[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Powell v. Ohio Pub. Emps. Retirement Sys., Slip Opinion No. 2021-Ohio-4030.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-4030

THE STATE EX REL. POWELL, APPELLANT, v. OHIO PUBLIC EMPLOYEES 

RETIREMENT SYSTEM, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Powell v. Ohio Pub. Emps. Retirement Sys., Slip 

Opinion No. 2021-Ohio-4030.] 

Public retirement systems—Disability benefits—When there is some evidence to 

support an administrative body’s decision, a reviewing court will not 

disturb the decision—A party ordinarily may not present on appeal an 

argument that it failed to raise below—Court of appeals’ judgment 

affirmed. 

(No. 2021-0395—Submitted September 7, 2021—Decided November 16, 2021.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 19AP-600, 2021-Ohio-920. 

__________________ 

Per Curiam.
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{¶ 1} Appellant, Michael Ray Powell Jr., sought a writ of mandamus from 

the Tenth District Court of Appeals compelling appellee, the Ohio 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. Powell appealed. We 

affirm the Tenth District’s judgment. 

I.FACTS AND PROCEDURAL HISTORY

{¶ 2} Powell worked for the state as a highway technician. His duties 

included operating heavy equipment, removing snow and ice from highways, 

inspecting construction to ensure contractor compliance with state standards, 

maintaining highway roads and bridges, and maintaining equipment. He sustained 

injury in October 2015 when he fell off a ladder at work and hit his head. He 

applied to OPERS for disability benefits in November 2017. 

{¶ 3} R.C. 145.35 provides for disability-retirement benefits payable to 

eligible OPERS members who suffered an on-duty illness or injury. R.C. 145.35(E) 

states that an OPERS member 

shall receive a disability benefit * * * if all of the following apply: 

(1) The board’s examining physician determines that the 

member qualifies for a disability benefit and the board’s medical 

consultant concurs with the determination; 

(2) The board concurs with the medical consultant’s 

determination; 

(3) The member agrees to medical treatment as specified in 

[R.C. 145.35(F)]. 

The disability determination hinges on whether the OPERS member is “mentally 

or physically incapable of performing the duties of the most recent public position 
January Term, 2021 

3

held by the member” as a result of “a disabling condition either permanent or 

presumed to be permanent,” i.e., the disabling condition is “expected to last for a 

continuous period of not less than twelve months following the filing of the 

application.” Id. 

{¶ 4} When it considered Powell’s application, OPERS had before it the 

reports of several physicians. 

{¶ 5} Powell’s treating physician, Dr. W. Jerry Mysiw, wrote that Powell 

complained of migraines and neck and shoulder pain. Dr. Mysiw diagnosed Powell 

with “[i]ntractible migraine without aura and without status migrainous.” His 

report also referred to “post concussive Cervicogenic daily migraines.” He stated 

that Powell’s prognosis for recovering from his disabling condition was “[f]air at 

present,” but he nevertheless opined that he considered Powell permanently 

disabled from working in his last public-employment position. 

{¶ 6} OPERS had also referred Powell for an independent medical 

examination (“IME”) conducted by Dr. Gerald Steiman. In his report, Dr. Steiman 

wrote that Powell complained of two types of headaches: migraines, which began 

behind one of his eyes and which Powell was able to abort within minutes of onset 

using a lidocaine nasal spray; and cervicogenic headaches, which began in Powell’s 

neck and upper back and lasted longer. Dr. Steiman also wrote that the eligible 

diagnosis for purposes of disability benefits was intractable migraines without aura 

and without status migrainosus and that although Powell suffered from multiple 

conditions, Dr. Steiman had considered only the eligible diagnosis in his disability 

determination. After examining Powell and reviewing his medical history and job 

description, Dr. Steiman opined that Powell was not permanently disabled because 

the eligible diagnosis of intractable migraine was easily controlled with medication. 

{¶ 7} OPERS subsequently asked Dr. Steiman to consider Powell’s 

cervicogenic headaches as migraines and to restate his opinion. Dr. Steiman 

provided a short supplemental opinion in which he stated that after he considered 
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Powell’s cervicogenic headaches as migraines, “Powell’s history, medical record 

review, and physical examination provide credible evidence he is not disabled from 

his occupation as a public employee.” 

{¶ 8} Also before OPERS was a report by Managed Medical Review 

Organization (“MMRO”), with which OPERS contracts to manage its disability 

claims. The MMRO report, which was signed by its medical director, Dr. Jeffrey 

Deitch, contained a review of Powell’s medical history, including Dr. Mysiw’s and 

Dr. Steiman’s reports, and recommended that OPERS deny Powell’s application 

for disability benefits. Additionally, OPERS’s medical advisor, Dr. Maurice Mast, 

recommended that OPERS deny Powell’s application due to insufficient objective 

evidence of permanent disability on account of the eligible condition. 

