpretation, treating physician reports are

Page 3

accorded no weight other than to provide amedical basis for the application from which theindependent medical examiners can use in theirevalttations. However, considering thatrespondent has not argued this interpretation ofthe statute, we do not directly address it here.

[*9] Similarly, we find that relator's contentibn thatrespondent completely ignored or ettrsorily dismissed theopinions of her treating physicians is not supported by therecord. Dr. Mazzaferri generally noted that he had"reviewed the medical documents" penaining to relator'sapplication and specifically referenced Dr. Rapport'soriginal report. Dr. Season specifically stated that hereviewed Dr. Rapport's report, and Dr. Wooleyspecifically noted that he reviewed the two attendingphysician reports and the accompanying medical records.Moreover, both Dr. Altman's written recommendation tothe retirement board and the board's notification letter torelator indicated that all medical information wasreviewed. Certainly, none of the references to ordiscussions of the opinions held by the treating physiciancould be labeled extetrsive. However, given that neitherDr. Rapport's original report nor Dr. Kaffen's reportprovided any detailed analysis explaining or supportingits conclusions (especially in contrast to the reports filedby the three independent physicians), it is not surprisingthat the discussion of Dr. Rapport's and Dr. Kaffen'sopinions by the members of the advisoty committee [* 10]and board was limited. In sutn, we find that relator hasfailed to show an abuse of discretion in respondent'streatment of the opinions of relator's treating physicians.

Relator further contends that respondent abused itsdiscretion in not considering the combined effects ofrelator's mental and physical iinpairments in making itsdetermination to deny her application. Relator sttbmitsthat respondent abused its discretion by relying upon theevaluations of the independent medical examiners, noneof whom considered the combined effects of all ofrelator's illnesses, when her application was based uponthe combined effects of her impairments, and the medicalopinions submitted by her reflected such an assesstnent.Relator especially relies upon the vocational evaluationof Dr. Kushnick submitted with her appeal. Again, wedisagree that respondent abused its discretion in thisregard.

First, we find no abuse of discretion by respondent inseeking independent medical examinations by separate

1999 Ohio App. LEXIS 3549, * 10

specialists in those areas related to the separate conditions

alleged in relator's application. R.C. 3309.39(C) requires

that a "medical examination *** be conducted by [*11] a

competent drsinterested physician or phvsicians selected

by the retirement board to determine whether the metnberis mentally or physicafly incapacitated for theperformance of the member's last assigned primary dutyas an employee by a disabling condition." Here, threedisinterested specialists were selected to evaluate thethree general medical conditions included in relator'sapplication, i.e., those related to her depression, thoserelated to her asthma, and those related to her orthopedicailments. This approach was consistent with the

requirements of the statute.

Moreover, even though the independent medicalexaminers limited each of their evaluations to theseparate conditions at issue, there is no evidence that theevaluations by the members of the medical advisorycommittee or the retirement board were similarly limitedin their assessment of relator's condition. As noted above,the medical advisory committee and the retirenient boardreviewed all of the evidence submitted, including those ofrelator's treating physicians. As such, relator cannot showthat respondent failed to consider the combined effect ofher multiple illnesses, and as such, cannot show anyabuse [* 12] of discretion in this regard.

Relator finally contends that respondent abused itsdiscretion by denying her a personal appearance beforethe retirement board's retirement committee as part of herappeal. Relator argues that she satisfied the requirements

of Ohio ddin.Code 3309-1-41(B)(3) and (4) entitling her

to such an appearance.

Under Ohio IIdm.Code 3309-1-4 1 (B)(4), an applicantinay request, as part of an administrative appeal, apersonal appearancc before the retirement board'sretirement committee. Said request must be in writingand must be subinitted to the retirement board withinfifteen days of the date on the notice of the denial ofbenefits. However, a personal appearance will not begranted unless "additional objective medical evidence" issubmitted to the retirement board within ninety days fromthe notice of denial. Id. Ohio Adm.Corle 3309-1-41(B)(3)defines "additional objective medical evidence" as:

"`* Current medical evidence documented by alicensed physician specially trained in the field of

medicine pertinent to the illness or injury for whichdisability is claimed, and such evidence itself has not,

Page 4

heretofore, been submitted, and such evidence does not[*13] merely contain or reiterate findings of informationcontained in documents or evidence previouslysubmitted.

Respondent denied relator's request for anappearance on the grounds that she failed to submitadditional objective medical evidence. Relator contendsthat the second "narrative report" from Dr. Rapport andthe psychological report from Dr. Kushnick, Ph.D.,submitted with her appeal constituted additionai objectivemedical evidence under the rule. We disagree.

First, Dr. Kushnick is a licensed psychologist, not aphysician. As such, his report does not constitute medicalevidence "documented by a licensed physician speciallytrained in the field of medicine" as required under therule. See McMaster, supra, at 136 (psychologicalevaluation by a licensed psychologist does not satisfyrule's "licensed physician" requirement). Second, Dr.Rapport's narrative report includes no additional findingsor information not otherwise previously contained in theevidence previously submitted. Rather, the report merelyprovides a more detailed analysis in support of Dr.Rapport's prior conclusions and summarizes hisdisagreement with the conclusions reached by Dr.Hutzler. [*141 In short, it is not the type of evidencesatisfying the mle's definition of "additional medicalevidence." We find, therefore, no abuse of discretion indenying relator's request for a personal appearance.

The dissent maintains that relator is entitled to alimited writ ordering the respondent to issue a new ordermore adequately explaining its decision denying herapplication and reflecting a weighing of the conflictingmedical reports. The dissent notes that such orders arerequired in the workers' compensation context underState ex rel. No11 v. Indus. Coanm. (1991), 57 Ohio St. 3d203, 567 N.E.2d 245. We do not find, however, thatcompliance with the mandates of Voll is mandated by theapplieable statutes, regulations, or case law governingdisability benefit determinations under SERS.

Specifically, R.C. 3309.39 is silent as to theobligation of SERS when it denies disability benefits.Under Ohio Adm.Code 3309-1-41(B)(1), SERS is onlyrequired to issue a "notice of denial" to the applicantinforming her of the medical evaluation, the board'sdecision, and the procedures for and right to appeal.Similarly, under Ohio Rd n.Code 3309-1-41(D), (• 15] ifSERS concttrs with a recommendation for denial of an

1999 Ohio App. LEXIS 3549, * 15

appeal, SERS is only required to notify an applicant byletter of such decision.

Thus, while this court has recently extended therequirenients of Noll in the context of disabilitydeterminations under the Public Employees RetirementSystem ("PERS"), see, e.g., State ex rel. Green v. Publ.Empf. Retirement Sys., 1999 Ohio Rpp. LEXIS 2830 (June22, 1999), Franklin App. No. 98AP-567, unreported(1999 Opinions 1720), we did so in part because theregulations at issue there specified that the PERS boardshall state the basis for its denial. Here, nothing in thestatute or regulation suggests that the SERS retirementboard or the niembers of its medical advisory board mustissue a decision in the nantre sought by the dissent.

For the foregoing reasons, we Rnd that relator hasnot established a clear legal right to the relief requested.Therefore, her reqtiest for a writ of mandamus is denied.

Writ oJlnandamiis denied

PETREE, J., concurs.

TYACK, J., dissents.

DISSENT BY; TYACK

DISSEN'r

TYACK, J,, dissenting:

I respectfully dissent.

Ina deVeda Copeland worked for the ClevelandPublic Schools for over fifteen years. Dtiring [*16] thelast few years of lter career, she suffered from seriousbouts of depression and medical problems, which led toher filing for a disability retireinent. She was seeing hertreating psychiatrist every three months and her treatingpsychologist about once a week.

