[Cite as State ex rel. Willoughby v. Ohio Police & Fire Pension Fund, 2014-Ohio-4772.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. David H. Willoughby, : 

 Relator, : 

 No. 13AP-569 

v. : 

 (REGULAR CALENDAR) 

Ohio Police & Fire Pension Fund, : 

 Respondent. : 

 

D E C I S I O N 

Rendered on October 28, 2014 

 

David H. Willoughby, pro se. 

Michael DeWine, Attorney General, and Jennifer S. M. 

Croskey, for respondent. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

SADLER, P.J. 

{¶ 1} In this original action, relator, David H. Willoughby, requests a writ of 

mandamus ordering respondent, Ohio Police and Fire Pension Fund ("OP&F") and its 

board of trustees ("the board"), to vacate its order denying his application for a disability 

benefit under R.C. 742.38 and to enter an award of disability benefits based on R.C. 

742.38(D)(1) or, in the alternative, R.C. 742.38(D)(3). 

I. BACKGROUND

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

matter was referred to a magistrate who issued a decision, including findings of fact and 

conclusions of law, which is appended hereto. The magistrate concluded that the board 
No. 13AP-569 2 

was compelled to grant relator a disability benefit, pursuant to R.C. 742.38(D)(4), as it 

existed at times pertinent hereto. Accordingly, the magistrate recommended that this 

court grant a writ of mandamus ordering respondent to vacate its order denying relator's 

disability application and to enter an order granting relator a disability benefit under R.C. 

742.38(D)(4). 

II. OBJECTIONS

{¶ 3} Though respondent has filed objections to the magistrate's decision, no 

party has objected to the magistrate's findings of fact. Upon an independent review of the 

record, we adopt the magistrate's findings of fact as our own. With respect to the 

magistrate's conclusions of law, respondent presents the following objections: 

[I.] The Magistrate erred in recommending that this court 

issue a writ of mandamus ordering OP&F to vacate its order 

denying disability benefits. "Some evidence" supports OP&F's 

decision. 

[II.] The Magistrate erred in recommending that this court 

issue a writ of mandamus ordering OP&F to enter an order 

granting Willoughby a benefit for a disability not caused or 

induced by the performance of the member's official duties. 

III. ANALYSIS 

{¶ 4} To obtain a writ of mandamus, the relator must establish (1) a clear legal 

right to the requested relief, (2) a clear legal duty upon the respondent to perform the 

requested act, and (3) no plain and adequate remedy in the ordinary course of law. 

Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund of Ohio, 49 

Ohio St.3d 224, 225 (1990). "Because the final OP&F board decision is not appealable, 

mandamus is available to correct an abuse of discretion by the board in denying disability 

benefits." State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62, 

2011-Ohio-4677, ¶ 28. "A clear legal right to the requested relief in mandamus exists 

'where the board abuses its discretion by entering an order which is not supported by 

"some evidence." ' " State ex rel. Kolcinko v. Ohio Police & Fire Pension Fund, 131 Ohio 

St.3d 111, 2012-Ohio-46, ¶ 2, quoting Kinsey at 225. 

{¶ 5} Because respondent's objections to the magistrate's decision are 

interrelated, we address them together for ease of discussion. In these objections, 
No. 13AP-569 3 

respondent contends that relator's complaint requests a writ of mandamus ordering 

respondent to award disability benefits under either R.C. 742.38(D)(1) or (3); therefore, 

the magistrate erred in recommending that this court grant a writ of mandamus ordering 

respondent to award disability benefits under R.C. 742.38(D)(4). Additionally, 

respondent contends that, because there is some evidence to support its denial of 

disability benefits under both R.C. 742.38(D)(1) and (D)(3), this court should deny 

relator's request for a writ of mandamus. 

{¶ 6} The magistrate found that the board relied on the report of Dr. Tzagournis, 

who was uncertain as to whether relator's condition was permanent or temporary, to deny 

relator's request for disability benefits. The magistrate, relying on Tindira, concluded that 

disability benefits under former R.C. 742.38(D)(4) could not be denied on the grounds 

that the condition is not permanent, and, therefore, the magistrate recommended that 

this court issue a writ of mandamus ordering respondent to grant relator a disability 

benefit under former R.C. 742.38(D)(4). In objecting to the magistrate's recommendation, 

respondent asserts the magistrate erred in providing relief that relator did not seek in this 

action. We agree. 

{¶ 7} Relator's complaint asserts he is "permanently and totally disabled as a 

result of [his] official duties as a police officer." (Complaint, 15.) Further, the complaint 

asserts relator is entitled to annual disability benefits under "R.C. § 742.38(D)(1)," but if 

the disabling conditions were not the result of the performance of his official duties as a 

police officer, his diagnosis of hypertension and chest pain constitute chronic " 'heart 

disease or [any] cardiovascular [or respiratory] disease' " presumed to have been incurred 

while performing his official duties. (Complaint at 17, quoting R.C. 742.38(D)(3).) In 

conclusion, the complaint requests "[a] writ of mandamus to direct respondent [OP&F] to 

award disability benefits to Relator based on Ohio Revised Code § 742.38(D)(1)." 

(Complaint, 18.) 

{¶ 8} Similarly, in his brief to the magistrate, relator argued the board abused its 

discretion by failing to award disability benefits "in compliance with R.C. 742.38(D)(1)" 

and "by failing to recognize that [his] heart disease and/or cardiovascular disease has a 

prima facie presumption to have been incurred during the performance of [his] official 

duties, in accordance with R.C. 742.38(D)(3)." (Merit Brief, 20, 28.) Relator's merit brief 
No. 13AP-569 4 

reiterated that he sought a writ of mandamus compelling respondent "to award him a 

duty-related disability pension in accordance with R.C. § 742.38(D)(1), or in the 

alternative, * * * a duty-related disability pension in accordance with R.C. 

§ 742.38(D)(3)." (Merit Brief, 33-34.) 

