[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys. , Slip Opinion No. 2021-Ohio-4030.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -4030
T HE S TATE EX REL
. P OWELL , A PPELLANT , v . O HIO P UBLIC E MPLOYEES
R ETIREMENT S YSTEM , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys. , Slip Opinion No. 2021-Ohio-4030.] Public retirement systems—Disability benefits—When there is some evidence to support an administrative body’s deci sion, a reviewing court will not disturb the decision—A party ordinarily may not present on appeal an argument that it failed to raise below—Court of appeals’ judgment affirmed. (No. 2021-0395—Submitted September 7, 2021—Decided November 16, 2021.)
A PPEAL from the Court of Appeals for Franklin County, No. 19AP-600, 2021-Ohio-920.

__________________ Per Curiam.S UPREME C OURT OF O HIO

2 {¶ 1} Appellant, Michael Ray Powell Jr ., sought a writ of mandamus fr om the Tenth District Court of App eals compelling appellee, the Oh io Public Employees Retirement System (“OPERS”), to reverse its denial of Powell’s application for disability benefits. The Tenth District denied the writ because OPERS’s decision was supported by evidence in the record. Powe ll appealed. We affirm the Tenth District’s judgment.
I.FACTS AND PROCEDURAL HISTORY {¶ 2} Powell worked for the state as a highway technician. His dutie s included operating heavy equipment, removing snow and ice from highways, inspecting construction to ensure contractor compliance with st ate standards, maintaining highway roads and br idges, and maintaining equipmen t. He sustained injury in October 2015 when he fell off a ladder at work and hi t his head. He applied to OPERS f or disability benef its in November 2017. {¶ 3} R.C. 145.35 provides for disability -retirement benefits payable to eligible OPERS members who suffered an on-duty illness or injur y. R.C. 145.35(E)
states that an OPERS member

shall receive a disability benef it * * * if all of the followin g apply: (1) The board’s examining phys ician determin es that the member qualifies for a disability benefit and the board’s medic al
consultant concurs wit h the determination; (2) The board concurs with the medical consultant’s determination; (3) The member agrees to medical treatment as specified in [R.C. 145.35(F)].

The disability determination hinges on whether the OPERS member is “mentally or physically incapable of performing the duties of the most re cent public positionJanuary Term, 2021

3 held by the member” as a result of “a disabling condition eithe r permanent or presumed to be permanent,” i.e., the disabling condition is “ex pected to last for a continuous period of not less than twelve months following the filing of the application.” Id

. {¶ 4} When it considered Powell’s app lication, OPERS had before it th e reports of several physicians. {¶ 5} Powell’s treating physician, Dr. W. Jerry Mysiw, wrote that Pow ell complained of migraines and neck and shoulder pain. Dr. Mysiw diagnosed Powell with “[i]ntractible migraine w ithout aura and without status mi grainous.” His report also referred to “post c oncussive Cervicogenic daily mig raines.” He stated that Powell’s prognosis for recove ring from his disabling condi tion was “[f]air at present,” but he nevertheless opi ned that he considered Powell permanently disabled from working in his last public-employment position. {¶ 6} OPERS had also referred Powell for an independent medical examination (“IME”) conducted by Dr. Gerald Steiman. In his re port, Dr. Steiman wrote that Powell complained of two types of headaches: migrain es, which began behind one of his eyes and which Powell was able to abort withi n minutes of onset using a lidocaine nasal spray; and cervicogenic headaches, whic h began in Powell’s neck and upper back and lasted longer. Dr. Steiman also wrote that the eligible diagnosis for purposes of disab ility benefits was intractable m igraines without aura and without status migrainosus and that although Powell suffere d from multiple conditions, Dr. Steima n had considered only the eligible diagno sis in his disability determination. After examining Powell and reviewing his medica l history and job description, Dr. Ste iman opined that Powell was not permanently disabled because the eligible diagnosis of intract able migraine was easily contr olled with medication. {¶ 7} OPERS subsequently asked Dr. Steiman to consider Powell’s cervicogenic headaches as migraines and to restate his opinion. Dr. Steiman provided a short supplemental opinion in which he stated that a fter he consideredS UPREME C OURT OF O HIO