Ms. Copeland's treating psychiatrist, Daniel J.Rapport, M.D., reported:

In summary, it is clear that Ms. Copeland suffersfrom recurrent major depression, which is now co-morbidwith dysthymia, and a personality disorder not otherwisespecified with traits of borderline and narcissisticpersonality disorders. Therefore based on the findings ofDr. Hutzler, Dr. Calabrese, and myself, I do believe thatMs. Copeland is disabled in her ability to work from a

Page 5

purely psychiatric standpoint. I believe that she has beendisabled for years, and is not likely to recover.

Stephen A. Kushnick, Ph.D., provided a six-pagepsychological report at the end of which he concluded:

It is this evaluator's professional opinion that withina reasonable degree of psychological certainty, Copelandis currently unable to meet the productive andinterpersonal demands of the world of work, that thiscondition will continue unabated, and [*17] thusCopeland is deemed permanently and totally disabled.

Jeffrey C. Hutzler, M.D., in his own report,acknowledged that Ms. Copeland suffers fromdepression, but did not view the depression as disabling.

The report from the Medical Advisory Committee tothe School Employees Retirement System after all thereports had been received contains a grand total ofthirteen lines of narration. Ten of the lines are a recitationof what has occurred. Of these ten lines, one sentencedescribes the content of the report of Dr. Rapport. Twosentences describe the contents of the report of Dr.Hutzler.

The analysis of the conElicting reports by theMedical Advisory Committee, at least insofar as it iscommunicated to the School Employees RetirementBoard, is non-existent. Those remaining three lines read:

On the basis of all of the information presented, wefeel Ms. Copeland is not impaired from her regular workduties. We recommend that the decision to deny

disability retirement be upheld.

Unfottttnately, we live in a time when "independentmedical examiners" are not always independent. Theexaminers are frequently paid by large corporations andlarge governmental entities which have a [* 181 vestedinterest in not paying benefits. Given these facts, thecourts, which have a constittttional obligation to reviewdecisions, such as the decision made here, must beprovided some insight as to why the professionals whohave treated Ms. Copeland for years should have theiropinion disregarded and why the opinion of"independentmedical examiners" should have their opinions givenmore weight. In the workers' compensation field, suchexplanations are required. See State ex rel. Nolf v. lndus.Comm. (1991), 57 Ohio St. 3d 203, 567 N.E.2d 245. 1believe similar explanations should be required for the

1999 Ohio App. LEXIS 3549, *18Page 6

other governmental entities which administer disability merits of her claim for benefits, which determinationfhnds. reflects an adequate explanation as to the weighing of the

respective reports and an intelligible discussion of theAs a resttlt, I would grant a limited writ of inedical and psychological conditions involved. Since the

mandamus which compels the School Employees majority of this panel does not do so, I respectfttllyRetirement Board to vacate its previotts denial of benefits dissent.for Ms. Copeland and to enter a new determination of the

Page I


State of Ohio ex rel. Larry L. Green, Sr., Relator, v. Public Employees RetirementSystem of Ohio and Public Employees Retirement Board, Respondents.

No. 98AP-567

COURT OF APPEALS OF OH1O, TENTH APPELLATE DISTRICT, FRANKLINCOUNTY

1999 Ohia App. LEXIS 2830

June 22, 1999, Rendered

DISPOSITION: [Ì ] Limited writgranted.

COUNSEL: Dean G. Reinhard Co., L.P.A., and CharlesZamora; Merl H. Wayman Law Office, and Merl H.

Wayman, forrelator.

Betty D. Montgomery, Attomey General, and Julie P.

Emch, for respondents.

JUDGES: BRYANT, J. BOWMAN, J., and LAZARUS,

P.J., concur.

OPINION BY: BRYANT

OPINION

(REGULAR CALENDAR)

DECISION

TN MANDAMUS

BRYANT,J.

Relator, Larry L. Green, Sr., commenced thisoriginal action requesting that this couit issue a writ ofmandamtts which directs respondents, the PublicEmptoyees Retirement Systeni and the Pttblic EmployeesRetirement Board (collectively referred to as "PERS"), togrant his application for disability retirement or,afternatively, to isstie a limited writ of mandamusdirecting PERS to issue a new decision specificallyidentifying the evidence relied upon and explaining itsreasons for granting or denying relator's application.

Relator was employed by the Ohio Department ofRehabilitation and Corrections as Deputy Warden ofOperations & Special Services at the HockingCorrectional Facility. In July of 1994, while at work,relator suffered a branch retinal vein occlttsion in hisright eye. According to his doctors, the condition hascaused [*2] relator to lose most of liis sight in that eye.In 1996, relator applied for disability retirement withPERS, and by letter dated June 20, 1997, PERS deniedrelator's application. Relator subsequently appealed thedenial of his application, and Itis appeal was similarlydenied by letter dated January 23, 1998. Relator then

filed the present mandamus action.

Relator first contends that PERS' decisions denyinghim disability retirement do not identify the evidence thatPERS relied on and fail to explain the reasons fordenying relator's application. In support of his contention,

relator relies on State es rel. Noll v. Indus. Comm. (1991),57 Ohio St. 3d 103, 567 N.E.2d 245, which states that "in

any order of the Industrial Commission granting ordenying benefits to a claimant, the comtnission mustspecifically state what evidence has been relied upon, andbriefly explain the reasoning for its decision." Id. at

syllabus. The Nolt requirement was implemented so thatreviewing courts were apprised of the rationale for adecision, as well as the evidence relied on in reaching the

decision. As Voll explains:

The time has cotne for the commission to recognizeits responsibility [*3] to prepare fact-specific orderswhich will be meaningful upon review. It is well-settledthat the commission has the exclusive authority todetermine disputed facts and weight of the evidence. "*"However, a nieaningful review can be accomplished only


if the conimission prepares orders on a case-by-case basiswhiclr are fact-specific and which contain reasonsexplaining its decisions. **" Such order must specificallystate what evidence has been relied upon to reach itsconclusion and, most important, briefly explain the basisof its decision. Noll, supra, at 206.

While Noll was a case involving the IndustrialCommission and workers' compensation, this court hasapplied the rationale of iVoll the in other than the workers'compensation cases.

fn State ex rel. Kidd v. Bd. of Trustees of Police &Firemen's Disability & Pension Ftmd (1991), 66 OhioApp. 3d 647, 585 N.E.2d 930, this cotnt also applied the

Noll rationale to the Police and Firemen's Disability &Pension Fund ("PFDPF") and noted that "although thesetwo holdings [Nofl, supra, and State ex rel. Mitchell v.

Robbins &,Lfyers. Inc. (/983). 6 Ohio St. 3d 481, 453N.E.2d 7211 apply to the Industrial Commission, [*4]their principles are equally applicable to the decisions ofthe Fttnd's board. The issues upon which the Fund's boardand the Industrial Commission determine the right of anindividtial to receive benefits and the extent to which thebenefits will be given are similar and the standard ofreview of their decisions on review in mandamus are thesame: an abttse of discretion. Thtts, a meaningful reviewof the board's decisions can be accomplished only if theboard prepares orders which specifically state theevidence that has been relied on and contain thereasoning explaining its decision. Accordingly, theFund's board is reqttired to state both the reasons for itsdecision and the evidence relied upon and to give anexplanation of the reasoning behind its decision." 66

Ohio App. 3d at 651-652.

Again, in State ex reL Montague v. Police &

Firemen's Disability & Pension Fund (1992), 78 OhioApp. 3d 661, 605 N.E.2d 1009, this court applied the

rationale behind Noll to decisions of the board of trusteesof the PFDPF, finding no reason to not apply the iVoll

requirement to the decisions of the PFDPF board oftrustees in granting or denying benefits. In ibfontague, thiscourt granted a limited [*5] writ ordering PFDPF to statethe basis and reasoning for its decision and the evidencerelied upon. See, also, State ex rel. Lone v. Bd ofTrustees. Police and Firemen's Disability and PensionFtrnd. 1997 Ohio App. LEXIS 1969 (May 8, 1997),Franklin App. No. 96APD11-1494, unreported (1997Opinions 1640) (granting a writ of mandamus ordering

Page 2

PFDPF to issue a new order granting or denyingcompensation that complies with Noll).

