[Cite as State ex rel. Lowe v. Ohio Pub. Emps. Retirement Sys., 2014-Ohio-4773.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Uneek V. Lowe, : 

 Relator, : No. 13AP-627 

 

v. : (REGULAR CALENDAR) 

 

[Ohio Public Employees Retirement : 

System], 

 : 

 Respondent. 

 : 

 

D E C I S I O N 

Rendered on October 28, 2014 

 

Uneek V. Lowe, pro se. 

Michael DeWine, Attorney General, and Matthew T. Green, 

for respondent. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, J. 

{¶ 1} Relator, Uneek V. Lowe, brought this original action requesting a writ of 

mandamus ordering respondent, Ohio Public Employees Retirement System ("OPERS"), 

to vacate its decision terminating her disability benefits and to enter a decision reinstating 

disability benefits. 

I. Procedural History 

{¶ 2} Under Civ.R. 53 and Section (M), Loc.R. 13 of the Tenth Appellate District, 

this matter was referred to a magistrate who issued a decision that is appended to this 

decision. The magistrate determined: (1) the OPERS Board of Trustees ("board") was 

not required to determine whether the alleged disabling medical conditions prevent 
No. 13AP-627 2 

relator from performing her recent position at Fifth Third Bank; (2) none of the medical 

reports need be eliminated from evidentiary consideration due to an alleged failure of the 

examining physician to show sufficient knowledge of relator's job duties at the Hamilton 

County Department of Job and Family Services ("HCDJFS"); and (3) there is some 

evidence in the record supporting the board's presumed determination based upon 

pertinent R.C. 145.362 examinations, that relator is no longer physically and 

psychologically unable to perform her former position at HCDJFS upon which her 

disability benefit was premised. Accordingly, the magistrate determined the requested 

writ should be denied. 

II. Objections 

{¶ 3} Relator filed objections to the magistrate's decision. These were not 

separately numbered, but rather contained in a somewhat free flowing 21-page document. 

From our review of this document, relator raises the following issues: 

1. Respondent abused its discretion by using the wrong job 

description for relator's private part-time job with Fifth Third 

Bank. 

2. Respondent did not take into account relator's public job 

duties with HCDJFS when it terminated her disability 

benefits. 

3. Respondent failed to consider relator's Attention Deficit 

Hyperactivity Disorder ("ADHD"), her Arnold Chiari 

Malformation, and her need for accommodations when it 

terminated her disability benefits. 

4. The magistrate erred in finding there was some evidence 

that relator is no longer physically and psychologically unable 

to perform her former position at HCDJFS. 

III. Private Sector Job Description 

{¶ 4} While receiving disability benefits from OPERS and the Social Security 

Administration, relator took a part-time position with Fifth Third Bank embossing credit 

cards. (Magistrate's decision, 6.) Some time after she took the job, relator submitted a 

form for an employment review to determine whether the part-time job would result in 

the termination of benefits. OPERS' third-party administrator, Managed Medical Review 
No. 13AP-627 3 

Organization ("MMro"), conducted an assessment of the job duties of relator's last public 

position as a Program Technician 2 for HCDJFS and her part-time position for Fifth Third 

Bank. The MMro's assessment overlapped relator's annual medical review. 

{¶ 5} The MMro found similarities between the work activities in each job. 

Relator has identified mistakes in the MMro's assessment of her work with the private 

sector employer. For example, the assessment states: "Helps w/tutoring of the students. * 

* * Organizes all group meetings, activities and special trips." (R. 276.) Relator is correct 

that this part of the MMro's assessment describing the part-time position at Fifth Third 

Bank is in error. 

{¶ 6} Nevertheless, the argument is without merit. The part-time job description 

is not relevant to the core issue in this case which is "whether the disability benefit 

recipient is no longer physically and mentally incapable of resuming the service from 

which the recipient was found disabled." See R.C. 145.362. The part-time job description 

is not related to relator's annual medical review for a disability determination. The 

medical doctors were asked to base their review on her public employment job 

description. Neither the medical doctors nor the board relied on the reemployment 

assessment when deciding whether relator was permanently disabled. Therefore, even if 

there were errors in the MMro's assessment, any such error is harmless as it does not 

relate to the issue of whether relator is capable of resuming her public service. 

IV. Public Job Description 

{¶ 7} With respect to her public sector job with HCDJFS, relator contends that 

OPERS failed to take into account her public job duties when it terminated her disability 

benefits. 

{¶ 8} Our independent review shows that the record is replete with references to 

relator's public sector job. The job description is set forth in full in the magistrate's 

decision. The doctors who conducted relator's medical assessments stated they were 

familiar with her responsibilities at HCDJFS, reviewed her job description, and in several 

instances, recounted in detail relator's history at HCDJFS. The MMro's assessment also 

sets forth a correct description of relator's duties at HCDJFS. 

{¶ 9} There is no merit to this objection. 

V. ADHD, Arnold Chiari Malformation, and the need for accommodations
No. 13AP-627 4 

{¶ 10} Relator argues there was no evidence that her Attention Deficit Disorder 

was viewed or considered as part of the decision to terminate her disability benefits. 

Again, the record belies this assertion. The following quotes are a sample of the 

documentation of relator's diagnosis of ADD or ADHD. Robert Krikorian, PhD, 

conducted a neuropsychological evaluation of relator in 2011 and wrote further in 2012 

commenting on the findings of the neuropsychological evaluation. He stated: "Our 

evaluation indicated that you have deficits of attention and executive ability, among 

others." (R. 475.) He also stated, "you described in particular being overwhelmed and 

ineffective when working as a technician for Hamilton County Job and Family Services. 

You cited the volume of work as a major difficulty in that position. Your experiences with 

that job would be consistent with the findings on our evaluation of attention and executive 

impairment." (R. 475.) He also states: "Ms. Lowe grew up with developmental cognitive 

disorder affecting attention and executive ability, which can be characterized as Attention 

Deficit Disorder." (R. 471.) 

{¶ 11} In January 2012, Leroy Vickers, M.D., wrote: "Ms. Lowe has chronic 

fibromyalgia, ADHD, some memory loss and at this time Ms. Lowe indicates, and I agree 

with her that she is permanently disabled but could return to work with Hamilton County 

with accommodations." (R. 468.) 

{¶ 12} In relator's examination by Michael Miller, M.D., he noted that "ADHD 

treatment is quite successful when it comes to the Adderall." (R. 411.) D. Ann Middaugh, 

M.D., M.S., noted that Adderall helped relator to concentrate, but that she stopped taking 

it until she started the job with Fifth Third Bank. (R. 418.) Thus, it appears that while 

relator had been diagnosed with ADHD, she was able to function successfully when she 

used the medication Adderall. 

{¶ 13} Contrary to relator's assertion, ADD and/or ADHD were viewed and 

considered as part of the decision to terminate benefits. This argument is without merit. 