{¶ 9} As stated in State ex rel. Union Metal Corp. v. Indus. Comm., 10th Dist. No. 

03AP-1247, 2005-Ohio-847, "[w]e cannot grant relief that is not requested." Id. at ¶ 3, 

citing State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App.3d 387, 2003-Ohio1586, ¶ 37 (11th Dist.) (because the complaint did not seek a writ of mandamus 

compelling "reinstatement," the magistrate's recommendation that a writ granting such 

relief was rejected); Parker v. Upper Arlington, 10th Dist. No. 05AP-695, 2006-Ohio1649 (courts cannot grant relief not requested in complaint); Clough v. Lawson, 11th Dist. 

No. 2012-L-118, 2012-Ohio-5831 (an appellate court cannot grant relief not properly 

requested in the complaint seeking a writ of mandamus). 

{¶ 10} Because relator's complaint and briefing in this court repeatedly sought 

relief under either R.C. 742.38(D)(1) or (3), we find the magistrate's discussion of Tindira

and its interpretation of R.C. 742.38(D)(4) inapplicable to this matter, and we reject said 

discussion on that basis. See State ex rel. Bell v. Ohio Police & Fire Pension Fund, 10th 

Dist. No. 11AP-628, 2012-Ohio-6153 (rejecting the magistrate's characterization of the 

relator's request for benefits as one brought under R.C. 742.38(D)(1) when the complaint 

and briefs referenced only R.C. 742.38(D)(2)). Consequently, we reject the magistrate's 

recommendation that we issue a writ of mandamus ordering respondent to award a 

disability benefit under R.C. 742.38(D)(4). 

{¶ 11} Since the magistrate addressed only R.C. 742.38(D)(4), the magistrate did 

not determine whether relator was entitled to a writ of mandamus ordering respondent to 

award disability benefits under R.C. 742.38(D)(1) or (3). Thus, we do so now. 

{¶ 12} " 'Under R.C. 742.38 and Ohio Adm.Code 742-3-05, the OP & F board is 

vested with the exclusive authority to evaluate the weight and credibility of the medical 

evidence in determining a member's entitlement to disability-retirement benefits.' " Id. at 

¶ 9, quoting Kolcinko at ¶ 7. "The board and the Disability Evaluation Panel ("DEP") must 

consider 'all competent evidence' and must 'rely upon the medical opinions of the DEP 

physicians and OP&F's medical advisor, who have given due consideration of medical and 
No. 13AP-569 5 

other evidence presented to OP&F.' " Id., quoting Ohio Adm.Code 742-3-05(B)(4) and 

(6). "Under the appropriate standard of review, the presence of contrary evidence is 

immaterial if there is evidence in support of the board's findings of fact." Kolcinko at ¶ 9. 

{¶ 13} Upon review of the record, we conclude the board did not abuse its 

discretion in denying disability benefits, pursuant to R.C. 742.38(D)(1) or (3), as its denial 

is supported by some evidence. At a minimum, the reports of Drs. Ball and Tzagournis 

support the denial, as these reports conclude relator is not disabled and that the alleged 

disabling conditions were not caused by the performance of his official duties. 

Additionally, the evidence presented here does not support relator's assertion that he is 

entitled to disability benefits based on the presumption set forth in R.C. 742.38(D)(3). 

{¶ 14} For all the foregoing reasons, respondent's objections to the magistrate's 

decision are sustained. Given our conclusion that relator has failed to establish a clear 

legal right to the relief requested, we deny the requested writ of mandamus. 

IV. CONCLUSION 

{¶ 15} After review of the magistrate's decision and an independent review of the 

record, we adopt the magistrate's findings of fact, but reject the magistrate's conclusions 

of law and substitute the same with our own as set forth in this decision. Accordingly, we 

sustain respondent's objections and deny the requested writ of mandamus. 

Objections sustained; 

writ of mandamus denied.

TYACK and CONNOR, JJ., concur. 

_____________________________ 

 
No. 13AP-569 6 

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

David H. Willoughby, 

 : 

 Relator, No. 13AP-569 

 : 

v. (REGULAR CALENDAR) 

 : 

Ohio Police & Fire Pension 

Fund, : 

 Respondent. : 

 

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

Rendered on June 20, 2014

 

David H. Willoughby, pro se. 

Michael DeWine, Attorney General, and Jennifer S. M. 

Croskey, for respondent. 

 

IN MANDAMUS 

{¶16} In this original action, relator, David H. Willoughby, requests a writ of 

mandamus ordering respondent, Ohio Police & Fire Pension Fund ("OP&F"), to vacate 

its order denying his application for a disability benefit under R.C. 742.38, and to enter 

an order granting the application. 

Findings of Fact: 

{¶17} 1. In late 2006, relator became Chief of Police for the Village of New 

Richmond, Ohio. In September 2008, relator was placed on administrative leave by the 

village mayor. 
No. 13AP-569 7 

{¶18} 2. On October 24, 2008, a search warrant was executed on relator's 

personal residence, and later charges were brought. 

{¶19} 3. In May 2009, relator entered into a plea agreement in which he was 

allowed to plead guilty to misdemeanors in exchange for his dismissal of a lawsuit. He 

resigned from the New Richmond Police Department in May 2009. 

{¶20} 4. On June 5, 2009, relator filed a disability benefits application on a form 

provided by OP&F. 

{¶21} On the form, relator listed seven disabling conditions described as: (1) 

"Hypertension"; (2) "Post Traumatic Stress [Disorder]"; (3) "Chest Pain"; 

(4) "Insomnia"; (5) "Depression"; (6) "Anxiety"; (7) and "Bilateral Paresthesia." 

{¶22} 5. On July 7, 2009, attending physician Elizabeth A. Doriott, D.O., 

completed a "Report of Medical Evaluation" on a form provided by OP&F. On the form, 

Dr. Doriott listed four diagnoses described as: (1) "PTSD"; (2) "Chronic Migraines"; (3) 

"HTN"; and (4) "Chest Pain." 