Similarly, this cottn finds no reason not to apply thereasoning of Noll and Montague to the decisions ofPERS, especially given the applicable rules. OhioAdm.Code 145-I 1-02 specifies that the board's denial ofa disability benefrt shall state "its basis of denial." Cf.Mitchell, strpra, at 483 (stating that "we will, whennecessary "** grant a writ of mandamus directing thecommission to specify the basis of its decision"[emphasis added].

Indeed, the two decisions in this case demonstratethe need to do so. PERS' first decision, dated June 20,1997, states that "based on the information in the medicalreports, the board has denied your application for adisability benefit because you are not permanentlyincapacitated from the performance of your job duties."[*6] In denying relator's appeal from that decision, andafter noting receipt of relator's snpplemental medicalinformation, PERS simply wrote that "the Boardsustained its previous action to deny the disabilityretirement application." The decisions provide no insightinto the reason the decisions were resolved against relatoror of what evidence was considered in making thedecisions, thereby making a meaningful review of thedecisions virtually impossible.

PERS contends relator's case is distinguishable fromNoll and Montague because the decisions in both of thosecases determined a level of disability, while PERSdecisions only determine whether a claimant ispermanently incapacitated froin performing his or herpresent job. However, if this court is to review a decisionof PERS, as with a decision of the Industrial Comtnissionor the PFDPF, for an abuse of discretion, it must be ableto identify the reasoning of the decision and the evidencethe board relied on in making that decision. PERS mustcomply with the dictates of Noll in an order granting ordenying beneftts.

Relator has also requested relief pursuant to State exrel. Gay v. Nfihm (1994), 68 Ohio St. 3d 315, [*7] 626N.E.2d 666. Gay relief allows this court to grant a fullwrit of mandamus to order the agency to award benefitswhere the evidence demonstrates a substantial likelihoodthat relator is entitled to an award and that no usefulpurpose would be served by remanding the case for aredetermination of the agency's decision. However, "Gayrelief was intended as a narrow exception to the general


rule of returning Not!-deficient orders to thecommission." State ex rel. Pass v. C.S.T. Extraclion Co.

(1996), 74 Ohio St. 3d 373, 376, 658 N.E.2d 1055.

(Emphasis sic.) Such relief "will be granted only inextraordinary circumstances revealing an abuse ofdiscretion." Id. No sttch abuse of discretion exists if someevidence supports the decision.

Here, although the evidence was contradictory, someevidence supports PERS' decision to deny relator'sapplication for benefits. Dr. Visocan examined relatorand determined that he was not presumed to be physicallyincapacitated and slrotdd not be entided to disabilitybenefits. Two other physicians, Dr. Mast and Dr. Smith

Page 3

also recommended that relator's application for benefitsbe denied. As a result, Gay relief is inappropriate.

["8] For the foregoing reasons, this court grants alimited writ of mandamus directing PERS to vacate itsdecision denying relator's application for disabilityretirement and to issue a new decision granting ordenying relator's application, specifically identifying theevidence relied upon and explaining its reasons for itsdecision.

Limited writ granted

BOWbfAN, J., and LAZARUS, P.J., concur.

Page I


State ex rel. Terry Tharp, Relator, v. Consolidated Metal Products and TheIndustrial Commission of Ohio, Respondents.

No. 03AP-124



November 26, 2003, Rendered

PRIORHISTORY: [**I] INMANDAMUS.

DISPOSITION: Writ denied:

that relator had failed to meet his burden of establishingan abuse of discretion by the commission and that thiscourt should deny the requested relief.

COUNSEL: White, Getgey & Meyer Co., L.P.A., and

Glenda Morgan Hertzman, for relator.

Jim Petro, Attomey General, and Jo-Ellytt H. Tucker, for

respondent Industrial Commission of Ohio.

JUDGES: LAZARUS, J. BROWN and KLATT, JJ.,

concur. P. A. DAVTDSON, MAGISTRATE.

OPINIOi BY: LAZARUS

OPINION

(REGULAR CALENDAR)

DECISION

LAZARUS, J.

[*PI] Relator, Terry Tharp, has filed this originalaction in mandamus requesting this court to issue a writof mandamus ordering respondent Industrial Commissionof Ohio to vacate its order denying relator's applicationfor permanent total disability compensation and to enter anew order granting said compensation.

[*P2] This court referred the matter to a magistrate,pursuant to Civ.R. i3(C) and Loc.R. I2(M) of the TenthDistrict Court of Appeals, who issued a decision,including tindings of fact and conclusions of law.(Attached as Appendix A.) The magistrate determined

[*P3] No objections were filed to the decision ofthe magistrate.

[*P4] Finding no error or [**2] other defect on theface of the decision of the magistrate, pursuant to Civ.R.53, we adopt the decision of the magistrate as our own,incittding the findings of fact and conclttsions of lawcontained in it. In accordance with the decision of themagistrate, the requested writ is denied.

6I/rit denied

BROWN and KLATT, JJ., concur.

IN MANDAMUS

[*P5] In this originai action, relator, Terry Tharp,asks this court to issue a writ of mandainus compellingrespondent Industrial Cominission of Ohio("commission") to vacate its order denying compensationfor permanent total disability ("PTD") and to issue anorder granting the requested compensation.

Findings of Fact:

[*P6] I. In 1984, Terry Tharp ("claimant") sufferedinjuries in an industrial accident while employed as amachinist performing heavy work. His workers'compensation claim was allowed for numerousconditions of the left leg, left foot, left shoulder, lumbarspine and lumbosacral spine, as well as aggravation ofpreexisting depression.


[*P7] 2. Claimant returned to Itis employer butworked as a forklift operator. He subsequently left thatemployment and studied electronics and computers.[**3] He then worked as an electronics technician forabout six years after which he took a position with acomputer store that involved building coniputers fromscratch, loading and testing software, repairingcomputers, and diagnosing problems when customersbrought computers into the store. Claimant ceasedworking on January 31, 2000.

[*P8] 3. In July 2001, claimant filed a PTDapplication, indicating that he was 46 years old and hadattended college for about one and one-half years.

[*P9] 4. In September 2001, claimant wasexamined on behalf of the commission with regard to hisphysical conditions by James T. Ltitz, M.D., whoreported that claimant was able to perform routinehotisework such as vacuuming and was able to drive andtake care of a new baby that he and his wife had adopted,including taking the child for walks. Dr. Lutz reported hisclinical flndings and then opined that claimant had apemianent partial iinpairment of 21 percent and cottldperform sedentary work.

["P[0] S. In October 2001, claimant was examinedon behalf of the commission by Donald L. Brown, M.D.,with regard to the aggravation of preexisting depression.In reviewing claimant's history, Dr. [**4] Brown notedclaitnant's hospitalizations dtte to seizures caused byepilepsy, diagnosed when he was I I years old. Claimantsaid that he had a poor memory and that "everybodyblaines it on that." Claimant also stated that he has hadsome dizzy spells over the years that were attributed tohis epileptic condition and recently had been told of twoblackouts of wltich he had no recollection, Dr. Brownnoted that lanies R. Hawkins, M.D., during hisexamination, observed indications of a petit mal seizureor sotne form of seizure equivalent.