{¶ 14} Relator also argues that her Arnold Chiari Malformation was not considered 

in the decision to terminate her disability benefits. Again, numerous references to the 

medical evidence in the record noted D. Ann Middaugh, M.D., M.S., wrote, "[s]he has an 

asymptomatic Chiari-I malformation discovered by MRI scan. This is a congenital 

condition in which the cerebellar tonsils descend into the upper cervical canal 
No. 13AP-627 5 

anatomically. She has no physical correlation for these findings." (R. 421.) Other reports 

indicated "very mild symptomology," (R. 331.) "minimally, if at all, symptomatic," (R. 

340.) and that her malformation was "thought to be minimally symptomatic by previous 

neurological evaluation." (R. 357.) 

{¶ 15} Relator contends that she is unable to resume her prior public service 

because HCDJFS refused her request for reasonable accommodations. 

{¶ 16} Relator has conflated her claim against HCDJFS for disability 

discrimination under the Americans with Disabilities Act ("ADA") with her claim that she 

is unable to resume her public service. The ADA defines "disability" as: (A) a physical or 

mental impairment that substantially limits one or more of the major life activities of such 

individual; (B) a record of such an impairment; or (C) being regarded as having such an 

impairment. 42 U.S.C. 12102(2). The standard used by the board in this case is "whether 

the disability benefit recipient is no longer physically and mentally incapable of resuming 

the service from which the recipient was found disabled." See R.C. 145.362. 

{¶ 17} The standard used to determine whether relator is entitled to a writ of 

mandamus is whether there is some evidence to support the board's decision. 

{¶ 18} Relator's claim that she is disabled because she was denied reasonable 

accommodations is not well-taken. 

VI. Some Evidence 

{¶ 19} In order to obtain a writ compelling the board to vacate its decision to 

terminate her disability benefits, relator must show that the board abused its discretion by 

entering an order that is not supported by some evidence. State ex rel. Marchiano v. 

School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 20-21; Kinsey v. Bd. 

of Trustees of Police and Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d 

224, 225 (1990); State ex rel. Schaengold v. Pub. Emps. Retirement Sys., 114 Ohio St.3d 

147, 2007-Ohio-3760, ¶ 19. 

{¶ 20} Six different medical doctors determined that relator is not disabled from 

her most recent public position with HCDJFS: Michael Miller, M.D.; D. Ann Middaugh, 

M.D.; Andrew Smith, M.D.; Mark Reynolds, M.D.; Jeffrey Deitch, D.O.; and Maurice 

Mast, M.D. That is some evidence to support the board's decision to terminate relator's 

disability benefits. 
No. 13AP-627 6 

VII. Conclusion 

{¶ 21} Based on our independent review under Civ.R. 53, we find the magistrate 

properly determined the relevant facts and applied the salient law to them. Accordingly, 

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

conclusions of law contained in it. Therefore, we overrule relator's objections and deny 

the requested writ of mandamus. 

Objections overruled; writ denied.

SADLER, P.J., and CONNOR, J., concur. 

_________________ 

 
No. 13AP-627 7 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

Uneek V. Lowe, 

 : 

 Relator, 

 : 

v. 

 : No. 13AP-627 

[Ohio Public Employees Retirement 

 System], : (REGULAR CALENDAR) 

 

 Respondent. : 

 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on July 15, 2014

 

Uneek V. Lowe, pro se. 

Michael DeWine, Attorney General, and Matthew T. Green, 

for respondent. 

 

IN MANDAMUS 

 

{¶ 22} In this original action, relator, Uneek V. Lowe, requests a writ of mandamus 

ordering respondent, Ohio Public Employees Retirement System ("OPERS"), to vacate its 

June 20, 2012 decision terminating disability benefits, and to enter a decision reinstating 

disability benefits. That is, relator requests that the writ order the Ohio Public Employees 
No. 13AP-627 8 

Retirement Board ("board") to vacate its June 20, 2012 decision and to enter a decision 

reinstating disability benefits. 

Findings of Fact: 

{¶ 23} 1. In May 2006, relator filed a disability benefit application on a form 

provided by OPERS. Relator had been employed by the Hamilton County Department of 

Job and Family Services ("HCDJFS"). Her position title was "CPA Specialist." Her 

classification title was "Program Technician 2." 

{¶ 24} 2. In May 2006, HCDJFS completed a form provided by OPERS captioned 

"Report of Employer for Disability Applicant." HCDJFS also provided a "position 

description" indicating that relator's job required her to perform the following tasks: 

60% [One] Determines eligibility for Healthy Start, Healthy 

Families and the Expedited Medicaid Programs. Conducts 

applications processing and gathers necessary information to 

make determination of program eligibility. Obtains 

necessary verifications required for program eligibility, 

follow-up with consumers by phone to clarify and verify 

eligibility. Completes face-to-face interviews with walk-in 

consumers. Inputs all documentation into computer system. 

20% [Two] Issues correspondence and completes follow-up. 

Maintains necessary records and data; responds to requests 

for information and all phone calls, e-mails, and faxes in a 

timely manner. 

10% [Three] Maintains awareness of all assistance programs 

and services offered by the agency. Enrolls and refers 

consumers for HMO enrollment process. Processes and 

completes special reports when necessary. 

5% [Four] Completes statistical reports of program/work 

activity. 

OTHER DUTIES AND RESPONSIBILITIES: 

3% [Five] Attends meetings, training and community 

presentations as required. 

2% [Six] Performs other related duties as assigned. 

POSITIONS SUPERVISED: 
No. 13AP-627 9 

None 

{¶ 25} 3. On May 10, 2006, attending physician and psychiatrist Jonathan 

Bernfeld, M.D., completed a "Report of Attending Physician for Disability Applicant" on a 

form provided by OPERS. 

{¶ 26} Section three of the form requests that the attending physician report his 

findings. 

{¶ 27} For his diagnoses, Dr. Bernfeld wrote: "Chronic Major Depression" and 

"Chronic Pain." 

{¶ 28} For the symptoms, Dr. Bernfeld wrote: "[I]rritability, pain, low energy, 

poor concentration, anxiety." 

{¶ 29} For the prognosis, Dr. Bernfeld wrote: "Arnold Chiari malformation [plus] 

syrinx causing chronic pain. Also fibromyalgia." 

{¶ 30} On the form, Dr. Bernfeld indicated by his mark that relator "is * * * 

considered to be permanently disabled." 

{¶ 31} 4. On July 17, 2006, at the request of OPERS, relator was examined by 

psychiatrist William Beatty, M.D. In his three-page narrative report, Dr. Beatty states: 

{¶ 32} Ms. Lowe states that she has essentially four conditions: 

[One] Attention Deficit Disorder with Hyperactivity 

[Two] Arnold-Chiari malformation 

[Three] Chronic Fatigue Syndrome 

[Four] Fibromyalgia. 

It is difficult to discern the exact boundaries of these 

diagnoses in describing her symptoms. She does experience 

chronic fatigue and does have generalized musculoskeletal 

pains nearly continuously. She also claims to have ADD and 

to be in need of accommodation for this in regard to work 

load. 