{¶23} On the form, Dr. Doriott indicated by her mark that she certifies that 

relator "has a condition of disability from which there is no present indication of 

recovery." 

{¶24} Beside the request for an "[e]xplanation," Dr. Doriott wrote: 

Presently, PTSD needs to be addressed. Unable to function 

as officer. 

{¶25} 6. On August 11, 2009, at OP&F's request, relator was examined by 

Thomas E. Forte, D.O. Dr. Forte completed a "Report of Medical Evaluation" on a form 

provided by OP&F. On the form, Dr. Forte indicated by his mark his agreement with the 

following pre-printed statement: 

The member has a condition of disability from which 

there is no present indication of recovery using the 

occupational characteristics developed by the U.S. 

Department of Labor for the positions of police officer - 

government service or fire fighter any industry. 

(Emphasis sic.) 

{¶26} 7. Dr. Forte also issued a seven-page narrative report, stating: 
No. 13AP-569 8 

MEDICAL HISTORY: Mr. Willoughby is a 38 year-old 

male who worked as a police officer in New Richmond. He 

states that he was in good health until an event on 10/24/08 

when police entered his home and he was handcuffed and 

held at gunpoint while police executed a search warrant. He 

states since that time he has been found to have 

hypertension, has ongoing central retrosternal chest pain, 

and has paresthesias in the ulnar distribution of both hands 

with pain, tingling and numbness with some weakness. 

Condition: Hypertension and chest pain

II. A. Synopsis: He states the hypertension developed 

approximately 3 months after the 10/24/08 incident. 

* * * 

Condition: Paresthesias bilateral hands and fingers 

II. A. Synopsis: He states the symptoms began after being 

handcuffed during the event of 10/24/08. He does not 

describe any treatment for the symptoms and has had no 

electrodiagnostic testing. He reports full range of motion 

with some pain radiating into the ring and small digits of 

both hands. 

* * * 

Discussion: 

1) Hypertension and chest pain: The shown reports no 

significant restrictions of activities related to these 

conditions but in general should avoid heavy lifting, limit 

reaching, climbing and above chest activities and would have 

[some] difficulty in physically apprehending suspects. 

2) Insomnia: In this examiner's opinion the insomnia is a 

symptom related to this gentleman's psychiatric conditions 

and should be rated by the psychological examiner. 

* * * 

Impact on activities of daily living 

This gentleman would have limitations for heavy lifting, 

should limit reaching, climbing, above chest activities and 

would have some difficulty and [sic] apprehending suspects. 
No. 13AP-569 9 

{¶27} 8. Also in his narrative report, Dr. Forte performed an impairment 

evaluation under the American Medical Association's Guides to the Evaluation of 

Permanent Impairment—Fifth Edition. Dr. Forte estimated a 12 percent whole person 

impairment based upon "[h]ypertension and chest pain." 

{¶28} 9. On August 30, 2009, at the request of OP&F, relator was examined by 

Delaney M. Smith, M.D. Dr. Smith completed a "Report of Medical Evaluation" on a 

form provided by OP&F. On the form, Dr. Smith indicated by her mark her agreement 

with the following pre-printed statement: 

The member has a condition of disability from which 

there is no present indication of recovery using the 

occupational characteristics developed by the U.S. 

Department of Labor for the positions of police officer - 

government service or fire fighter any industry. 

{¶29} 10. Dr. Smith also issued a nine-page narrative report, stating: 

At your request, I have performed a psychiatric evaluation of 

Mr. David Willoughby to offer an opinion on several 

questions that you posed. 

[One] Was Mr. Willoughby's alleged psychological disability 

the result of the performance of his official duties as a police 

officer? 

[Two] Was Mr. Willoughby's alleged psychological disability 

already present when he was hired? 

[Three] Did Mr. Willoughby's alleged psychological disability 

develop after employment but for reasons unrelated to work? 

[Four] If the answer is "Yes," did Mr. Willoughby's 

employment induce or aggravated [sic] the pre-existing or 

concurrently developing psychological disability? 

* * * 

Diagnostic Impression:

Axis I Major Depressive Disorder Single 

episode moderate Anxiety Disorder Not 

Otherwise Specified with features of 
No. 13AP-569 10 

Post Traumatic Stress Disorder and 

panic disorder 

Axis II None given 

Axis III Hypertension, Ulcers, GERD, seasonal 

allergies, migraines, parasthesias in 

hands, kidney stones 

Axis IV Occupational Problems (Career loss), 

Legal problems, Social embarrassment 

Axis V 58 

The diagnosis of Major Depression is given based on Mr. 

Willoughby's history of one episode of depressed mood all 

day every day. Currently he has decreased interests, poor 

concentration, sleep, energy and appetite, and feelings of 

guilt and worthlessness. 

The diagnosis Anxiety Disorder NOS is given based on Mr. 

Willoughby's having symptoms of Post Traumatic Stress 

Disorder and Panic Disorder which do not fully meet criteria 

for either but are causing clinically significant distress. 

Opinion:

Is Mr. Willoughby disabled from police work?

It is my opinion, with reasonable medical certainty, that Mr. 

Willoughby is currently disabled from his work as a police 

officer based on his psychiatric conditions. He is unable to 

safely perform the necessary functions of a police officer as a 

result of his poor energy, poor sleep, and poor concentration 

as well as his distress with reminders of police work 

including sirens and avoidance of reminders of police work. 

[One] Was Mr. Willoughby's alleged psychological 

disability already present when he was hired?

It is my opinion, with reasonable medical certainty, that Mr. 

Willoughby's psychological disability was not present when 

he was hired as he has no history of depression, anxiety, or 

psychological treatment prior to beginning police work. 
No. 13AP-569 11 

[Two] Was Mr. Willoughby's alleged psychological 

disability the result of the performance of his official duties 

as a police officer?