{¶ 9} OPERS followed these recommendations and denied Powell’s 

application. Powell appealed that decision. When it considered Powell’s appeal, 

OPERS had before it all the evidence described above, plus the report of a second 

IME, conducted by Dr. Kenneth Mankowski. After examining Powell and 

reviewing his medical records, Dr. Mankowski opined that Powell was not 

permanently disabled because his migraines were episodic and treatable and 

because his cervicogenic headaches, which were also episodic and treatable, had 

resolved themselves within three months of Powell’s injury. Dr. Mankowski based 

this latter conclusion on the mechanism and severity of Powell’s injury, the nature 

of the cervicogenic condition, and the lack of objective evidence of the condition’s 

existence at the time of his examination. 

{¶ 10} MMRO reviewed the above evidence and recommended, in a report 

signed by Dr. Deitch, that OPERS uphold its denial of Powell’s application, based 

on the opinions of Drs. Steiman and Mankowski. Dr. Mast concurred, and OPERS 

upheld its denial. Powell filed a request to reopen the application, but OPERS 

rejected the request. 
January Term, 2021 

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{¶ 11} Powell filed a complaint for a writ of mandamus asking the Tenth 

District Court of Appeals to issue a writ compelling OPERS to reverse its denial of 

his application. The Tenth District denied the writ, finding that OPERS’s decision 

was supported by some evidence in the record. Powell appealed.

II. ANALYSIS

A. Mandamus Standard 

{¶ 12} A writ of mandamus is the appropriate remedy if OPERS abused its 

discretion by denying Powell’s application for disability benefits. State ex rel. 

Woodman v. Ohio Pub. Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio3807, 43 N.E.3d 426, ¶ 16. OPERS abused its discretion if it entered an order that 

was not supported by some evidence. Id. at ¶ 17. “Only if the [OPERS] board’s 

decision is not supported by any evidence will mandamus lie.” (Emphasis sic.) Id. 

“[T]he presence of contrary evidence is immaterial if there is evidence in support 

of the board’s findings of fact.” State ex rel. Kolcinko v. Ohio Police & Fire 

Pension Fund, 131 Ohio St.3d 111, 2012-Ohio-46, 961 N.E.2d 178, ¶ 9. 

B. Some Evidence 

{¶ 13} The Tenth District correctly concluded that OPERS’s decision to

deny Powell’s application for disability benefits was supported by some evidence, 

specifically (1) Dr. Steiman’s opinion that Powell was not permanently disabled 

because his migraines were easily treatable and his cervicogenic headaches were 

not disabling, (2) Dr. Mankowski’s opinion that Powell’s migraines were episodic 

and treatable and that his cervicogenic headaches had subsided, (3) Dr. Deitch’s 

recommendations on behalf of MMRO that Powell was not disabled, based on 

MMRO’s review of Powell’s medical records, and (4) Dr. Mast’s recommendations 

that the application be denied on the same basis. 

{¶ 14} Powell argues that OPERS may not ignore evidence that is favorable 

to him, such as his own physician’s opinion. But there is no evidence that OPERS 
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ignored Dr. Mysiw’s opinion; to the contrary, his reports were referred to in Dr. 

Steiman’s and Dr. Mankowski’s reports as well as MMRO’s report.

{¶ 15} Powell then asserts that the IME system is inherently biased against 

claimants, though he offers no evidence in support of this allegation. OPERS points 

out that Powell waived his inherent-bias argument by not raising it before the Tenth 

District. See State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 

N.E.3d 278, ¶ 10 (“a party ordinarily may not present an argument on appeal that it 

failed to raise below”). But even if Powell has not waived that argument, it is 

meritless. 

{¶ 16} R.C. 145.35(E) provides that OPERS shall grant Powell disability 

benefits only if (1) OPERS’s examining physician (in this case, Dr. Steiman or Dr. 

Mankowski) determines that he qualifies for benefits, (2) the board’s medical 

consultant (in this case, Dr. Mast) concurs, and (3) the OPERS board itself also 

concurs. Those statutory requirements were indisputably not met here, and we may 

not alter or ignore them. 

{¶ 17} Consistent with the above, we have held that OPERS “does not abuse 

its discretion by accepting the opinion of its reviewing physician over that of the 

claimant’s treating physician.” Woodman, 144 Ohio St.3d 367, 2015-Ohio-3807, 

43 N.E.3d 426, at ¶ 18. And with respect to the reviews by MMRO and Dr. Mast, 

“a medical expert’s file review can constitute ‘some evidence’ supporting the denial 

of disability compensation. * * * The medical opinion expressed, when drawn from 

a review of all the evidence, is itself some evidence that the board can rely on in 

reaching a decision.” (Emphasis sic.) State ex rel. Wegman v. Ohio Police & Fire 

Pension Fund, 155 Ohio St.3d 223, 2018-Ohio-4243, 120 N.E.3d 786, ¶ 18. 