* * * 

For some reason Ms. Lowe has some dysphoric moods and 

apparently has had some major depressive episodes in her 

life leading to hospitalizations. This coupled with her 

volatility may suggest a "soft" Bipolar Disorder of a chronic 
No. 13AP-627 10 

nature. This is a relatively minor factor in her disability 

compared to the Arnold-Chiari malformation with its 

possibly causing or contributing phenomena of fatigue and 

chronic pain. ADD is a further issue. She has multiple 

stressors in her life including her son's behavioral problems, 

her finances, her single status and the possibility of 

litigation. She also states that she has lost her insurance 

including her life insurance and her car has been 

repossessed. She rarely has a good day but does occasionally 

enjoy her hobbies of sewing and making purses. She feels 

that her fatigue is the most debilitating of her problems and 

this is what really prevents her from returning to work. * * * 

It appears to me that Ms. Lowe has a legitimate, severe 

neurologic problem the surgical treatment for which is far 

from satisfactory. The exact relationship of this condition to 

her other illnesses is somewhat unclear to me but perhaps a 

neurologist or neurosurgeon could clarify this. Dr. Bernfeld 

implied that several of her symptoms were due to the 

Arnold-Chiari malformation. I would be inclined to accept 

this and consider that Ms. Uneek Lowe is permanently 

disabled mentally and physically for the performance of duty 

and should be entitled to an OPERS Disability benefit. It may 

be that OPERS would elect to seek statements from either 

Ms. Lowe's neurologist or neurosurgeon as to whether her 

Arnold-Chiari malformation is thought to be producing the 

fatigue and chronic pain. This also may be determined to be 

unnecessary. 

{¶ 33} 5. On August 18, 2006, at the request of OPERS, relator was examined by 

Marvin H. Rorick, M.D., who specializes in neurology. In his three-page narrative report, 

Dr. Rorick stated: 

Disability claimed by reason of: 

Inability to continue her type of work responsibility as she 

has done previously in the welfare office. The patient is a 

Medicaid eligibility technician. She stopped doing this type 

of work in 2004. * * * 

Diagnosis:

[One] Chiari Malformation Type I with cervical syrinx. 

[Two] Chronic tension headache. 

[Three] Major depression. 

[Four] Attention deficit hyperactivity syndrome. 
No. 13AP-627 11 

* * * 

Past History:

Notable for Attention deficit hyperactivity syndrome. 

The patient has apparently not received direct treatment for 

this disorder but has been treated with antidepressant 

medication in the past. She reports two hospitalizations for 

depression, the most recent of which occurred in the late 

1990's. 

She also reports that she had a Bell's palsy in 1999 with 

almost total recurrent function to the right side of the face. 

* * * 

From the stand point of the patient's Arnold chiari 

malformation type I and cervical syrinx, the patient has very 

mild symptomatology and has been advised not to have 

occipital decompressive surgery. The patient does have 

chronic headaches which maybe [sic] due to other causes. In 

addition, she has a significant underlying depression which 

is certainly worsened by her chronic daily pain. 

Unfortunately, it is impossible to predict the patient's 

reliability in a work place. 

She has already been disabled for greater than two years and 

appears unlikely to be able to resume that type of work 

activity that she previously performed. 

For the above reasons, the patient is presumed to be 

permanently disabled for the performance of duty and 

should be entitled to a disability benefit. 

{¶ 34} 6. By letter dated September 20, 2006, OPERS informed relator that the 

board had approved her disability application retroactive to February 1, 2005. 

{¶ 35} 7. In February 2008, May 2009, and October 2010, the board approved the 

continuation of benefits. Each time, relator was informed that continued receipt of 

benefits was conditioned upon her seeking psychiatric treatment. 

{¶ 36} 8. By letters dated October 3, 2011, OPERS informed relator that she was 

scheduled for two medical examinations—one by psychiatrist Michael E. Miller, M.D., and 
No. 13AP-627 12 

the other by Deborah Ann Middaugh, M.D., who specializes in internal medicine and 

occupation and environmental medicine. 

{¶ 37} 9. On October 17, 2011, relator was examined by Dr. Miller. In his eightpage narrative report, Dr. Miller states: 

EMPLOYMENT HISTORY

* * * She worked at Hamilton County Job and Family 

Services between 2000 and 2004, going out in 2004 on 

disability and being fired in 2005. 

* * * 

I reviewed Ms. Lowe's job description for Hamilton County 

Department of Job and Family Services. 

* * * 

DIAGNOSES

Axis I — Major Depressive Disorder, Recurrent, Mild 

(296.31) 

 Posttraumatic Stress Disorder (309.81) 

Axis II — Deferred 

Axis III — Chiari Malformation, Thalasemia, r/o 

Fibromyalgia 

Axis IV — Occupational problems 

Axis V — 62 

* * * 

Ms. Lowe is currently working 16 hours per week. She 

embosses credit cards for 5/3 Bank between 3:00 p.m. and 

7:00 p.m. This is described as a low stress position. She said 

she is able to concentrate and handle this job without any 

difficulty. She said that it is enjoyable and she works alone. 

Uneek took this job because she was in need of a greater 

income as her two disability incomes were considered to be 

insufficient. The employee told me that Social Security 

allows her to have a nine-month trial period and if she makes 
No. 13AP-627 13 

over $1,000.00 per month, she may lose her benefits (but 

could regain them if she does not continue employment). She 

also told me that OPERS was "okay" with this arrangement, 

as it did not include public service type employment. 

* * * 

Specifically, I do not feel her recurrent depression is 

disabling. The employee has had a very good response to 

Wellbutrin and voluntarily returned to work because of her 

financial needs. She is performing well at her position (16 

hours per week) and there is no reason to assume that this 

could not move to a full time, 40 hour per week, role. She is 

not clinically disabled. I see no reason that her previous type 

of work would be contraindicated. 

* * * 

She is receiving a combination of psychotherapy plus 

medication management to contain a depressive disorder. As 

is the case with recurrent depressions, she has periodic 

relapses. These are not considered to be work-prohibitive, 

however. The vast majority of people with depressive 

disorders are able to work * * *. 

{¶ 38} 10. On October 20, 2011, relator was examined by Dr. Middaugh. In her 

five-page narrative report, Dr. Middaugh states: 

Narrative Medical History: Ms. Lowe states that she has 

been on disability through OPERS from her job as a program 

technician for Hamilton County for the last 5 years. * * * 

Ms. Lowe was employed for a total of 4 years and 7 months 

for Hamilton County and was terminated in 2005. She was 

responsible for assessing eligibility for Medicaid and food 

stamps. She states that her job became increasingly busy and 

stressful. She had to interview clients, review their resources 

and income and refer paperwork for medical assessments. In 

addition to regular paperwork and scheduled appointments 

she was required to see walk-ins and states they were not 

allowed to wait more than 10 minutes. She felt she couldn't 

handle her case load and because of underlying ADHD asked 

her supervisor for accommodations. She states that she was 

then terminated after revealing that she had ADHD. 