It is my opinion, with reasonable medical certainty, that Mr. 

Willoughby's psychological disability was not the direct 

result of the performance of his official duties as a police 

officer as he did not have any symptoms of depression until 

the search of his home October 24, 2008 which occurred 

while he was on administrative leave. While he had some 

minor symptoms related to traumas which had occurred as a 

result of the performance of his official duties prior to 2008, 

the symptoms did not rise to their current level until 

October 24, 2008. 

[Three] Did Mr. Willoughby's alleged psychological 

disability develop after employment but for reasons 

unrelated to work?

It is my opinion, with reasonable medical certainty, that Mr. 

Willoughby's psychological disability developed after he was 

employed as a police officer and as stated above was 

primarily the result of the trauma he suffered during the 

search on his home while he was on administrative leave. 

[Four] If the answer to number one or three is "Yes," did 

Mr. Willoughby's employment induce or aggravated [sic] 

the pre-existing or concurrently developing psychological 

disability?

It is my opinion, with reasonable medical certainty, that Mr. 

Willoughby's employment as a police officer did aggravate 

his concurrently developing psychological disability as his 

prior traumatic experiences during the line of duty as a 

police officer, while not resulting in symptomatic PTSD in 

and of themselves likely predisposed him to develop anxiety 

following the events of October 24, 2008 as it is well 

established that cumulative trauma and traumatic history 

are predisposing factors for the development of PTSD. 

Additionally, some of the distressing recollections revolve 

around aspects of his police work not related to 

October 24th, including dreams of guns not firing when he 

needs them to, avoidance of police shows, and distress with 

hearing sirens. 
No. 13AP-569 12 

In Mr. Willoughby's case, it is my opinion, with reasonable 

medical certainty, that as a result of his Major Depression 

PTSD and Panic Disorder with Agoraphobia, Mr. Willoughby 

has a Whole Person Impairment totaling 25%. The basis for 

this opinion is as follows: 

[One] Mr. Willoughby has mild (30%) impairment of his 

activities of daily living as a result of his psychiatric 

symptoms. Mr. Willoughby has poor sleep, cooks and bathes 

less often and is more distracted when driving. 

[Two] Mr. Willoughby has mild (25%) impairment of social 

functioning as a result of his psychiatric symptoms. He has 

withdrawn from friends and family. 

[Three] Mr. Willoughby has marked (40%) impairment of 

his concentration/task completion due to his psychiatric 

symptoms. He has poor memory and concentration. 

[Four] Mr. Willoughby has mild (5%) impairment in his 

ability to tolerate stress due to psychiatric symptoms. Mr. 

Willoughby is less patient. 

In summary, by averaging the four areas of impairment 

(activities of daily living, social functioning, concentration 

and compensation under stress); I arrived at a Whole Person 

Impairment of 25%. A Whole Person Impairment of 25% is 

also consistent with the global assessment of functioning 

(GAF) of 58 that I assigned to Mr. Willoughby. 

I would add that Mr. Willoughby's prognosis for 

improvement to the point of being able to return to work in 

the next year is poor. He has continued to have symptoms for 

almost a year and is unlikely to have significant 

improvement. 

(Emphasis sic.) 

{¶30} 11. On September 11, 2009, at the request of OP&F, relator was 

interviewed by vocational expert Robert E. Breslin. In his five-page narrative report, 

Breslin opined: 

In approximately 1991, he obtained a position as a Police 

Officer (D.O.T. #379.263-014) with the Village of Clayton, 

Ohio. This is classified as skilled and very heavy by the U.S. 
No. 13AP-569 13 

Department of Labor. Mr. Willoughby remained in this 

position for approximately 1 1/2 years, ending in 1993. [H]e 

also worked for Madison Township as a Patrol Officer for 

approximately 3 years and with the city of Bellbrook as a 

Patrol Officer from 1992 through 1998. In 1998 he was hired 

by the city of Trotwood as a Patrol Officer for one year. 

From approximately 2000 through 2003 he worked as a 

Customer Service Representative (D.O.T. # 032.262-010) for 

Lexis-Nexis in Dayton, Ohio. This job is classified as 

sedentary and skilled by the U.S. Department of Labor. Mr. 

Willoughby was responsible for working with customers who 

subscribed to the service, including law firms and law 

students, and assisted them to resolve their problems with 

printers and other external and peripheral equipment. 

In 2003, Mr. Willoughby accepted a position as Police Chief 

(D.O.T. # 375.117-010) of the New Vienna, Ohio Police 

Department. According to the D.O.T. this job is classified as 

sedentary and skilled. New Vienna was a small department 

in Clinton County with 4 full-time and 15 part-time and/or 

auxiliary officers. Mr. Willoughby reportedly spent 80% of 

his time on patrol and 20% on strictly administrative 

functions. 

In December of 2006, Mr. Willoughby accepted the position 

of Police Chief of New Richmond, Ohio. This was also a 

relatively small department, with 5 full-time officers, 3 parttime officers and 10 auxiliary officers. Mr. Willoughby 

reportedly split his time evenly between administrative tasks 

and patrol in this position. His last day worked in this job 

was September 22, 2008. He left when he was placed on 

administrative leave. 

* * * 

On September 11, 2009, I examined Mr. David Willoughby 

and made the findings previously listed. On the basis of this 

examination and review of the available medical records, I 

make the following judgment: 

 Mr. Willoughby is unable to return to his former 

position of Police Officer. His physical restrictions and 

mental restrictions would, if considered separately, 

both preclude the performance of police work. In 

combination, they obviously do as well. 
No. 13AP-569 14 

 Mr. Willoughby has developed transferable skills 

based on his work as a Police Officer and Customer 

Service Representative, however, the psychological 

limitations described by Dr. Smith would not allow 

him to successfully perform the jobs to which these 

skills might otherwise provided access. 

 Mr. Willoughby has access to some unskilled jobs at 

the sedentary, light and medium levels of exertions, 

based upon the combined opinions of Dr. Forte and 

Dr. Smith. 