4 Powell’s cervicogenic headaches as migraines, “Powell’s history , medical record review, and physical examination provide credible evidence he i s not disabled from his occupation as a public employee.” {¶ 8} Also before OPERS was a repor t by Managed Medical Review Organization (“MMRO”), with which OPERS contracts to manage its disability claims. The MMRO report, which w as signed by its medical direc tor, Dr. Jeffrey Deitch, contained a review of Po well’s medical history, includi ng Dr. Mysiw’s and Dr. Steiman’s reports, and reco mmended that OPERS deny Powell’s application for disability benefits. Additionally, OPERS’s medical advisor , Dr. Maurice Mast, recommended that OPERS deny Powe ll’s application due to insuffi cient objective evidence of permanent disab ility on account of the eligible con dition. {¶ 9} OPERS followed these recommend ations and denied Powell’s application. Powell appealed t hat decision. When it considere d Powell’s appeal,
OPERS had before it all the evid ence described above, plus the report of a second IME, conducted by Dr. Kenneth Mankow ski. After examining Powel l and reviewing his medical records, D r. Mankowski opined that Powell was not permanently disabled because his migraines were episodic and tr eatable and because his cervicogenic headaches, which were also episodic an d treatable, had
resolved themselves within three months of Powell’s injury. Dr . Mankowski based this latter conclusion on the mechanism and severity of Powell’ s injury, the nature of the cervicogenic condition, and the lack of objective eviden ce of the condition’s
existence at the time of his examination. {¶ 10} MMRO reviewed the above eviden ce and recommended, in a report signed by Dr. Deitch, that OPERS uphold its denial of Powell’s application, based on the opinions of Drs. Steiman and Mankowski. Dr. Mast concur red, and OPERS upheld its denial. Powell filed a request to reopen the applic ation, but OPERS rejected the request.January Term, 2021

5 {¶ 11} Powell filed a complaint for a writ of mandamus asking the Tent h District Court of Appeals to issue a writ compelling OPERS to r everse its denial of his application. The Tenth Distr ict denied the writ, finding t hat OPERS’s decision was supported by some evidence in t he record. Powell appealed.
II. ANALYSIS
A. Mandamus Standard {¶ 12} A writ of mandamus is the appropr iate remedy if OPERS abused it s discretion by denying Powell’s application for disability benef its. State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys. , 144 Ohio St.3d 367, 2015-Ohio3807, 43 N.E.3d 426, ¶ 16. OPERS abuse d its discretion if it e ntered an order that was not supported by some evidence. Id . at ¶ 17. “Only if the [OPERS] board’s decision is not supported by any evidence will mandamus lie.” (Emphasis sic.) Id

. “[T]he presence of contrary evidence is immaterial if there is evidence in support of the board’s findings of fact.” State ex rel. Kolcinko v. Ohio Police & Fire
Pension Fund , 131 Ohio St.3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 9.
B. Some Evidence {¶ 13} The Tenth District correctly c oncluded that OPERS’s decision to deny Powell’s application for disability benefits was supported by some evidence, specifically (1) Dr. Steiman’s opi nion that Powell was not perm anently disabled because his migraines were easily treatable and his cervicogeni c headaches were not disabling, (2) Dr. Mankowski’ s opinion that Powell’s migrai nes were episodic and treatable and that his cervicogenic headaches had subsided, (3) Dr. Deitch’s recommendations on behalf of MMRO that Powell was not disabled, based on
MMRO’s review of Powell’s medical records, and (4) Dr. Mast’s r ecommendations that the application be de nied on the same basis. {¶ 14} Powell argues that OPERS may not ignore evidence that is favora ble to him, such as his own physic ian’s opinion. But there is no e vidence that OPERSS UPREME C OURT OF O HIO

6 ignored Dr. Mysiw’s opinion; to the contrary, his reports were referred to in Dr.
Steiman’s and Dr. Mankowski’s r eports as well as MMRO’s report. {¶ 15} Powell then asserts that the IME system is inherently biased ag ainst claimants, though he offers no evidence in support of this alle gation. OPERS points
out that Powell waived his inhere nt-bias argument by not raisin g it before the Tenth
District. See State v. Wintermeyer , 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10 (“a party ordinarily may not present an argume nt on appeal that it failed to raise below”). But eve n if Powell has not waived tha t argument, it is
meritless. {¶ 16} R.C. 145.35(E) provides that OPERS shall grant Powell disabilit y benefits only if (1) OPERS’s e xamining physician (in this case, Dr. Steiman or Dr. Mankowski) determines that he qua lifies for benefits, (2) the b oard’s medical consultant (in this case, Dr. Mast) concurs, and (3) the OPERS board itself also concurs. Those statutory require ments were indisputably not me t here, and we may not alter or ignore them. {¶ 17} Consistent with the above, we hav e held that OPERS “does not ab use its discretion by accepting the opinion of its reviewing physic ian over that of the claimant’s treating physician.” Woodman , 144 Ohio St.3d 367, 2015-Ohio-3807, 43 N.E.3d 426, at ¶ 18. And with respect to the reviews by MMR O and Dr. Mast, “a medical expert’s file review can constitute ‘some evidence’ supporting the denial of disability compensation. * * * The medical opinion expresse d, when drawn from a review of all the evidence, is itself some evidence that the board can rely on in reaching a decision.” (Emphasis sic.) State ex rel. Wegman v. Ohio Police & Fire
Pension Fund , 155 Ohio St.3d 223, 2018-Ohio-4243, 120 N.E.3d 786, ¶ 18.
C. Fiduciary Duty and Evid.R. 403 {¶ 18} Powell’s principal argument on appeal is that OPERS should have
discounted Dr. Steiman’s and Dr . Mankowski’s opinions. He argu es (1) that OPERS owes him a fiduciary duty, (2) that because OPERS owes hi m a fiduciaryJanuary Term, 2021