* * * 
No. 13AP-627 14 

Medical Record Review: Medical records provided are 

quite limited. There is a job description for Hamilton County 

Department of Job and Family Services for the CPA 

Specialist Program Technician 2. This is consistent with her 

job description, conducting applications, processing and 

gathering necessary information for eligibility regarding 

Healthy Start, Healthy Families and expedited Medicaid 

programs. 

* * * 

Discussion: Uneek Lowe is a 55 year old woman with 

multiple somatic complaints of pain who has suffered for 

years with depression and also carries a diagnosis of ADHD. 

She appears to be under appropriate psychiatric treatment. 

She is reporting multiple somatic complaints and medical 

problems. She is status post Bell's palsy by history. She has 

an asymptomatic Chiari-I malformation discovered by MRI 

scan. This is a congenital condition in which the cerebellar 

tonsils descend into the upper cervical canal anatomically. 

She has no physical correlation for these findings. She gives a 

history of a spinal cord syrinx which is also asymptomatic. 

Ms. Lowe does have degenerative disc disease in her neck 

and is status post successful C5-6 anterior cervical fusion 

and has no neurological deficit and a normal examination. 

Ms. Lowe also has complaints of fibromyalgia syndrome with 

a normal examination and no trigger points. She has left 

shoulder complaints, a history of thalassemia and GI 

complaints. 

From the physical standpoint I see no disabling medical 

condition. 

Answers to Questions: 

* * * 

[Two] Per the OPERS definition of permanent disability, Ms. 

Lowe is not physically disabled from performing her 

occupation as a public employee. I see no physical condition 

that would interfere with any of her job related activities. 

[Three] I do not anticipate any significant physical change in 

her conditions within the next 12 months. 
No. 13AP-627 15 

[Four] I do not find any disabling physical diagnoses. 

[Five] There is no objective medical evidence from a physical 

standpoint to support disability. 

[Six] Ms. Lowe is receiving routine medical care for her 

physical complaints. 

[Seven] Her subjective complaints and symptoms far 

outweigh any objective clinical findings and are consistent 

with her psychiatric diagnosis of depression. 

[Eight] Her observed activities and behavior also do not 

correlate with objective clinical findings noting that she has a 

normal examination despite her multiple somatic 

complaints. 

{¶ 39} 11. On November 29, 2011, Managed Medical Review Organization 

("MMro"), the third-party administrator of OPERS' disability program, issued a report 

recommending termination of relator's disability benefit. The November 29, 2011 report 

indicates that the reports of Drs. Miller and Middaugh, as well as earlier medical reports, 

were reviewed. 

{¶ 40} 12. The record contains a one-page OPERS document captioned "Medical 

Advisor Board Recommendation (F-33)." The document, dated December 5, 2011, 

indicates that the "medical advisor" is "asmith." The document further states: 

"Disapprove - Found No Longer Disabled, Terminate Benefit." 

{¶ 41} 13. By letter dated December 15, 2011, OPERS informed relator: 

The Ohio PERS Retirement Board reviewed your disability 

benefit file including all medical documentation submitted in 

connection with your re-evaluation at the December 14, 2011 

board meeting. 

Based upon all the medical information and 

recommendations, the Ohio PERS medical consultants and 

the Board concluded that you are no longer considered to be 

permanently disabled from the performance of duty as a 

Program Technician 2. Therefore, your disability benefit will 

be terminated. 

You have a right to appeal the Board's termination of your 

disability benefit. If you wish to appeal this action, you may 
No. 13AP-627 16 

supply additional objective medical evidence, at your 

expense, to us as the basis of your appeal. 

* * * 

After you have submitted your additional medical evidence 

your information will be reviewed by our third party 

administrator Managed Medical Review Organization 

(MMro). MMro will evaluate your condition, which may 

require you to have an in-person medical examination with 

an independent medical examiner. 

{¶ 42} 14. Earlier, on October 4, 2011, relator completed a form provided by 

OPERS captioned "Employment Review for a Disability Benefit Recipient." (DR-2). The 

form instructs as follows: 

In order for OPERS to make an assessment of your reemployment request, please complete this form in its 

entirety and as accurately as possible. 

Employment after commencement of a disability benefit may 

impact your eligibility for that benefit. Disability benefit 

recipients who return to public employment are subject to 

immediate benefit termination. 

{¶ 43} On the form, relator indicated she is employed at Fifth Third Bank at 

Cincinnati, Ohio, through a temporary services company known as "Adecco." She listed 

the title of her position as: "Credit Card Production." 

{¶ 44} The form asks: "Has your attending physician approved this form of 

employment." Relator responded to the query by marking the "yes" box. Thereunder, 

relator wrote in her own hand: 

So long as it remains part-time. I work from 3 pm-7 pm. I 

work with a few employees in a quiet environment that isn't 

very distracting, or pressure [and] light duty. This works 

okay with having [ADHD], depression [and] chronic fatigue. 

I am able to rest during the day before work [and] that gives 

me enough energy to do this 4 [hour] job 4 days a [week]. 

{¶ 45} 15. MMro compared relator's previous job at HCDJFS with her new job at 

Fifth Third Bank. On November 14, 2011, MMro issued a report concluding that relator's 
No. 13AP-627 17 

request for approval of her employment at Fifth Third Bank should be denied because of 

similarities of that job and the HCDJFS job. 

{¶ 46} 16. The record contains an OPERS document dated November 17, 2011 and 

captioned "Medical Advisor Board Recommendation." Therein, the document indicates 

that "MMro" has advised: "Similarities Found. Recommend Early Annual Review." 

{¶ 47} 17. By letter dated November 17, 2011, OPERS informed relator: 

We reviewed the Employment Review for a Disability 

Benefit Recipient form (DR-2) that you submitted. 

Our third party administrator Managed Medical Review 

Organization (MMro) performed a vocational assessment of 

the position(s) you have been and/or are considering 

undertaking in comparison to your last public employment 

position. MMro has determined there is similarity between 

the position(s) you have been and/or considering 

undertaking and your last public employment position from 

which you were found to be disabled. 

As part of your current annual review, MMro will evaluate 

your condition which may require you to have an in-person 

medical examination. 

Once the evaluation process is complete, a recommendation 

as to whether or not you continue to be permanently 

disabled from the duties of your last public employment 

position will be made to the Ohio PERS Retirement Board. 

You will be notified by letter once official action has been 

taken by the Board on your case. 

(Emphasis sic.) 

{¶ 48} 18. Relator timely appealed the December 14, 2011 board decision. 

{¶ 49} 19. On February 8, 2012, attending physician Zhijun George Guo, M.D., 

completed an "Attending Physician Statement" on a form provided by OPERS. On the 

form, Dr. Guo listed the following "disabling condition(s)": 

[One] Chiari I Malformation 

[Two] Chronic Migraine/Fibromyalgia 

[Three] Depression 

[Four] Syringohydre-Myelia 
No. 13AP-627 18 

{¶ 50} Dr. Guo marked a "no" box in response to the query: "Is member expected 

to return to work with their public employer?" 