{¶31} 12. Ohio Adm.Code 742-3-05(A)(12) provides for a disability evaluation 

panel ("DEP") which is established by the board of trustees of OP&F ("board") to make 

written recommendations to the board on pending disability applications. The DEP is 

comprised of three voting members and at least two non-voting members. The three 

voting members are also members of the board. The non-voting members are 

comprised of expert physicians and an expert in vocational evaluations. 

{¶32} 13. On October 14, 2009, A.J. Ball, M.D., completed a "Disability 

Evaluation Panel Recommendation" on a form provided by OP&F. Dr. Ball was a nonvoting member of DEP. On the form, Dr. Ball indicated by his mark his agreement with 

the following pre-printed statement. 

The member is not permanently incapacitated for the 

performance of duties using the occupational characteristics 

developed by the U.S. Department of Labor for the positions 

of police officer - government service or fire fighter - any 

industry. 

(Emphasis sic.) 

{¶33} The form provides the following query to the physician: 

Based on the review of the records submitted to me, 

the following diagnoses and whole person 

impairment evaluations are made: 

{¶34} Thereunder, beside his listing of the "Psych" diagnosis, Dr. Ball indicated a 

25 percent whole person impairment. Beside that, Dr. Ball wrote in his own hand: 
No. 13AP-569 15 

Not permanent in my opinion. (Not maximally medically 

improved since no treatment to date by mental health 

professionals.) 

{¶35} Also, beside his listing of "High Blood Pressure" as a diagnosis, Dr. Ball 

indicated a 9 percent whole person impairment. 

{¶36} The form provides an additional query to the physician: 

Based on the review of the records submitted to me, 

the final estimated whole-person impairment 

evaluation is: 

{¶37} In the space provided to indicate the percentage, Dr. Ball drew a line 

apparently to indicate no percentage. 

{¶38} 14. Also on October 14, 2009, Dr. Ball issued a two-page narrative report. 

Dr. Ball extensively discussed the reports of Drs. Forte and Smith. 

{¶39} Regarding the physical conditions addressed by Dr. Forte, Dr. Ball 

concluded: 

I do not think that there is adequate documentation to 

support these physical impairments as being disabling, 

either temporarily or permanently. 

{¶40} Regarding the psychological conditions addressed by Dr. Smith, Dr. Ball 

opined: 

As I noted on the two-page DEP summary form, without 

treatment by mental health professionals and onset of these 

symptoms in relation to a criminal investigation one year 

ago, I don't see these impairments as being maximally 

medically improved. 

{¶41} 15. On October 20, 2009, vocational expert W. Bruce Walsh, Ph.D., 

completed a "Vocational Recommendation For Disability Evaluation Panel (DEP) 

Hearing," on a form provided by OP&F. 

{¶42} The form asks the vocational expert to state: 

Degree of Earnings Capacity Damage (minimal, mild, 

moderate, severe or extreme) based on the criteria set forth 

in Schedule I: 

{¶43} In the space provided, Dr. Walsh wrote "Deferred" in his own hand. 
No. 13AP-569 16 

{¶44} 16. Page two of the form completed by Dr. Walsh on October 20, 2009 is 

captioned "Vocational Consultant's Comments After Receipt [o]f [t]he DEP Physician's 

Conclusions [a]nd [t]he Oral Discussion [a]t [t]he DEP Meeting." 

{¶45} Thereunder, the form provided the following two queries, and Dr. Walsh 

responded in the spaces provided on October 26, 2009: 

[One] Additional factors provided by the DEP 

physicians and the oral discussion at the DEP 

meeting dated October 26, 2009 in making the 

following revised determination of the Degree of 

Earnings Capacity Damage (minimal, mild, 

moderate, severe or extreme) based on the criteria 

set forth in Schedule I: 

a) Determination: No loss in earnings. 

b) Factors: He is not incapacitated. 

(Emphasis sic.) 

{¶46} 17. On October 26, 2009, the DEP met to determine a recommendation to 

the board regarding relator's application for a disability benefit. On that date, the DEP 

issued a statement signed by the DEP chairman: 

Based on the Disability Evaluation Panel Recommendations 

of Dr. Ball, dated October 14, 2009, and the Vocational 

Recommendation for the Disability Evaluation Panel of Dr. 

Walsh, dated October 26, 2009, the Disability Committee 

recommends Mr. Willoughby's initial disability application 

be denied. 

{¶47} 18. By letter dated October 28, 2009, on behalf of the board, Member 

Services Director N. Kay Penn informed relator: 

By action of the Board of Trustees, your application for 

disability benefits was disapproved. In reaching its decision, 

the Board relied upon the entire record which includes your 

personal history file and medical evidence obtained in 

conjunction with your application for disability benefits. 

Based upon the medical evidence, and considering your 

training, experience and accomplishments, the Board finds 

that you are not disabled. 
No. 13AP-569 17 

{¶48} 19. Pursuant to Ohio Adm.Code 742-3-05(E), relator timely appealed the 

initial determination of the board that denied relator's application for a disability 

benefit. 

{¶49} 20. In support of his appeal, relator submitted an undated two-page 

narrative report from Dr. Doriott, stating: 

I have read the reports from Dr. Thomas Forte and Dr. 

Delaney Smith related to my patient, David H. Willoughby. 

After re-evaluating his condition, I still believe that he is 

disabled and the likelihood that he will be able to return to 

the workforce in any capacity is severely limited. I do not 

know when and if he will be rehabilitated enough to return to 

any skilled type occupation, but it is clear to me that it will 

not be within the next year. Because of this, I disagree with 

the Disability Evaluation Panel that Mr. Willoughby is not 

incapacitated based on the medical conditions for which I 

am treating him. 