[*P I I] Claimant told Dr. Brown that, at around age21, he engaged in some drinking and using dntgs. Hestated that he was charged with possession of marijuana.Claimant also said that he was arrested twice fordomestic violence, for which he was incarcerated bothtimes. After being incarcerated the second time for sixmonths, claimant said he entered an anger managementprogram on his own and received psychologicaltreatment, which helped him tremendously. He said thathe and his wife get along well since then.

Page 2

[*PI2] Claimant also said that his memory probleinstemmed from an incident when he was arottnd age 21and was beginning a seizure, and the [**5] policethought he was drunk and beat him up, resulting in aten-day hospitalization in the intensive care unit.

[*P13] Dr. Brown also commented:

[*P14] "He has a prior history of depression.Around age 13, he apparently got depressed and thoughtabout jumping out of a window but fell out of it insteadfracturing his left foot and then a week later overdosed.He was hospitalized at UC Hospital for apparently about2 mos. and after that in outpatient therapy for awhileindicating that 'they didn't help with my anger problemback then,' This is when he indicated that it became anissue again after he married. Previous reports seem todocument the problem with anger throughout hischildhood and adolescence. He says that all of hissiblings have experienced depression as well as suicidalideation. He also can see wltere some of them may havehad ADHD symptotnatology. He indicated that he hadproblems throughout his life with short attention span,motor restlessness, and difficulties with his memorywhich seemed to'get worse' over time. ***"

[*PI5]Dr. Brown inquired about Attention-DeficitHyperactivity Disorder ("ADHD"), eliciting thefollowing infonnation:

[*P16] [**6] "* * * He said his 19 yr. old son * ** was diagnosed has having ADHD when younger andnow is also being treated for bipolar disorder. He also hassome type of epileptic condition. His IS yr. old son wastreated for ADHD but has responded positively and isdoing well. I asked Itim if he ever though that he mighthave ADHD and he said he has though at times that hemight have. * * *"

[*P17] Dr. Brown reported another hospitalizationin about 1994 after he took a bunch of pills due to painand because he was separated from his wife. When askedif he was currently depressed, claimant said that he didnot think so but might be depressed without realizing it.He said he no longer had crying spells or thoughts aboutkilling himself. When asked if he got nervous, claimantanswered that, in some ways, he was "a little nervous"because, when he was growing up, he never couldmeasure up to his parents' expectations, and he tried to belike his twin brother butjust gave up.

2003 Ohio 6355, *P 17; 2003 Ohio App. LEXIS 5684, "*6

[*P]8] Claimant said he ltas a lifelong phobic fearof heights and that he gets anxiety attacks but not truepanic attacks. Claimant also stated that he suffered fromhot flashes that had been attributed to his [**7] epilepsy.Claimant denied obsession, compulsions, and excessiveworry, although he had guilt feelings about the domesticviolence against his wife in the past. He said he was inbetter control of his temper than in the past but could bereactive; claimant said that, while he did not alwaysrespond in a rational manner, he was "1,000"/o better." Healso stated that he was now tnore communicative andgetting away "from the backward stuff' and now feels

better about Itimself.

[*P19] Dr. Brown reported that, during theexamination, claimant related in a cooperative, friendlymanner and handled interpersonal communication well,smiling frequently and able to laugh. Speech wascoherent, spontaneous, and goal-directed. There was noevidence of thought disorder, hallucinations, or delttsions.Affect was somewhat bland but consistent with thecontent of thought. Dr. Brown found "no objectiveevidence of anxiety or depression."

[*P20] Claimant was oriented to time, place,person, and purpose of the examination, and he seemed tobe of average or low-average intelligence. He was able tocomprehend and reason during the examination.Attention span and ability to concentrate were withinnormal [**8] limits dttring the examination, and memorywas intact for recent and remote events. There was noevidence of organicity.

[*P21] In suinmm-izing his conclusions, Dr. Brownnoted at the outset that claimant had a history ofsignificant developmental trattma, with longstandingfeelings of insecurity and inadequacy, and that claimanthad struggled throttghout his life. Dr. Brown discussedhis conclusions as follows:

[*P22] "* * * He developed epilepsy at an early agewith significant emotional impact upon him andespecially in conjttnction with his academic troubles andhis chronic sense of failure. He apparently grew up in arather violent household and according to his twin wasfrequently scapegoated resulting in angry outbursts of hisown that became most prominent during the early yearsof his marriage and continued until he went into an angermanagement program. He has either consciouslysuppressed or unconsciously repressed much of hismemories of his childhood though his amnesia could

Page 3

partially be mediated by his epileptic condition whichalso could have impacted his tendency towards anger andthe other cognitive deflcits he is reporting at this time. Isuspect that he has [**9] throughout his life hadundiagnosed Attention-Deficit Hyperactivity Disorder,combined type and some underlying fortn of mooddisorder or again the condition could have beenaggravated by his epileptic condition. I feel that hishistory is consistent with long-standing anxiety,depression, and low self-esteem plus his life has beenimpacted by all the other factors noted above and that theaggravation of his preexisting depression caused by theeffects of his industrial injury has not been a major factorand would suggest that as he has felt stress at variouswork situations that he has tended to withdraw from thatstress as he may have from the stress of his family oforigin and which became a personality n'ait for him butnow is more comfortable at hotne and taking care of hisgrandson. * * "

[*P23] Dr. Brown stated that he did not agree thatthe problems with metnory, irritability, anddecision-making were causally related to the industrialinjury but were caused by factors before the injury. Heconcluded that the "allowance of aggmvation ofpreexisting depression would not prevent him fromretuming to his former position of employment or otherforms of sustained remttnerative [**10] employment."Dr. Brown opined that claimant's depression hadimproved as a result of taking care of his grandson,whom they had adopted. Dr. Brown opined that claimanthad a Class II level of psychological impairment, whichwas "moderate" and estimated itnpairment at 25 percent.

[*P24] 6. In November 2001, claimant filed a May2001 report from a psychologist, Jennifer J. Stoeckel,Ph.D., who set forth a history as well as her evaluation ofhis mental status, including results of the MinnesotaMultiphasic Personality Inventory-2 ("MMPI-2") test sheadministered. Dr. Stoeckel concluded that "Mr. Tharpwould be considered totally disabled in light of hisphysical and emotional impairment and that thisdisability would likely persist for a minimum of twelvemonths," and that claimant was not "emotionally capableof managing" employment even if sedentary.

[*P25] 7. Other reports in the file include reportsfrom John Roberts, M.D., James Hawkins, M.D.,Giovanni Bonds, Ph.D., and Joseph Thomas, M.D.

[*P26] 8. On December 3, 2001, an employability


assessment was provided by Donna B. Taylor, whoconcluded that claimant's age was not a barrier toemployment. She opined that [** I I] education and workhistory were positive factors. Ms. Taylor determined thatclaimant had skills in precision wiring, quality assurance,and product testing that would transfer to light andsedentary levels of exertion. She further opined thatclaimant's post-secondary education increased hismarketability.

[*P27] Ms. Taylor concluded that, if thecommission accepted the functional capacities as set forthby Dr. Brown, there were several occupations thatclaimant could perform itnmediately and additional jobsthat he could perform with brief training. If thecommission accepted the functional capacities as foundby Dr. Lutz, there were also occupations that claimantcould perform immediately and with training. Ms. Taylorconcluded that if the commission accepted the opinion ofDr. Roberts or Dr. Hawkins, claimant was notemployable in any occupation. Ftnther, Ms. Taylorconclttded that, if the commission accepted the fttnctionalcapacities as assessed by Dr. Stoeckel, claimant couldprobably obtain a job after 12 months but would not beable to sustain eniployment over time. Finally, Ms.Taylor concluded that, if the commission were to acceptthe opinion of Dr. Thomas, an orthopedist, [**12]claitnant cottld perfortn the same jobs as listed for Dr.Lutz's opinion.