{¶ 51} 20. On January 6, 2012, at relator's own request, she was evaluated by 

Leroy Vickers, M.D., who wrote: 

OPERS has recently determined that you are not disabled to 

perform duty as a Program Technician II, a position 

previously held by you before you became disabled in 2005. 

Your recent medical history includes increasing symptoms 

including left shoulder pain and weakness, numbness to 

tongue, off balance, and dizziness. You were hospitalized at 

Jewish Hosp. Oct. 14, 2011, with neurosurgical/neurological 

consultation at that time. The work up showed increasing 

growth of a previously diagnosed Arnold-Chiari 

malformation/syrinx. This is a congenital lesion. No surgery 

is advised due to risks involved. Neurologists DR. Rorick and 

DR. GUO. 

This patient has had depression/emotional problems due to 

above situation and is currently on medication for this. Her 

psychiatrist is Dr. Khosla (CCHB), Connie Moody is her 

counselor. 

Ms. Lowe has chronic fibromyalgia, ADHD, some memory 

loss and at this time, Ms. Lowe indicates, and I agree with 

her that she is permanently disabled but could return to 

work with Hamilton County with accommodations. 

{¶ 52} 21. During September, October, and November 2011, relator underwent a 

neuropsychological evaluation performed by Robert Krikorian, Ph.D. Relator was 

referred to Dr. Krikorian by Dr. Guo. In his four-page narrative report, Dr. Krikorian 

opines: 

The neuropsychological studies indicated specific cognitive 

impairments involving aspects of attention and executive 

[sic] ability with secondary effects on memory. There also 

was mild phonological processing inefficiency. While the 

described deficits are mild, they have functional implications 

and are consistent with the occupational inefficiency and 

memory difficulty. In addition, the executive [sic] 

impairment almost certainly has contributed to her 

emotional disturbance because the organization and 
No. 13AP-627 19 

inhibitory control impairments lead to less effective 

emotional coping as described above. 

{¶ 53} 22. On January 10, 2012, Dr. Krikorian wrote to relator: 

Our evaluation indicated that you have deficits of attention 

and executive ability, among others, that affect your ability to 

register information from the environment, integrate 

complex material, and organize and executive [sic] effective 

problem-solving strategies. In addition, these deficits will 

affect memory function in certain contexts by interfering 

with memory encoding and retrieval processes. 

In the context of that evaluation you provided information 

about problems you have had in certain work environments 

and you described in particular being overwhelmed and 

ineffective when working as a technician for Hamilton 

County Job and Family Services. You cited the volume of 

work as a major difficulty in that position. Your experiences 

with that job would be consistent with the findings on our 

evaluation of attention and executive [sic] impairment. 

Indeed, our report contained recommendations concerning 

strategies that might help with organization. Other 

approaches and accommodations that might be useful 

generally but especially in such a job would include limiting 

work load and/or working part-time, increasing training and 

on-the-job supervision and assistance, frequent monitoring 

of responsibilities by a supervisor or co-worker in order to 

insure that [tasks] are completed in a timely way. It would be 

expected that without such accommodations, you will 

experience performance difficulties and stress as you did in 

the past. 

{¶ 54} 23. By letter dated April 26, 2012, relator was informed that she was 

scheduled for a psychiatric evaluation to be performed by Mark Reynolds, M.D. 

{¶ 55} 24. On May 11, 2012, relator was evaluated by Dr. Reynolds. In his tenpage narrative report, Dr. Reynolds states: 

MEDICAL RECORD REVIEW

Position description for a CPA Specialist with the Hamilton 

County Department of Job and Family Services. 

* * * 
No. 13AP-627 20 

IDENTIFYING INFORMATION

Uneek Lowe presents as a 56-year-old divorced biracial 

female employed previously by Hamilton County Job and 

Family Services, working in eligibility determinations. She 

indicates having been employed in that position for 

approximately four years and seven months. She has not 

worked in that position since 2005. She indicates that she 

was on medical leave and was terminated while on medical 

leave. 

PSYCHIATRIC HISTORY

* * * 

The claimant indicates she eventually received disability 

under OPERS. While on disability and receiving social 

security benefits, she took a part time job involving feeding 

credit cards into a machine. She indicates taking this job in 

order to make extra money due to her basement flooding. 

She states although this position required much less 

decision-making and attention skills as opposed to her 

previous position, it was determined to be similar to her 

previous position, and as such her OPERS disability was 

stopped. She indicates having had to stop working in this 

position in March due to a strain of her rotator cuff. She 

indicates she has since tried to find other jobs and has had 

difficulty due to medical concerns. 

* * * 

MENTAL STATUS EXAM

The claimant presented as an alert and oriented, welldeveloped, well-nourished biracial female in no apparent 

physical distress. Her speech was of a mildly increased rate, 

normal rhythm and prosody. Her affect was stable, mildly 

restricted, appropriate to content and predominantly 

depressed and irritable mood. Thought form was linear and 

goal-directed. Thought content was without evidence of 

hallucination, delusion, ideas of reference, thought 

broadcasting, thought insertion or current homicidal 

ideation. She admitted to intermittent suicidal ideation 

without plan or intent. Her memory for immediate, recent 

and remote events was good. Her concentration abilities in 

this setting were unimpaired. 
No. 13AP-627 21 

ASSESSMENT

Axis I: 296.89 Bipolar Disorder, type II with rapid 

 cycling 

300.0 Anxiety Disorder NOS (including history 

of Posttraumatic Stress Disorder) 

Axis II: 799.9 Deferred 

 

Axis III: Arnold Chiari malformation, 

thalassemia, fibromyalgia, rotator cuff 

tears bilaterally, herniated discs (level 

unspecified), arthritis and restrictive 

airway disease 

 

Axis IV: Multiple medical problems, chronic 

pain, occupational difficulty 

Axis V: GAF 60 (current) 

FINDINGS AND RECOMMENDATIONS

* * * 

Based upon the definition of disability under OPERS, it 

would be my opinion that the claimant cannot currently be 

presumed permanently disabled from a psychiatric 

standpoint based upon her psychiatric symptomatology 

alone. It appears that the claimant has a bipolar condition 

and this has been indicated to her by psychiatrists 

previously; however, she has resisted trials of mood 

stabilizing medication. It is likely that with a trial of mood 

stabilizing medication she could experience a significant 

decrease in the extent of her psychiatric symptomatology. In 

addition, even without ideal treatments including mood 

stabilizing medications, her recent neuropsychological 

evaluation by Dr. [Krikorian] indicates an ability to return to 

her previous position of employment. It would be 

recommended that the claimant not only engage in further 

psychiatric evaluation and initiation of trial of mood 

stabilizing medications but that she also institute treatment 

as recommend[ed] by Dr. [Krikorian] and also 

recommendations by Dr. [Krikorian] involving her treatment 

environment [currently] be[ing] entertained. 
No. 13AP-627 22 

* * * 

It would be my expectation that flares [sic] in the claimant's 

fibromyalgia would intensify the extent of her psychiatric 

symptomatology and vice versa. Based upon the current level 

of the claimant's psychiatric symptomatology, I do not opine 

that she is unable to return to work. 