Hypertension

I agree with Dr. Forte's diagnoses of hypertension. I have 

prescribed the patient Metoprolol, 50 mg, bid, for the past 

several months. I have not seen any significant improvement 

in his blood pressure despite this medication. I will be 

monitoring this condition on an ongoing basis and will 

adjust treatment and medications as needed. I believe Mr. 

Willoughby suffers from a 10% Whole Person Impairment 

based on this condition. 

Chest Pain

I also agree with Dr. Forte's diagnoses of chest pain. The 

cause of this chest pain is not known, but is likely to be the 

result of Mr. Willoughby's psychiatric condition. I believe 

that Mr. Willoughby suffers from a 2% Whole Person 

Impairment based on this condition. 

Migraine Headaches

Mr. Willoughby continues to suffer from migraine 

headaches. I do not know the cause of the migraines, but 

attribute it to the patient's depression. I believe that Mr. 

Willoughby suffers from a 2% Whole Person Impairment 

based on this condition. 

 
No. 13AP-569 18 

Psychiatric Conditions

I agree with Dr. Smith's diagnosis of Major Depressive 

Disorder. I have prescribed the patient Celexa, 40mg, qd for 

his various psychiatric disorders. The medication has worked 

to slightly lower the patient's feelings of depression and will 

be continued indefinitely. 

I have diagnosed Mr. Willoughby with Post-Traumatic Stress 

Disorder, although Dr. Smith cites it as a symptom of Major 

Depressive Disorder. Mr. Willoughby continues to show 

symptoms of PTSD, including flashbacks, sleep disturbances 

(night terrors), insomnia, avoidance and hyper vigilance. 

Because of his increases [sic] symptoms, including hyper 

vigilance and flashbacks, I have recommended to Mr. 

Willoughby and his family that he remove all firearms from 

his residence. He reports to me that all firearms have been 

sold and he no longer has any type of weapon in his house. 

I also have diagnosed Mr. Willoughby with Generalized 

Anxiety Disorder. His symptoms have caused him to be 

unable to deal with everyday life functions, such as family 

relationships, sexual relationships, and occupational 

potential. 

I have prescribed Mr. Willoughby Ambien 10mg, qd. He 

reports that the Ambien has helped with his insomnia, but 

has not improve[d] the re-occurrences of night errors and 

other sleep disturbances. 

Conclusion

Based upon my examination and a review of the records for 

this patient, I believe that he has [a] Whole Person 

Impairment of 54% and is incapacitated based on these 

impairments. This disability is not likely to improve and the 

incapacitation has and will continue to restrict his ability to 

work, which will unfortunately cause a substantial loss of 

income to him and his family. 

{¶50} 21. OP&F requested from Breslin, an addendum report following his 

review of Dr. Doriott's undated narrative report. On February 18, 2010, Breslin wrote: 

The following materials were included. 

 My original Vocational Evaluation report, dated 

09/25/2009. 
No. 13AP-569 19 

 Re-Evaluation of Patient David H. Willoughby from 

Elizabeth A. Doriott, D.O., undated. 

Based upon my review of the above information, I would not 

change my original opinion. In her report of July 7, 2009, 

Dr. Doriott indicated that Mr. Willoughby would be "unable 

to function as an officer of the law." I took this assessment 

into account in my evaluation and came to the same 

conclusion under section 6, Evaluator's Conclusions and 

Recommendations. Dr. Doriott again indicated that Mr. 

Willoughby's "incapacitation has and will continue to restrict 

his ability to work." She does not, however, specifically state 

to what degree Mr. Willoughby will be restricted. In the 

absence of any new information, I have assumed that the 

restriction on work remains the inability to return to his 

accustomed work as a Police Officer. 

If it is Dr. Doriott's intention to indicate that Mr. Willoughby 

is unable to perform any job, then that would obviously 

change my vocational opinion, however, it is not clear to me 

that this is her meaning. 

{¶51} 22. OP&F requested from Dr. Smith an additional report following his 

review of Dr. Doriott's undated narrative report. On March 7, 2010, Dr. Smith issued an 

additional report, stating: 

I evaluated Mr. Willoughby on August 22, 2009 in order to 

address several questions posed by the Ohio Police and Fire 

Pension Board. I diagnosed him with Major Depressive 

Disorder, Single, Moderate, Anxiety Disorder Not Otherwise 

Specified with features of Post Traumatic Stress Disorder 

and panic disorder with a poor prognosis for future recovery 

to the point of being able to return to work as a police officer. 

At that time I opinioned with a reasonable degree of medical 

certainty that he was disabled from his work as a police 

officer based on his psychiatric conditions, that his mental 

health problems were not caused by his work as a police 

officer and developed after he was employed as a police 

officer but while on administrative leave. I opined that as a 

result of these problems he had a whole person impairment 

of 25%. 

A review of the additional information provided to me did 

not change my opinion with regard to his diagnosis, 

prognosis, or disability. However, it is my opinion with 
No. 13AP-569 20 

reasonable medical certainty, that there is some information 

which warrants a re-evaluation of the whole person 

impairment which I assigned at the time of my examination. 

According to the report of Dr. Elizabeth Doriott, D.O., Mr. 

Willoughby has been experiencing flashbacks which he did 

not report to me. He also had symptoms of such severity that 

Dr. Doriott told his family to remove all firearms from the 

residence which would suggest some concerns regarding 

suicidality which he did not disclose to me. She reported that 

"His symptoms have caused him to be [unable] to deal with 

everyday life functions, such as family relationships, sexual 

relationships, and occupational potential." However, there 

are no specific examples cited of the difficulties or their 

severity. She went on to assign a whole person impairment of 

40% based upon his emotional conditions. If an exact 

percentage is required by the Board I would recommend 

another evaluation to determine the extent of these 

impairments mentioned by Dr. Doriott, to evaluate suicidal 

thoughts as this could change his diagnosis from moderate to 

severe depression, and to examine if his whole person 

impairment is in fact higher th[a]n the 25% I originally 

assigned him. 