[*P28] Ms. Taylor noted that claimant's descriptionof his prior jobs indicated that he could not return to hisprevious employment, which had required substantialstanding, and she also noted that there was no indicationthat he had attempted any sedentary employment.

[*P29] Ms. Taylor provided the followingdiscussions in response to questions from the

commission:

[*P30] " * * He had pre-existing conditions ofDepression and a seizure disorder, and was grantedHandicap Reimbursement at 50 % for psychoneuraticdisorder and epilepsy. (There is an adolescent history of asuicidal attempt and psychiatric hospitalizations,although he currently receives no mental healthtreatment.) He also had a fractured left foot as anadolescent when he fell from a window whilecontemplating suicide. Dr. Brown suspected anundiagnosed Attention-Deficit Hyperactivity Disorder. *+ i

[*P31] "* * *

Page 4

[*P32] "Academic remediation should not benecessary based upon the claimant's college level work.Dr. Brown and Dr. Hawkins opined that Mr. Tharp wasof average to low average intelligence, and that hisattention [**l3] span and memory were intact, solearning new job skills should not be difficult, despite hissttbjective complaints of memory problems (dating backto age 21 when he was reportedly assaulted by policeofficers.) Dr. Brown found concentration was preserved,but Dr. Hawkins did not, and also noted that theclaimant's pace, persistence, and the ability to adapt tostressful sintations had declined.

[*P33] °* * *

[*P341 "Althottgh he is allowed to drive, he shotddavoid ttnprotected heights due to his seizttre disorder. Hewould be unable to obtain employment in jobs requiring aclean police record as he has been convicted of dntgpossession (1978), and was incarcerated for domesticviolence 2 or 3 times. (Reportedly, he has had a lifelongproblem with anger control, although this has improvedsince he participated in an anger management class.) Mr.Tharp performs his activities of daily living, and assistswith light household chores (although this is contradictedby Dr. Stoeckel who was also unaware of the extent ofhis legal history). Mr. Tharp spends most of his timecaring for his adopted grandson who is under 2-years old.(This includes taking him for walks.) Dr. Stoeckel [** 14]administered the Minnesota Multiphasic PersonalityInventory-2 to the claimant, and his profile suggested thathe was histrionic, and would tend to over-react to minorstressors in his environment. Therefore, inherentlystressfitl tasks should be avoided."

[*P35] 9. On December 21, 2001, Dr. Stoeckelprovided an additional report in which she explained whyclaimant could not psychologically sustain competitiveemployment, and she clarified that the disability waspermanent in that it would last for a minimum of 12months withottt any improvement.

[*P36] 10. In Febmary 2002, the commissiongranted leave for claimant to take Dr. Brown's deposition,based on the disparity between his opinion and Dr.Hawkins' opinion, and the deposition proceeded in May2002. When asked to account for the symptoms observedby Dr. Hawkins eight months before his ownexamination, Dr. Brown opined that claimant's beneficial


relationship with his grandson could account for theimprovement during the eight-month period between thetwo examinations. Dr. Brown explained that claimantseemed to be more positive about the future since hebegan spending time with his grandson, which Dr. Brownthought [** 15] was giving claimant a sense of purpose inlife. Also, he acknowledged that he and Dr. Hawkins maysimply have come to different conclusions. He noted thatDr. Hawkins appeared to differ as to which symptomswere causally related to the indttstrial injury and whichsymptoms were unrelated. For example, Dr. Brown statedthat "some of the symptoms that [claimant] presented, Ithink, are from factors totally separate from hisdepression, which was not Dr. Hawkins' opinion. ***So, I'm trying to give my view of how I saw it."

(*P37] Dr. Brown acknowledged that, in his writtenreport, 'he attributed some of the current behavioralsymptoms to preexisting psychological or medical'problems for which claimant was treated prior ro hisindustrial injury. He opined that sotne of the depressionwas unrelated to the industrial injury and, also, that someof the current symptoms were caused by conditions other

than depression.

[*P38] When Dr. Brown was asked whether hetried to separate the preexisting level of depression fromthe level of the aggravation of preexisting depression, Dr.Brown answered, in part:

[*P39] "Wetl, I don't tend - I do that to a degree, butI don't look [**16] at it that way. I try to look at thedegree of depression and then try, in my discussion, todescribe what I think may have contributed to thisdepression. And then I feel it really boils down to anadministrative decision, for somebody to look at this dataand the other data and say, This is what makes sense tome.

[*P40] "So yott know, it used to be, way back, youtried to say, you know, ten percent to this and ten percentto that. That's really not possible in a lot of situations. SoI've been more inclined over the last few years to rely onthe discussion and then give an opinion on a percentageas requested.

[*P41] "I did seem to be trying to parse things herea bit one to the other in looking at my discussion.

[*P42] " * *

Page 5

[*P43] "So I'm trying to give my view of how I sawit. The claimant really had a lot of depression prior to hisinjury and, obviously, pain wottld cause people to bemore depressed.

[*P44] "You know, so I don't know that I can put apercentage on it, but I did say I didn't think that themajority of his depression was the result of the injuryitself. * * " Depo. at 15-17.

[*P45] When Dr. Brown was asked abottt hisassessment [**17] of "moderate impairment" andwhether he believed that claimant actually had a higherpercentage of impairment but that the increasedimpairment was due to the preexisting factors rather thanthe aggravation, Dr. Brown answered that he assessed themoderate level of impairment considering all the factors.He referred back to his prior discussion, indicating that hewill give a percentage estimate as required but relies onhis discussion of all the contributing factors, leaving it tothe commission to detennine how much disability shouldbe attributed to the different factors.

[*P46] Dr. Brown acknowledged that a moderateimpairment of 25 to 30 percent is compatible with some,but not all, useful functioning. In regard to hisconclusions, Dr. Brown explained that claimant describedhimself as feeling down and tired but not suicidal.Claimant was able to drive and take care of himself andhis grandson. Claimant said he had little social life buthad described himself as having never had much sociallife in the first place. Dr. Brown explained that it wouldbe reasonable to assume that, when a depressed person isin pltysical pain, there would be some regression,possibly some worsening [**18] of depression.However, he stated that, during the examination therewas no objective evidence of depression. Claimant smiledfrequently, laughed, and was friendly and cooperative. Hereported some symptoms of depression but indicated thathe was not as depressed as he formerly had been.

[*P47] In addition, Dr. Brown noted claimant'sstatements about not being able to concentrate and focus,but he commented that "I didn't personally think that wasprobably the depression. I felt that was undiagnosedADHD." Dr. Brown explained that, in his practice heworked with children, adolescents and adults who haveADHD, so he was more likely to ask questions aboutADHD than the average psychiatrist or psychologist. Hesaid that some examiners do not set forth histories thatare equally derailed. Dr. Brown refused to agree that his


comments were speculative, explaining as follows:

[*P48] "Well, you know, it was never diagnosed.

He gave me a family history of ADHD. He gives meADHD symptoms dttring his childhood and adolescence

when he was in school. It may well have contributed to

some of his academic problems.

[*P49] "I'm inclined to think it's more than asuspicion, but that's [** 19] my way of thinking." Depo.

at 21.

[*P50] Last, Dr. Brown reiterated that a return towork could improve claimant's sense of purpose andself-esteem, but he acknowledged that if an injuredworker is unable to work, it can affect him emptionallyand catrse him to be depressed.