{¶ 56} 25. On May 30, 2012, as an employee of MMro, Jeffrey Deitch, D.O., 

completed a review of medical reports of record. In his two-page report, Dr. Deitch 

recommended termination of relator's disability benefit. Dr. Deitch did not examine 

relator, but only reviewed medical records previously noted herein. 

{¶ 57} 26. By letter dated June 21, 2012, OPERS informed relator: 

The Ohio PERS Retirement Board reviewed your disability 

benefit file and recent reports of medical re-evaluation at the 

June 20, 2012 meeting. 

Based upon all the medical information and 

recommendations, the Ohio PERS medical consultants and 

the board concluded that you are not considered to be 

permanently disabled from the performance of duty as a 

Program Technician 2. As a result, the Board upheld its 

previous action to terminate your disability benefits. This 

decision is final. 

(Emphasis sic.) 

{¶ 58} 27. On July 19, 2013, relator, Uneek V. Lowe, filed this mandamus action. 

Conclusions of Law: 

{¶ 59} Three main issues are presented: (1) whether the board abused its 

discretion in failing to determine whether the alleged disabling medical conditions 

prevent relator from performing her recent position at Fifth Third Bank, (2) whether any 

of the medical reports must be eliminated from evidentiary consideration because the 

examining physicians allegedly failed to show sufficient knowledge of relator's job duties 

at HCDJFS, and (3) whether there is some evidence in the record supporting the board's 

presumed determination that, based upon pertinent R.C. 145.362 examinations reported 

by board-appointed examining physicians, relator is no longer physically and 
No. 13AP-627 23 

psychologically unable to perform her former position at HCDJFS upon which her 

disability benefit was premised. 

{¶ 60} The magistrate finds: (1) the board was not required to determine whether 

the alleged disabling medical conditions prevent relator from performing her recent 

position at Fifth Third Bank, (2) none of the medical reports need be eliminated from 

evidentiary consideration due to an alleged failure of the examining physician to show 

sufficient knowledge of relator's job duties at HCDJFS, and (3) there is some evidence in 

the record supporting the board's presumed determination based upon pertinent R.C. 

145.362 examinations, that relator is no longer physically and psychologically unable to 

perform her former position at HCDJFS upon which her disability benefit was premised. 

{¶ 61} Accordingly, as more fully explained below, it is the magistrate's decision 

that this court deny relator's request for a writ of mandamus. 

{¶ 62} Preliminarily, it can be observed that, with its December 14, 2011 initial 

decision and its June 20, 2012 final decision terminating relator's disability benefit, the 

board chose not to specifically cite to the medical evidence supporting its decisions. 

{¶ 63} That is, in its December 15, 2011 letter, OPERS simply informed relator: 

Based upon all the medical information and 

recommendations, the Ohio PERS medical consultants and 

the Board concluded that you are no longer considered to be 

permanently disabled from the performance of duty as a 

Program Technician 2. Therefore, your disability benefit will 

be terminated. 

{¶ 64} Immediately prior to its December 14, 2011 initial decision, at the request of 

OPERS, relator underwent a psychiatric evaluation performed by Dr. Miller on October 

17, 2011. Also at the request of OPERS, relator underwent a physical examination 

performed by Dr. Middaugh on October 20, 2011. 

{¶ 65} As earlier noted, Dr. Miller opined: "She is not clinically disabled. I see no 

reason that her previous type of work would be contraindicated." Also, Dr. Miller opined 

that relator's "recurrent depressions * * * are not considered to be work-prohibitive." 

{¶ 66} As earlier noted, Dr. Middaugh opined: 

Per the OPERS definition of permanent disability, Ms. Lowe 

is not physically disabled from performing her occupation as 
No. 13AP-627 24 

a public employee. I see no physical condition that would 

interfere with any of her job related activities. 

{¶ 67} Presumably, in its December 14, 2011 initial determination to terminate the 

disability benefit, the board relied upon the reports of Drs. Miller and Middaugh. 

{¶ 68} Immediately prior to its June 21, 2012 final decision, at the request of 

OPERS, relator underwent a psychiatric examination performed by Dr. Reynolds on 

May 11, 2012. In his report, Dr. Reynolds opined: 

Based upon the definition of disability under OPERS, it 

would be my opinion that the claimant cannot currently be 

presumed permanently disabled from a psychiatric 

standpoint based upon her psychiatric symptomatology 

alone. 

{¶ 69} Relator did not undergo another physical examination at the request of 

OPERS following the board's initial decision to terminate disability benefits. That is, 

following the board's December 14, 2011 initial decision, OPERS only had relator 

examined by a psychiatrist. It is not clear why OPERS did not have relator physically 

examined following relator's administrative appeal of the board's December 14, 2011 

initial decision. 

 Basic Law 

{¶ 70} Effective September 16, 1998, R.C. 145.362 stated: 

The public employees retirement board shall require any 

disability benefit recipient to undergo an annual medical 

examination, except that the board may waive the medical 

examination if the board's physician or physicians certify 

that the recipient's disability is ongoing. 

On completion of the examination by an examining 

physician or physicians selected by the board, the physician 

or physicians shall report and certify to the board whether 

the disability benefit recipient is no longer physically and 

mentally incapable of resuming the service from which the 

recipient was found disabled. If the board concurs in the 

report that the disability benefit recipient is no longer 

incapable, the payment of the disability benefit shall be 

terminated * * *. 

* * * 
No. 13AP-627 25 

Each disability benefit recipient shall file with the board an 

annual statement of earnings, current medical information 

on the recipient's condition, and any other information 

required in rules adopted by the board. The board may waive 

the requirement that a disability benefit recipient file an 

annual statement of earnings or current medical information 

if the board's physician certifies that the recipient's disability 

is ongoing. 

{¶ 71} Effective January 7, 2013, R.C. 145.362 states: 

The public employees retirement board shall require any 

disability benefit recipient to undergo an annual medical 

examination, except that the board may waive the medical 

examination if the board's physician or physicians certify 

that the recipient's disability is ongoing or for any other 

reason specified in rules adopted by the board. 

* * * 

On completion of the examination by an examining 

physician or physicians selected by the board, the physician 

or physicians shall report and certify to the board whether 

the disability benefit recipient meets the applicable standard 

for termination of a disability benefit. 

(A) Regardless of when the disability occurred, if the 

recipient's application for a disability benefit was received by 

the system before the effective date of this amendment, * * * 

the standard for termination is that the recipient is no longer 

physically and mentally incapable of resuming the service 

from which the recipient was found disabled. 

* * * 

(B)(3) * * * If the board concurs in the report that the 

disability benefit recipient meets the applicable standard for 

termination of a disability benefit, the payment of the 

disability benefit shall be terminated. 