7 duty, it must apply Evid.R. 403 and disregard evidence that is more prejudicial than probative, and (3) that in accordance with Evid.R. 403, Dr. Ste iman’s and Dr. Mankowski’s opinions must be excl uded because they are more pre judicial than probative (and so, presumably, MMRO’s and Dr. Mast’s opinions, which rely on the opinions of Drs. Steiman and Ma nkowski, must be excluded). {¶ 19} Powell’s argument overlooks t he fact that R.C. 145.35(E) requires OPERS to consider the opinions o f its examining physicians. Mo reover, no authority supports his argument, which means that he cannot est ablish entitlement
to a writ of mandamus. See State ex rel. Domhoff v. Ohio Pub. Emps. Retirement Sys. Bd. , 140 Ohio St.3d 284, 2014-Ohio-3688, 17 N.E.3d 569, ¶ 13 (rela tor must establish a clear legal right to relief). And we may not creat e the right that is
enforceable in a mandamus action. State ex rel. Pipoly v. State Teachers Retirement Sys. , 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. 1. Fiduciary Duty {¶ 20} Powell bases his fiduc iary-duty argument on the portion of R.C.
145.36 that states that the membe rs whom OPERS determines quali fy for disability benefits “shall be retired on disability.” However, nothing in R.C. 145.36 mentions a fiduciary duty, let alone imposes one on the OPERS board with respect to its
determination of Pow ell’s disability-benefits application. {¶ 21} Powell next analogizes the OPERS board to fiduciaries who gover n benefit plans under the federal Employee Retirement Income Secu rity Act (“ERISA”), citing federal case la w setting forth, in general te rms, the duty of
ERISA fiduciaries to “see tha t those entitled to benefits recei ve them,” Gaither v. Aetna Life Ins. Co. , 394 F.3d 792, 807-808 (10th Cir.2004). But Gaither also notes the duty of ERISA fiduciaries “to protect the plan’s assets aga inst spurious claims.”
Id . at 807. More to the point, th is court has made it clear that ERISA does not apply
to OPERS. Erb v. Erb , 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996) (“Congress expressly exempted government re tirement systems * * * from ERI SA’s scope”).S UPREME C OURT OF O HIO

8 {¶ 22} Powell has not established the ex istence of a fiduciary duty th at is
enforceable in mandamus in this case.
2. Evid.R. 403 {¶ 23} OPERS correctly points out that Powell raised the argument that
Evid.R. 403 bars consideration of Dr. Steiman’s and Dr. Mankows ki’s opinions for the first time in his Tenth District reply brief. OPERS assert s that we need not consider the argument, citing State ex rel. Grounds v. Hocking Cty. Bd. of Elections , 117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 24, in wh ich we noted, in an original action filed in this court, that a party is not per mitted to raise new arguments in its reply brief. OPERS acknowledges, though, that the Tenth District did address Powell’s Evid.R. 403 argument. We will therefore c onsider it; however, we find it meritless. {¶ 24} Evid.R. 403 states that evidence must be excluded if its probat ive value is substantially outweighe d by the danger of unfair preju dice. The only authority that Powell cites in support of his argument that OPE RS must refuse to consider some medical opinions is the existence of the fiduciar y duty discussed
above. He asserts that for the s ome-evidence standard to have meaning, OPERS must disregard any evidence that is more prejudicial than proba tive; otherwise, OPERS would not be fulfilling its fiduciary duty to Powell. Bu t as explained above,
Powell has not established the ex istence of the duty that his a rgument is premised
on. Nor has he established a ny authority connecting Evid.R. 40 3 to any such duty,
and we cannot mint such a conne ction in this mandamus case. {¶ 25} Because some evidence supports OPERS’s decision and Powell has not established that any eviden ce should have been excluded fro m OPERS’s consideration, we conc lude that the Tenth D istrict correctly de nied the writ.
III. CONCLUSIONJanuary Term, 2021

9 {¶ 26} In light of the foregoing, we aff irm the Tenth District’s judgm ent. 1 Judgment affirmed.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

_________________ Law Offices of Gary A. Reeve a nd Gary A. Reeve, for appellant. Dave Yost, Attorney General, and Samuel A. Peppers III and Mary Therese J. Bridge, Assistant Attorney s General, for appellee.

_________________

1. The header of Powell’s merit brief includes a parenthetical request for oral argument; he otherwise presents no argument on the subject, and he did not f ile a motion for oral argument. A request for oral argument in a direct appeal shall be by motion . S.Ct.Prac.R. 17.02(B). And the granting of an oral argument in a direct appeal is discretionar y. S.Ct.Prac.R. 17.02(A). We deny Powell’s request.