[*P51] ll. In August 2002, the PTD applicationwas heard by a staff hearing officer ("SHO"), who

accepted the medical opinion of Dr. Lutz as to claimant'sphysical capabilities. With respect to the claimant'spsychological condition, the SHO discussed the opinionof Dr. Brown as follows, in pertinent part:

[*P52] "* * * Dr. Brown completed anOccupational Activity Assessment form which heattached to that report wherein he indicated that theclaimant is capable of returning to any former position ofemployment as well as any other fonn of sustainedremunerative employment considering the allowedpsychological condition. The claimant was permitted todepose Dr. Brown. In tlte deposition, Dr. Brown clarifiedthat he considered the claimant's psychologicalfunctioning and impairment without separating thepre-existing and current levels of depression. Dr. Brown

stated that he rated the claimant's level [**20] ofdepression, considering all of the factors, regardless ofwhat pre-existed the injury. He further clarified that theclaimant's moderate level of impairment considering theallowed psychological condition is compatible withsome, but not all, usefitl functioning. Dr. Brown opinedthat the claimant is able to take care of himself, drive anatttomobile, and take care of his needs on a daily basis.He further opined that the claimant has less socializationdue to his absence from work. Dr. Brown further opinedthat the claimant may suffer deterioration were he to beplaced in a work environment and experience physicalpain. However, he further opined that a return to workmay benefit the claimant psychologically by improving

his perception of his self-worth."

Page 6

[*P53] The SHO concluded that claimant wasrestricted to sedentary employment within the limitationsstated in the definition of such employment, and furtherfound that the allowed psychological condition did notprevent claimant from returning to sustainedremunerative employment that he was otherwise qualifiedto perform. Next, the SHO tumed to the nonmedicalfactors and concluded that claimant was able to engage insustained [**21] remunerative employment as follows:

[*P54] "An employability assessment of theclaimant was perPormed by Ms. Taylor at the request ofthe Industrial Commission. Ms. Taylor opined that basedon the residual functional capacities as expressed by Dr.Brown and Dr. Lutz, the claimant has the followingemployment options: small products assembler,surveillance system monitor, product inspector, andcashier. Ms. Taylor noted the claimant's age of 46 andstated that he is categorized as a younger person. Ms.Taylor opined that such age is not a limitingre-employment factor. She further noted the claimant'sO.E.D. certificate and attendance of 1-1/2 years ofcollege. Ms. Taylor noted that the claimant became acomputer technician through training. Ms. Taylor opinedthat the claimant's post-secondary education increases hismarketability over less edttcated workers. She furtherreviewed the claimant's work experience and opined thatthe claimant acquired skills in his past employment, suchas in precision wiring, quality assurance, and producttesting. Ms. Taylor further opined that the claimantshould not need academic remediation based on his pastacademic experience.

[*P55] [**22] "The Staff Hearing Officer findsthat the claimant is 46 years old, has a high school leveleducation with 1-1/2 years of college training and workexperience as a computer technician, electric motorassembler and tester, machine threader and machinist.The Staff Hearing Officer finds that the claimant's age isan asset which would enable him to adapt to new workntles, processes, methods, and tools involved in a newoccupation. The Staff Hearing Officer further finds thatthe claimant's education is an asset which increases hismarketability over less educated workers. The StaffHearing Officer further finds that the claimant's workexperience was performed at a skilled level ofemployment and provided the claimant with suchtransferable skills as: precision wiring, quality assurance,and product testing. Considering the claimant's age,education, and work experience in conjunction with the


limitations related to the allowed conditions, the Staff

Hearing Officer finds that the claimant is able to perform

the occupations noted in the vocational report of Ms.

Taylor such as: small products assembler, surveillancesystem monitor, product inspector, and cashier.Accordingly, the Staff [**23] Hearing Officer finds that

the claimant is able to engage in sustained remunerativeemployment "

Conclusions of Law

[*P56] Claimant challenges the denial of PTD

compensation, raising three issues: (1) that thecommission abused its discretion in relying on Dr.Brown's report and testimony because his testimony wasinconsistent, in that he repudiated his earlier opinions orrendered equivocal opinions; (2) that the commissionabused its discretion in relying on Dr. Brown's opinionsbecatise he relied on the existence of a disablingnonallowed condition that had not been formallycliagnosed and was merely spectdative; and (3) that thecommission abused its discretion in relying on Ms.Taylor's report because she relied on inforination in theclaim file that the commission in its PTD order did notadopt.

[*P57] Several established principles apply to thecourt's consideration. First, it is fundamental that thecommission's award of disability compensation must bebased exclusively on allowed conditions. E.g., State e.xreL Chrysler Corp. v. tndus. Comm. (1998), 81 OhioSt.3d 158, 1998 Ohio 460, 689 N.E.2d 951. In other

words, an award of compensation cannot be based [**24]even in part on a nonallowed condition. See, e.g., State ex

rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452,

619 N.E.2d 1018; State ex rel. Erico Ptroducls, 6re. v.Indus. Cointn. (1994), 70 Ohio St.3d 661, 1994 Ohio 155.

640 N.E.2d 824. Accordingly, a medical report basingdisability even in part on a nonallowed condition cannotconstitttte "sotne evidence" to support an award ofcompensation. E.g., State ex rel. Shields v. Indus. Comm.(1996), 74 Ohio St.3d 264, 268. 1996 Ohio 140. 658N.E.2d 296.

[*P58] However, the presence of a disablingnonallowed condition does not preclude a PTD award.Compensation may be awarded where allowed conditionssupport PTD regardless of the existence of a nonallowedcondition that also causes impairment. The question forthe commission is whether the allowed condition, in andof itself, resulted in PTD, independent of the nonallowed

Page 7

condition. Waddle; State ex re1. tVicholson v. CopperweldSteel Co. (1996), 77 Ohio St.3d 193, 1996 Ohio 198, 672NE.2d 657; State ex rel. Qaarto Mining Co. v. Foreinan(1997), 79 Ohio St.3d 78, 1997 Ohio 71, 679 N. E.2d 706;State ex rel. Byt•d v. Am. Std., Inc. (1997), 78 Ohio St.3d504, 1997 Ohio 187, 678 N.E.2d 1376. [**25]

[*P59] For example, where a ctaim is allowedsolely for an aggravation of a pre-existing condition, thecommission may award compensation based only uponthe allowed condition. Chrysler Corp., supra. That is, thecommission may award compensation only wheredisability has resulted from the allowed aggravation ofthe preexisting condition. [d at 167.

[*P60] Depending on the facts in the individualcase, an aggravation may or may not cause disability thatis cotnpensable. It is clear, however, that there are caseswhere the aggravation, in and of itself, renders theclaimant disabled. Id at 166-168. Where a physicianrenders an opinion that the allowed aggravation, in and ofitself, has caused the claimant to be unable to work, thecommission has discretion to accept the physician's6pinion and attribute disability to the aggravation. Id.

[*P61] With respect to the evidentiary value ofmedical reports, the magistrate notes that the commissionis the finder of fact and has sole authority to determinethe credibility and weight of the evidence, includingmedical reports. See, e.g., State ex rel.Burtey v. CoilPacking, Inc. (1987), 31 Ohio St.3d 18, 31 Ohio B. 70,

508 N.E.2d 936; [**26] State ex rel. Teece v. Indns.Coinm. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433.However, in soine circumstances, a medical report mustbe removed from evidentiary consideration because itcannot constitute "some evidence" as a tnatter of law. Forexample, a report may be barred from considerationwhere a reporting physician has not accepted theallowance of all conditions recognized in the claim,although a medical report is not barred from constituting"some evidence" because a doctor finds no currentevidence of an allowed condition. State ex rel. Foley v.Vulcan Mjg. Co. (1998), 84 Ohio St.3d 59, 1998 Ohio308, 701 N.E. 993; State ex rel. Domjancic v. Indus.Comtn. (1994), 69 Ohio St3d 693, 1994 Ohio 95, 635A! E. 2d 372.