Each disability benefit recipient shall file with the board an 

annual statement of earnings, current medical information 

on the recipient's condition, and any other information 

required in rules adopted by the board. The board may waive 

the requirement that a disability benefit recipient file an 
No. 13AP-627 26 

annual statement of earnings or current medical information 

if the board's physician certifies that the recipient's disability 

is ongoing. 

{¶ 72} Former Ohio Adm.Code 145-2-21 stated: 

(A) For the purpose of sections 145.35, 145.36, 145.361, and 

145.37 of the Revised Code and PERS rules: 

(1) "Disability" means presumed permanent mental or 

physical incapacity for the performance of a member's 

present duty or similar service that is the result of a disabling 

condition that has occurred or has increased since an 

individual became a member. 

* * * 

(6) "Examining physician" means a physician appointed by 

the PERS board. 

(B) A member shall make application for a disability benefit 

on a form provided by the retirement system. 

(1) Consideration of a member's application shall be limited 

to the disabling condition(s) listed in the application or 

disclosed by the examination of the physician(s) selected by 

the retirement system and the report of attending 

physician(s) on a form provided by the retirement system. 

(2) Upon receipt of a completed application, report of 

employer, report of attending physician(s), report of 

examining physician(s) and, if available, reports of 

employment physical examinations, the retirement system's 

medical consultant(s) shall review all such documentation 

and prepare a recommendation to the public employees 

retirement board. 

* * * 

(C) The board at its regular meetings shall review disability 

applications and the written recommendations of its medical 

examiners and medical consultant. The determination by the 

board on any application is final. 

* * * 
No. 13AP-627 27 

(D) The retirement board may require a member to submit 

to a subsequent medical examination by a physician selected 

by the retirement board provided the medical consultant 

recommends such examination in order to evaluate 

continued eligibility for disability benefits. 

{¶ 73} Currently, Ohio Adm.Code 145-2-21, effective September 16, 2013, states: 

(A) For the purpose of sections 145.35, 145.36, 145.361, 

145.362, and 145.37 of the Revised Code and agency 145 of 

the Administrative Code: 

(1) "Disability" means the following: 

(a) At the time of application, a presumed permanent mental 

or physical incapacity for the performance of a member's 

present or most recent public duty that is the result of a 

disabling condition that has occurred or has increased since 

an individual became a member. 

(b) At the time of medical examination pursuant to section 

145.362 of the Revised Code: 

(i) For a disability benefit recipient whose application for 

disability benefits was received before January 7, 2013, and 

for a disability benefit recipient whose application was 

received on or after January 7, 2013, * * * a disabling 

condition that renders the member mentally or physically 

incapable of resuming the service from which the member 

was found disabled. 

{¶ 74} " '[M]andamus is an appropriate remedy where no statutory right of appeal 

is available to correct an abuse of discretion by an administrative body.' " State ex rel. 

Cydrus v. Ohio Public Emps. Retirements Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12, 

quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-

Ohio-2219, ¶ 14. 

{¶ 75} "The determination of whether a retirement-system member is entitled to 

the continued receipt of disability-retirement benefits is within the exclusive authority of 

the retirement board, R.C. 145.362, and the board's denial of an appeal from the 

termination of these benefits is final and not subject to appeal." Cydrus at ¶ 12. "Because 
No. 13AP-627 28 

there is no right to appeal the retirement board's decision terminating disabilityretirement benefits, mandamus is an appropriate remedy." Id. at ¶ 13. 

{¶ 76} A clear legal right to a writ of mandamus exists when an agency is found to 

have abused its discretion by entering a decision that is not supported by some evidence. 

State ex rel. Schaengold v. Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio3760, ¶ 19; State ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 

2009-Ohio-307, ¶ 20-21; Kinsey v. Bd. of Trustees of Police & Firemen's Disability & 

Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990). 

{¶ 77} It is perhaps worth noting that, in Cydrus, the Supreme Court of Ohio held 

that the retirement board did not abuse its discretion by relying on Dr. Steiman's medical 

report in terminating the disability benefit. The Supreme Court found that Dr. Steiman's 

report "constituted sufficient evidence to support the board's determination." Id. at ¶ 31. 

The Supreme Court did not use the term "some evidence" in upholding the evidentiary 

value of Dr. Steiman's report. 

{¶ 78} Because there is no statutory provision that it do so, OPERS is not required 

to provide an explanation for its decision or cite to the evidence that supports its decision. 

Id. The lack of such statutory provision does not violate Ohio's separation-of-powers 

doctrine. Id. at ¶ 22-24. Also, the benefit recipient is not denied procedural due process 

when OPERS fails to identify the evidence it relied upon and to briefly explain its reasons 

for terminating the disability benefit. Id. at ¶ 25-27. 

First Issue 

{¶ 79} Regarding the first issue, former R.C. 145.362 provides that the board shall 

determine "whether the disability benefit recipient is no longer physically and mentally 

incapable of resuming the service from which the recipient was found disabled." R.C. 

145.362 currently provides that "the standard for termination is that the recipient is no 

longer physically and mentally incapable of resuming the service from which the recipient 

was found disabled." 

{¶ 80} Former Ohio Adm.Code 145-2-21(A)(1) defines "disability" as the 

"presumed permanent mental or physical incapacity for the performance of a member's 

present duty or similar service that is the result of a disabling condition * * *." 
No. 13AP-627 29 

{¶ 81} Currently, Ohio Adm.Code 145-2-21, effective September 16, 2013, provides 

that "disability" means "a presumed permanent mental or physical incapacity for the 

performance of a member's present or most recent public duty that is the result of a 

disabling condition * * *." 

{¶ 82} As earlier noted, on October 4, 2011, relator completed an OPERS form on 

which she reported her employment at Fifth Third Bank through Adecco performing 

credit card production. On the form, relator reported that she worked there part-time 

including four hours per day. She indicated no medical difficulty performing the job. 

Thereafter, MMro found similarities between the job at Fifth Third Bank and the job at 

HCDJFS, and recommended action by OPERS. 

{¶ 83} Based on the forgoing scenario, relator argues: 

Why didn't OPERS consider Lowe's last "similar" job when it 

had her evaluated by its physicians? Here again, Ohio 

Adm.Code 145-2-21 (A) defines disability for PERs [sic] 

purpose. It explicitly states that the focus is on "the 

member's present duty or similar service." Therefore basic 

fairness says that consideration should have been given to 

Lowe's last position. Therefore, OPERS and its Third Party 

Management Company abused its discretion by not 

demonstrating the essential job duties of the Credit Card 

Production position. See Adm.Code 145-2-21(A). 

(Relator's brief, 33-34.) 

{¶ 84} The magistrate disagrees with relator's argument. 

{¶ 85} To begin, relator invokes former Ohio Adm.Code 145-2-21(A)(1)'s reference 

to "a member's present duty or similar service" and particularly notes the phrase "similar 

service." However, relator ignores the provision of R.C. 145.362 indicating that the 

relevant inquiry is whether relator is "incapable of resuming the service from which the 

recipient was found disabled." 