C. Fiduciary Duty and Evid.R. 403

{¶ 18} Powell’s principal argument on appeal is that OPERS should have

discounted Dr. Steiman’s and Dr. Mankowski’s opinions. He argues (1) that 

OPERS owes him a fiduciary duty, (2) that because OPERS owes him a fiduciary 
January Term, 2021 

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duty, it must apply Evid.R. 403 and disregard evidence that is more prejudicial than 

probative, and (3) that in accordance with Evid.R. 403, Dr. Steiman’s and Dr. 

Mankowski’s opinions must be excluded because they are more prejudicial than 

probative (and so, presumably, MMRO’s and Dr. Mast’s opinions, which rely on 

the opinions of Drs. Steiman and Mankowski, must be excluded). 

{¶ 19} Powell’s argument overlooks the fact that R.C. 145.35(E) requires

OPERS to consider the opinions of its examining physicians. Moreover, no 

authority supports his argument, which means that he cannot establish entitlement 

to a writ of mandamus. See State ex rel. Domhoff v. Ohio Pub. Emps. Retirement 

Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, 17 N.E.3d 569, ¶ 13 (relator must 

establish a clear legal right to relief). And we may not create the right that is 

enforceable in a mandamus action. State ex rel. Pipoly v. State Teachers Retirement 

Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. 

1. Fiduciary Duty 

{¶ 20} Powell bases his fiduciary-duty argument on the portion of R.C.

145.36 that states that the members whom OPERS determines qualify for disability 

benefits “shall be retired on disability.” However, nothing in R.C. 145.36 mentions 

a fiduciary duty, let alone imposes one on the OPERS board with respect to its 

determination of Powell’s disability-benefits application. 

{¶ 21} Powell next analogizes the OPERS board to fiduciaries who govern 

benefit plans under the federal Employee Retirement Income Security Act 

(“ERISA”), citing federal case law setting forth, in general terms, the duty of 

ERISA fiduciaries to “see that those entitled to benefits receive them,” Gaither v. 

Aetna Life Ins. Co., 394 F.3d 792, 807-808 (10th Cir.2004). But Gaither also notes 

the duty of ERISA fiduciaries “to protect the plan’s assets against spurious claims.” 

Id. at 807. More to the point, this court has made it clear that ERISA does not apply 

to OPERS. Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996) (“Congress 

expressly exempted government retirement systems * * * from ERISA’s scope”). 
SUPREME COURT OF OHIO

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{¶ 22} Powell has not established the existence of a fiduciary duty that 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. Mankowski’s opinions for 

the first time in his Tenth District reply brief. OPERS asserts that we need not 

consider the argument, citing State ex rel. Grounds v. Hocking Cty. Bd. of Elections, 

117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 24, in which we noted, in 

an original action filed in this court, that a party is not permitted to raise new 

arguments in its reply brief. OPERS acknowledges, though, that the Tenth District 

did address Powell’s Evid.R. 403 argument. We will therefore consider it; 

however, we find it meritless. 

{¶ 24} Evid.R. 403 states that evidence must be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice. The only 

authority that Powell cites in support of his argument that OPERS must refuse to 

consider some medical opinions is the existence of the fiduciary duty discussed 

above. He asserts that for the some-evidence standard to have meaning, OPERS 

must disregard any evidence that is more prejudicial than probative; otherwise, 

OPERS would not be fulfilling its fiduciary duty to Powell. But as explained above, 

Powell has not established the existence of the duty that his argument is premised 

on. Nor has he established any authority connecting Evid.R. 403 to any such duty, 

and we cannot mint such a connection in this mandamus case. 

{¶ 25} Because some evidence supports OPERS’s decision and Powell has 

not established that any evidence should have been excluded from OPERS’s 

consideration, we conclude that the Tenth District correctly denied the writ. 

III. CONCLUSION
January Term, 2021 

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{¶ 26} In light of the foregoing, we affirm the Tenth District’s judgment.1

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, 

and BRUNNER, JJ., concur. 

_________________ 

Law Offices of Gary A. Reeve and Gary A. Reeve, for appellant. 

Dave Yost, Attorney General, and Samuel A. Peppers III and Mary Therese 

J. Bridge, Assistant Attorneys General, for appellee. 

_________________ 

1. The header of Powell’s merit brief includes a parenthetical request for oral argument; he 

otherwise presents no argument on the subject, and he did not file a motion for oral argument. A 

request for oral argument in a direct appeal shall be by motion. S.Ct.Prac.R. 17.02(B). And the 

granting of an oral argument in a direct appeal is discretionary. S.Ct.Prac.R. 17.02(A). We deny 

Powell’s request.