{¶52} 23. On May 14, 2010, at the request of OP&F, vocational consultant 

Bruce S. Growick, Ph.D., completed page one of a form captioned "Vocational 

Recommendation For Appeal Hearing." Page one of the form has three sections. 

Section III asks the vocational consultant to select one of five pre-printed answers to the 

query "Degree of Earnings Capacity Damage * * * based on the criteria set forth in 

Schedule II." Given a choice of "minimal, mild, moderate, severe or extreme," Growick 

selected "minimal." 

{¶53} On May 25, 2010, Growick completed page two of the form. Growick 

wrote "minimal" in response to the following two-part query: 

Additional factors provided by the oral testimony as 

well as any new evidence submitted for the appeal 

hearing dated May 25, 2010 in making the following 

revised determination of the Degree of Earnings 

Capacity Damage (minimal, mild, moderate, severe 

or extreme) based on the criteria set forth in 

Schedule II: 

a) Determination: 
No. 13AP-569 21 

b) Factors: 

(Emphasis sic.) 

{¶54} 24. Pursuant to Ohio Adm.Code 742-3-05(A)(11), the board appoints a 

medical advisor to advise the board during its deliberations of appeals of decisions 

relating to disability applications. 

{¶55} 25. Pursuant to Ohio Adm.Code 742-3-05 (A)(11), the board appointed 

Manuel Tzagournis, M.D., as medical advisor. 

{¶56} 26. OP&F provides a four-page form captioned "Medical 

Recommendation [f]or Appeal Hearings [b]y OP&F Medical Advisor." The form 

contains five sections captioned as follows: 

Section I - MEMBER INFORMATION 

Section II - INITIAL DETERMINATION 

Section III - OP&F MEDICAL ADVISOR'S RECOMMENDATIONS 

Section IV - INFORMATION MEDICAL ADVISOR 

RELIED ON IN MAKING DETERMINATIONS 

Section V - MEDICAL ADVISOR'S COMMENTS 

AFTER ORAL TESTIMONY AND RECEIPT OF ANY 

NEW EVIDENCE AT THE APPEAL HEARING 

(Emphasis sic.) 

{¶57} Initially, at the top of page one, the form instructs: 

Evaluation

In order to evaluate the medical impairment and any 

resultant disability of the member named in Section I below, 

the recommendations set forth in Section III are based on 

the methods of analysis described in the American Medical 

Association's (AMA) Guides to the Evaluation of Permanent 

Impairment, Fifth Edition and the occupational 

characteristics developed by the U.S. Department of Labor 

for the positions of "police officer (government service)" and 

"fire fighter (any industry)." 

In reviewing the member's records, the OP&F Medical 

Advisor must accept all findings of the examining physicians, 

but not the opinions drawn therefrom. In addition, the OP&F 

Medical Advisor should note all medical reports on record 
No. 13AP-569 22 

that may be relevant to the disability determination being 

made by the OP&F Medical Advisor. 

(Emphasis sic.) 

{¶58} Under "Section II - Initial Determination, Dr. Tzagournis states: 

[One] The Following diagnoses and whole person 

impairment percentage was made by the DEP 

physician on October 14, 2009 at the initial 

determination hearing: 

Percentage of the Whole Person Impairment (Combined 

Value) 0%

Diagnoses: 

(a) High Blood Pressure ... 

(b) Atypical Chest Pain ... 

(c) Hand Paresthesias ... 

(d) Migraine Headaches ... 

(e) Psych (MDD, Anx. Dis. NOS) ... 

(Emphasis sic.) 

{¶59} Under "Section III - OP&F Medical Advisor's Recommendations," Dr. 

Tzagournis indicates that relator has a "5%" whole person impairment for 

"Hypertension" and a "10% (Temporary)" whole person impairment for "Psychiatric 

Symptoms with Features of Depression, Anxiety & Panic Disorder." 

{¶60} Also, under Section III, the form continues with query numbers three, 

four, and five. 

{¶61} Under query number three, Dr. Tzagournis indicates that relator has a 

"15% whole person impairment (Combined Value)." For his remarks, Dr. Tzagournis 

states: 

This individual has developed psychiatric symptoms which 

began in the investigation of problems related to him. He 

had no significant formal treatment of the psychiatric 

disorder prior to some of his examinations. I believe the 

information I reviewed indicates he is disabled for 

performing police work, although the condition can not be 

classified as permanent with great certainty. One of the 

examiners felt that this was a temporary condition and he 
No. 13AP-569 23 

should be reexamined after a period of treatment and 

therapy. 

{¶62} Thereunder, Dr. Tzagournis remarked:

Explanation: I believe that since he has been having 

symptoms since October of 2009, I am unable to determine 

whether this condition is permanent or temporary. 

Therefore, my recommendation to the Board, prior to the 

actual meeting with this individual, he be considered 

temporarily disordered and he be reexamined after a period 

of treatment of approximately six months. 

{¶63} Under query number five, Dr. Tzagournis indicates by his mark his 

agreement with the following pre-printed statement: 

The alleged disability was not caused or induced by the 

member's employment. 

 Thereunder, Dr. Tzagournis explains: 

Explanation: I do not find sufficient evidence to declare this 

an on-duty disability. Accordingly, my opinion is the 

disability was not caused or induced by the member's work. 

(Emphasis sic.) 

{¶64} Under Section V of the form, which Dr. Tzagournis signed on May 25, 

2010, Dr. Tzagournis states: 

The undersigned medical advisor has reviewed on May 25, 

2010 the oral testimony, the evidence referenced in Section 

IV of the Medical Recommendation for Appeal Hearings, as 

well as any evidence handed out during the appeal hearing 

(listed below) in making the recommendations in Section V. 

(Emphasis sic.) 

{¶65} Also under Section V of the form, Dr. Tzagournis certifies as follows: 

Physician Certification - On the date set forth below, the 

undersigned, a physician licensed to practice medicine, and 

as medical advisor to the Ohio Police & Fire Pension Fund's 

(OP&F) Board of Trustees certifies that he has considered 

the oral testimony and examined the medical information 

described in Section IV for the appeal hearing of the member 
No. 13AP-569 24 

named in Section I and makes the diagnoses and evaluation 

described herein. 