[*P62] Sometimes the commission will explicitlystate in its decision that it has rejected a report, eitherbecause it finds the report unpersuasive or because itbelieves that the report mttst be removed from evidentiary


consideration as a matter of law. In other cases, the court

in mandamus removes a report from evidentiary

consideration because it cannot constitute "someevidence" as a matter of law. E.g., Shields, supra. [**27]

[*P63) For example, a medical report based onnonallowed conditions, even in part, is not evidence onwhich the coinmission may rely, as indicated above.Fttrther, a medical opinion cannot constitute "someevidence" if it is intemally inconsistent or equivocal, anda medical opinion is fatally equivocal where thephysician repttdiates his earlier opinion or contradicts itin a later report or in deposition testimony. E.g., State ex

rel. Owens-Corning Fiberglas Corp. v. Indus. Coanm.(1994), 70 Ohio St.3d 263, 1994 Ohio 398, 638 N.E.2d

565; State eT rel. Eberhardt v. F&ible Corp. (1994), 70

Ohio St.3d 649, 640 N.E.2d 815; State ee rel. Lopez v.

Indns. Comtn. (1994), 69 Ohio St.3d 445, 1994 Ohio 458,633 NE.2d 528; State ex ret. hlalinowski v. Hordis Bros.,Inc. (1997), 79 Ohio St.3d 342, 1997 Ohio 383, 681

N E.2d 921; Chrysler Corp., supra; State ex rel. Jennings

v. Indus. Comm. (1982), 1 Ohio St. 3d 101, 1 Ohio B.135, 438 N.E.2d 420; State e.r reL Paragon v. Indus.

Comm. (1983), 5 Ohio St. 3d 72, 5 Ohio B. 127, 448

N.E.2d 1372. However, when a doctor has made astatement that is uncertain or unclear, he may clarify it ina stibsequent explanation, [**28] and the commissionmay rely on the medical opinion as clarified. E.g.,Eber-hardt.

[*P64] The magistrate recognizes that there may besittmtions where an expert witness has relied on medicalinformation or a medical opinion in the claimant's file.Where the information or opinions on whiclt the experthas relied are subsequently rejected by the commission orare reinoved from evidentiary consideration by the cottrt,the expert's opinion may also be subject to removal fromevidentiary consideration, entirely or in part, dependingon the circuntstances. See State ex reL Maxey v. MIIKiechler Mjg. Co., Franklin App. No. 02AP-129, 2002

Ohio 5966. For example, where a vocational expert basespart of her report on a medical report that the court laterremoves from evidentiary consideration, that part of thevocational expert's report cannot constitute evidence onwhich the commission may rely. Id.

[*P65] In the present action, claimant argues thatthe medical opinion of Dr. Brown was equivocal, in thathe repudiated earlier opinions or contradicted himself.The magistrate accepts that some statements made by Dr.

Page 8

Brown could appear to be somewhat unclear or equivocal[**29] when viewed in isolation. However, upon readingDr. Brown's report and his deposition testimony in theirentirety, and upon reading the other psychological reportsin the record, the magistrate finds no basis to remove Dr.Brown's report from evidentiary consideration as a matterof law. Dr. Brown set forth in detail his ftndings andopinions, and the magistrate finds them sufficiently clearto permit consideration by the finder of fact. -

[*P66] The magistrate notes that Dr. Brown wasasked a series of questions about separating the effect ofthe altowed aggravation of preexisting depression and theeffect of the preexisting factors. Dr. Brown explainedthat, to him, this is more of a legal concept than a medicalone, and he indicated that it can be difficult to give amedical opinion as to exactly how much of a person'sfunctional impairment should be attributed to the allowedcondition as opposed to a nonallowed or disallowedcondition that is closely related. Dr. Browti explainedthat, formerly, doctors were asked to assess a percentagefor different contributing factors but that he foand that tobe problematic. He indicated that he preferred to providea thorough discussion [**30] of all the factors that hebelieved were contributing to the person's impairmentand then let the commission ultimately determine howmuch, or the extent to which, the allowed conditions wereresponsible for disability. Dr. Brown explained the basisof his medical opinions in detail. For example, in hiswritten report, he noted that claimant's memory problemshad been attributed to his epilepsy and that claimant hadrecently been told he had suffered two blackouts of whichhe had no recollection. Further, claimant attributed hismemory problems to an assault by police. In his writtenreport, Dr. Brown also indicated that claimant haddescribed symptmns of ADHD. When questioned aboutthis in the deposition, Dr. Brown explained the basis ofhis belief that claimant suffered from undiagnosedADHD, and he affirmed that it was "more than asuspicion."

[*P67] In general, the court does not "secondguess" medical opinions from medical experts and willremove a medical opinion from evidentiary considerationas having no value only when the report is patentlyillogical or contradictory even to a layperson, or for asimilar patent defect such as relying on a nonallowedcondition. See, [**31 ] e.g., State ex rel. Young v. Indns.Comtn. (1997), 79 Ohio St.3d 484, 1997 Ohio 162, 683NE.2d 1145; State e.e rel. Consolidation Coal Co. v.

2003 Ohio 6355, *P67; 2003 Ohio App. LEX[S 5684, **31

Indus. ComJn. (1997), 78 Ohio St.3d 176, 1997 Ohio 46,677 N.E.2d 338; State ex re(. Taylor v. Indus. Cornin.(1995). 71 Ohio St.3d 582, 645 ME.2d 1249; Lopez;Shields, supra. Overall, the inagistrate finds Dr. Brown'sexplanations to be within the boundaries ofreasonableness and consistency, and rejects the argumentthat his opinions must be retnoved from consideration ashaving no evidentiary value as a matter of law.

[*P68] Next, the magistrate addresses the report ofMs. Taylor. Claimant argues that her report must beremoved from evidentiary consideration becattse sherelied on an MMPI-2 test administered by Dr. Stoeckel.The inagistrate agrees that Ms. Taylor, in opining as tothe type of jobs that wottld be appropriate for claimant,commented that claimant should avoid "inherentlystressful tasks," and that she based this opinion at least inpart on the MiviPI-2.

[*P69] The magistrate finds no improperconsideration of Dr. Stoeckel's report by Ms. Taylor. InIrer employability assessment, Ms. [**32] Taylor notedthat Dr. Stoeckel appeared to be unaware of some facts inclaimant's history, and, accordingly, Ms. Taylor indicatedthat she did not accept some of Dr. Stoeckel's opinions.Nonetheless, Ms. Taylor did recite one of the resttlts ofthe MMPI-2 administered by Dr. Stoeckel. However, Ms.Taylor provided her own interpretation of that score,setting forth the relatively obvious recommendation thatclaimant should avoid work that is inherently stressful.Given the record in this case, the magistrate sees noreason to remove Ms. Taylor's report from evidentiaryconsideration because she stated that the claimant shouldavoid inherently stressfitl work, based in part on anMMPI-2 score in claimant's file. This is not a case wherethe court has ruled that the Stoeckel report cannotconstitute "some evidence" as a matter of law, nor is thisa case where the commission expressly found theStoeckel testing to be unreliable. Cf. Maxey, supra.

[*P70] Claimant further challenges the job optionsthat Ms. Taylor listed according to the various doctors'restrictions. With respect to this argument, the magistrateaccepts the proposition that, where a vocationalconsultant has stated [**33] job options for claimant bylisting job titles with accompanying code numbers fromthe Dictionary of Occupational Titles ("DOT"), andwhere the consultant also states that these jobs are withina doctor's medical restriction to sedentary work, andwhere a review of the cited job titles plainly reveals that

Page 9

these jobs require light or medium strength according tothe DOT, then the court may find the consultant's list ofjob options to be internally inconsistent with thesupposed reliance on the doctor's restrictions, and the listof job options must then be removed from evidentiaryconsideration. In other words, the cottrt witl remove fromevidentiary consideration a vocational consultant's list ofjob options where the claimant establishes that theconsultant has listed job options that, according to herown source, are plainly beyond the claimant's medicalcapacity as accepted by the consultant for that list.