{¶ 86} Relator does not contend that her Fifth Third Bank job involves "the service 

from which [she] was found disabled." Relator does not contend that her job at HCDJFS 

is not the job from which she was found disabled. Relator cannot simply ignore the 

statutory language, and then give the code provision her own interpretation that is 

inconsistent with the statute. 
No. 13AP-627 30 

{¶ 87} Moreover, to the extent that former Ohio Adm.Code 145-2-21(A)(1)'s 

definition of "disability" lacked clarity in this regard, current Ohio Adm.Code 145-2-

21(A)(1) makes clear that it is the member's public duty that is at issue in the 

determination. Undisputedly, the job at Fifth Third Bank did not involve relator's public 

duty. In short, relator's first argument lacks merit. 

Second Issue 

{¶ 88} As earlier noted, the second issue is whether any of the medical reports 

must be eliminated from evidentiary consideration because the examining physicians 

allegedly failed to show sufficient knowledge of relator's job duties at HCDJFS. 

{¶ 89} The magistrate finds State ex rel. Clark v. Indus. Comm., 72 Ohio St.3d 377 

(1995), a case involving workers' compensation, to be helpful, if not instructive, on the 

issue here. 

{¶ 90} In Clark, at 379, the court applied a legal principle from State ex rel. 

Braswell v. Indus. Comm., 25 Ohio St.3d 61, 63 (1986): 

[A] physician conducting a medical examination, where the 

claimant seeks temporary total disability benefits, should, in 

most cases, possess some knowledge of the physical 

requirements associated with the former position of 

employment[.][W]e deem it unnecessary for the physician to 

trace, in detail, every physical movement necessitated during 

the average workday. 

{¶ 91} The issue in Clark was whether Dr. Dobrowski's report satisfied Braswell. 

In his report, Dr. Dobrowski opined that the claimant "could return to his previous 

position as a construction worker." Id. at 378. He also noted that the claimant was injured 

"pushing an air compressor." Id. Concluding that Dr. Dobrowski's report satisfied 

Braswell, the Clark court states, at 380: 

Claimant responds that "construction worker" is too general 

a term, claiming that it encompasses many different duties 

entailing many different levels of physical exertion. While 

this may be true, there is no evidence that Dr. Dobrowski 

misperceived claimant's duties to the detriment of any 

interested party. There is no indication that Dr. Dobrowski 

based his conclusion on the erroneous belief that claimant's 

occupation consisted of sedentary, light or medium work. To 

the contrary, Dr. Dobrowski noted that claimant was injured 
No. 13AP-627 31 

while pushing an air compressor-a heavy piece of machinery. 

Accordingly, we find that the report was "some evidence" 

supporting the commission's decision. 

{¶ 92} In State ex rel. Kelly v. State Teachers Retirement Sys., 10th Dist. No. 11AP527, 2012-Ohio-4613, this court, adopting the decision of its magistrate, held that the 

medical reports of Elizabeth Mease, M.D. and Christopher Mabee, M.D., support the 

decision of the retirement system to terminate the disability benefit. This court explained: 

"While each report could have provided more detail about relator's job duties, neither 

report indicates a misunderstanding of the physical requirements of the position." Id. at 

¶ 10. 

{¶ 93} As earlier noted, presumably, the board relied upon the reports of 

Drs. Miller and Middaugh when it initially determined to terminate the disability benefit. 

{¶ 94} As earlier noted, in his eight-page narrative report of his October 17, 2011 

psychiatric examination, Dr. Miller states: 

I reviewed Ms. Lowe's job description from Hamilton County 

Department of Job and Family Services. 

{¶ 95} Other than stating that he reviewed the HCDJFS job description, Dr. Miller 

does not specify any of the job duties of this position. 

{¶ 96} However, when Dr. Miller opines: "I see no reason that her previous type of 

work would be contraindicated," it can be inferred that Dr. Miller was aware of the duties 

of the HCDJFS job. That inference can be drawn by the board that weighs the evidence 

before it. 

{¶ 97} As earlier noted, in her five-page narrative report, Dr. Middaugh wrote: 

Medical Record Review: Medical records provided are 

quite limited. There is a job description for Hamilton County 

Department of Job and Family Services for the CPA 

Specialist Program Technician 2. This is consistent with her 

job description, conducting applications, processing and 

gathering necessary information for eligibility regarding 

Healthy Start, Healthy Families and expedited Medicaid 

programs. 

{¶ 98} It is difficult to see how the above-quoted portion of the report can be 

viewed as anything but a showing of sufficient knowledge of the HCDJFS job tasks. 
No. 13AP-627 32 

Dr. Middaugh not only acknowledges that she reviewed the job description, she also 

compared the job description with the job description relator reported to her at the 

examination. 

{¶ 99} As earlier noted, on appeal of the board's initial decision, relator underwent 

another psychiatric examination performed by Dr. Reynolds on May 11, 2012. In his tenpage report, Dr. Reynolds stated that he reviewed the "[p]osition description for a CPA 

Specialist with the Hamilton County Department of Job and Family Services." Other than 

stating that he reviewed the HCDJFS job description, Dr. Reynolds does not specify any of 

the job duties of this position. 

{¶ 100} In his report, Dr. Reynolds does not opine that relator is medically 

able to return to her former position at HCDJFS. Rather, Dr. Reynolds opines that 

relator's psychiatric symptomatology is not permanent because relator has not been 

treated with "mood stabilizing medication." This is significant because knowledge of the 

duties of the former position at HCDJFS would not be critical to Dr. Reynolds' conclusion 

that "mood stabilizing medication" should be tried before any assessment of relator's 

ability to return to the HCDJFS job. 

{¶ 101} Accordingly, relator's challenge to the board's reliance upon the 

reports of Drs. Miller, Middaugh, and Reynolds is unpersuasive. 

Third Issue 

{¶ 102} The third issue is whether the board's determination that relator is 

no longer physically and psychologically unable to perform her former position at 

HCDJFS is supported by some evidence in the record, and particularly by the boardappointed examining physicians of record. Only Drs. Miller, Middaugh, and Reynolds 

were R.C. 145.362 examining physicians selected by the board to examine relator with 

respect to the benefit termination at issue here. Relator underwent two psychiatric 

examinations, one before, the other after the board's initial decision of December 14, 2011. 

Relator only underwent one physical examination which was performed by Dr. Middaugh 

before the initial decision. No physical examination was performed by a board selected 

physician after the initial decision. Thus, in rendering its final decision, the board must 

have relied exclusively upon the report of Dr. Middaugh for the physical component of the 

disability claim. 
No. 13AP-627 33 

{¶ 103} Relator has not claimed error in the failure of OPERS to schedule 

another physical examination by a board-selected physician, and the magistrate does not 

find error under the circumstances here. Accordingly, Dr. Middaugh's report is also some 

evidence upon which the board presumably relied to support the determination to 

discontinue disability benefits. 

{¶ 104} Accordingly, for all the above reasons, it is the magistrate's decision 

that this court deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).