[*P71] Here, however, Ms. Taylor never said shewas relying on the DOT. Accordingly, the magistraterejects the argument that Ms. Taylor's list is defectivebecause, according to elaimaot, jobs in the DOT that"may correspond to her listings" all require light strength.

[**34] [*P72] Here, Ms. Taylor listed job titlesand numbers, citing a source called "O*Net," whichclaitnant states in mandamus is an internet site. Claimantprovides copies from that website to support his claims.Claimant alleges, however, that Ms. Taylor's citations tocode numbers from O*Net are factually incorrect.Claimant alleges that her code numbers do notcorrespond with classifications in O*Net, but, instead,Ms. Taylor's citations refer to labor classifications inanother internet site called "Labor Market Information"or "LMI," which is maintained by the Ohio Departmentof Job and Family Services. Further, claimant asserts thatLMI classifications do not include specific ratings forstrength categories. If claiinant is right, then it is notpossible to determine, by reviewing the LMIclassifications, whether Ms. Taylor's opinion is correct orincorrect that the listed jobs are within Dr. Lutz'sliinitation to sedentary work.

[*P73] In an appendix to his brief, claintantprovides numerous pages copied from the websites,including a page describing the "Occupational CodeCrosswalk" and pages regarding "Data and Pttblications,""Analyses," "Occttpations & Wages," "Labor [**35]Force & Unemployment," "Employment, Wages, Hours& Earnings; "'Occtipational Employment Statistics," anda page headed "Occupational Codes, Titles, andDefinitions with [illegible] to wages, skill sets and CareerTabloid."

[*P74] The magistrate reaches several conclusions.First, even if the court accepts claimant's representationsabout these two websites and accepts claimant's


documents attached to the brief, the documents establishat most that Ms. Taylor intended to cite LMI rather thanO*Net because her numbers f1t LMI classifications. Thus,claimant has proved at most that Ms. Taylor cited codesfrom LMI but mistakenly cited O*Net, which is simply acitational mistake. Claimant has not proved, however,that Ms. Taylor listed job options as sedentary that herown authority plainly states are not sedentary. Claimanthas not proved that none of the jobs identified by Ms.Taylor are sedentary. In sum, claimant has not presenteda clear defect in mandamus that requires the court toremove the Taylor report from evidentiary consideration

as a matter of law.

[*P75] Second, and in the alternative, thetnagistrate concludes that claimant shottld have presentedthis argument [**36] and these documents to the finderof fact in the first instance, or, in the altemative, claimantshould have sought to take Ms. Taylor's deposition toclarify the actual basis of her opinions. See, generally,State ex rel. Katnp v. iLlia+ni Mm-garine Co. (June 19,1997), Franklin App. No. 96AP-1317 (adoptingNlagistrate's Decision Apr. 30, 1997). If these docutnentsand this information had been presented to thecommission, either in the PTD hearing or in a reqttest fordeposition, the commission could have made findings offact and the court would have a basis for review inmandatnus. Instead, claimant asks the cburt to makedeterminations that should have been placed before the

Page 10

commission for determination in the first instance. In thealtemative, claimant could have sought a deposition inwhich Ms. Taylor could have been challenged and givenan opportunity to explain the basis of her opinions, as theclaimant did in Katnp.

[*P76] In conclusion, the magistrate observes thatthe role of the court in a mandamus action is limited. Anorder supported by "some evidence" must be ttpheld,regardless of whether the record includes other evidence,greater in quantity and/or quality, [**37] that supportsthe contrary decision. State ex rel. Pass v. C.S.T.Extraction Co. (1996), 74 Ohio St.3d 373, 376. 1996Ohio 126, 658 N.E.2d 1055. In the subject order, claimanthas not proved that the commission failed to cite "someevidence" in support of its decision. Accordingly, themagistrate recommends denial of the subject writ.

[*P77] The magistrate concludes that claimant hasnot met his burden of proving an abuse of discretion bythe cotnmission and accordingly recommends that thecourt deny the requested writ.

/s/P. A. Davidson

P. A. DAVIDSON

MAGISTRATE

ORCAnn. 3309.15 (2008)

§ 3309.15. Investment and fiduciary duties of board

(A) The members of the school employees retirement board shall be the trustees of the funds created by section3309.60 ojthe Revised Code. The board shall have full power to invest the funds. The board and other fiduciaries shalldischarge their duties with respect to the funds solely in the interest of the participants and beneficiaries; for theexclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses ofadministering the school employees retirement system; with care, skill, prudence, and diligence under the circumstancesthen prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct ofan enterprise of a like character and with like aims; and by diversifying the investments of the system so as to mittimizethe risk of large losses, unless under the circumstances it is clearly prudent not to do so.

29 USCS§!l04

Review expert commentary from The National Institute for Trial Advocacy following 29 USCS § t! 09 (relating to

liability for breach of fiduciary duty).

§ 1104. Fiduciary duties

(a) Prudent man standard of care.(1) Subject to sections 403(c) and (d), 4042, and 4044 [29 USCS§§ 1103(c), (d), 1342, 1344J, a fiduciary shall

discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and--(A) for the exclusive purpose of:

(i) providing benefits to participants and their beneficiaries; and(ii) defraying reasonable expenses of administering the plan;

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting ina like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with likeaims;

(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under thecircumstances it is clearly prudent not to do so; and

(D) in accordance with the documents and instruments goveming the plan insofar as such documents andinstruments are consistent with the provisions of this title and title IV.

ORCAnn.3309.0I (2008)

§ 3309.01. Definitions

As used in this chapter:

(U) "Fiduciary" means a person who does any of the following:

(I) Exercises any discretionary authority or control with respect to the management of the system, or withrespect to the management or disposition of its assets;

(2) Renders investment advice for a fee, direct or indirect, with respect to money or property of the system;

(3) Has any discretionary authority or responsibility in the administration of the system.

29 USCS § 1002

Review expert commentary from The National Institute for Trial Advocacy following 29 USCS § 1109 (relating to

liability for breach of fiduciary duty).

§ 1002. Definitions

For nurooses.pf_,th,is. title:(21) (A) Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent

(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercisesany authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee orother compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority orresponsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration ofsuch plan. Such term includes any person designated under section 405(c)( l)(B) [29 USCS § 1105(c)(1)(B)].

§ 3309.39. Disability coverage; election of coverage; application for benefit; duty to obtain treatment; restoration toactive service

(C) Medical examination of a member who has applied for a disability benefit shall be conducted by a competentdisinterested physician or physicians selected by the retirement board to determine whether the member is mentally orphysically incapacitated for the performance of the member's last assigned primary duty as an employee by a disablingcondition either permanent or presumed to be permanent for twelve continuous months following the filing of anapplication. Such disability must have occurred since last becoming a member or have increased since last becoming amember to such extent as to make the disability permanent or presumed to be permanent for twelve continuous monthsfollowing the filingof an.application.

(E) If the physician or physicians determine that the member qualifies for a disability benefit, the retirement boardconcurs with the determination, and the member agreea to medical treatment as specified in division (F) of this section,the member shall receive a disability benefit under section 3309.40 or 3309,40! [3309.40.1] of rhe Revrsed Code. Theaction of the board shall be final. At the time the board decides it concurs with the determination of the physician orphysicians, the board shall determine the date on which the member was first incapacitated by the disabling condition.

Documents

F I -^ CD...Appx. Pg. Notice of Appeal to the Ohio Supreme Coui-t (July 7, 2008) .....I Opinion of the Franklin County Court of Appeals (June 10 Judgment Entry of the Franklin County