{¶66} 27. On May 25, 2010, the board heard relator's administrative appeal 

pursuant to Ohio Adm.Code 742-3-05(E). Relator appeared before the board and was 

sworn. 

{¶67} 28. Thereafter, the board issued its final order captioned "Findings of Fact 

on Disability Appeal," dated May 25, 2010. Signed by the board's chair, the board's 

May 25, 2010 order states: 

After review of all evidence noted in the Medical 

Recommendation for Appeal Hearings of Dr. Tzagournis, 

dated May 25, 2010, the Vocational Recommendation for 

Appeal Hearing of Dr. Growick [sic], dated May 14, 2010, 

and the additional evidence presented at the appeal hearing 

the Board finds that Mr. Willoughby's appeal of his initial 

disability application be denied. 

(Emphasis sic.) 

{¶68} 29. By letter dated May 26, 2010, the board informed relator that his 

application was denied. 

{¶69} 30. On July 2, 2013, relator, David H. Willoughby, filed this mandamus 

action. 

Conclusions of Law: 

{¶70} It is the magistrate's decision that this court issue a writ of mandamus, as 

more fully explained below. 

{¶71} On the date that relator filed his application for a disability benefit, i.e., 

June 5, 2009, and at all subsequent times up to the board's May 2010 decision denying 

the application, former R.C. 742.38 provided: 

(C) For purposes of determining under division (D) of this 

section whether a member of the fund is disabled, the board 

shall adopt rules establishing objective criteria under which 

the board shall make the determination. The rules shall 

include standards that provide for all of the following: 

(1) Evaluating a member's illness or injury on which an 

application for disability benefits is based; 
No. 13AP-569 25 

(2) Defining the occupational duties of a police officer or 

firefighter; 

(3) Providing for the board to assign competent and 

disinterested physicians and vocational evaluators to 

conduct examinations of a member; 

(4) Requiring a written report for each disability application 

that includes a summary of findings, medical opinions, 

including an opinion on whether the illness or injury upon 

which the member's application for disability benefits is 

based was caused or induced by the actual performance of 

the member's official duties, and any recommendations or 

comments based on the medical opinions; 

(5) Providing for the board to consider the member's 

potential for retraining or reemployment. 

(D) * * * 

(1) As used in division (D)(1) of this section: 

(a) "Totally disabled" means a member of the fund is unable 

to perform the duties of any gainful occupation for which the 

member is reasonably fitted by training, experience, and 

accomplishments. Absolute helplessness is not a prerequisite 

of being totally disabled. 

(b) "Permanently disabled" means a condition of disability 

from which there is no present indication of recovery. 

A member of the fund who is permanently and totally 

disabled as the result of the performance of the member's 

official duties as a member of a police or fire department 

shall be paid annual disability benefits in accordance with 

division (A) of section 742.39 of the Revised Code. In 

determining whether a member of the fund is permanently 

and totally disabled, the board shall consider standards 

adopted under division (C) of this section applicable to the 

determination. 

(2) A member of the fund who is partially disabled as the 

result of the performance of the member's official duties as a 

member of a police or fire department shall, if the disability 

prevents the member from performing those duties and 

impairs the member's earning capacity, receive annual 
No. 13AP-569 26 

disability benefits in accordance with division (B) of section 

742.39 of the Revised Code. In determining whether a 

member of the fund is partially disabled, the board shall 

consider standards adopted under division (C) of this section 

applicable to the determination. 

(3) A member of the fund who is disabled as a result of heart 

disease or any cardiovascular or respiratory disease of a 

chronic nature, which disease or any evidence of which 

disease was not revealed by the physical examination passed 

by the member on entry into the department, is presumed to 

have incurred the disease while performing the member's 

official duties, unless the contrary is shown by competent 

evidence. 

(4) A member of the fund who has completed five or more 

years of active service in a police or fire department and has 

incurred a disability not caused or induced by the actual 

performance of the member's official duties as a member of 

the department, or by the member's own negligence, shall if 

the disability prevents the member from performing those 

duties and impairs the member's earning capacity, receive 

annual disability benefits in accordance with division (C) of 

section 742.39 of the Revised Code. In determining whether 

a member of the fund is disabled, the board shall consider 

standards adopted under division (C) of this section 

applicable to the determination. 

{¶72} In State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 

62, 2011-Ohio-4677, the Supreme Court of Ohio held that former R.C. 742.38(D)(4) 

does not restrict benefits to members of the fund with permanent disabilities and, 

therefore, this court erred in concluding that former R.C. 742.38(D)(4) does not 

authorize benefits for temporary disabilities. 

{¶73} In Tindira, the court issued a writ of mandamus ordering OP&F to grant 

the claim of Thomas J. Tindira ("Tindira") for a disability benefit under former R.C. 

742.38(D)(4) and to determine the amount of benefits in accordance with R.C. 

742.39(C). 

{¶74} In Tindira, the court found that Tindira had established: (1) he is a 

member of the fund who had completed five or more years of active service in a police 

department; (2) he incurred a disability not caused or induced by the actual 
No. 13AP-569 27 

performance of his official duties as a police officer or his own negligence; (3) he is 

prevented by the disability from performing those duties; and (4) he has an impaired 

earning capacity. Based on those findings, the Tindira court concluded that Tindira had 

established his entitlement to a disability benefit. 

{¶75} Effective January 7, 2013, pursuant to S.B. No. 340, the Ohio Legislature 

amended former R.C. 742.38 (D), which currently provides: 

As used in this division: 

"Totally disabled" means a member of the fund is unable to 

perform the duties of any gainful occupation for which the 

member is reasonably fitted by training, experience, and 

accomplishments. Absolute helplessness is not a prerequisite 

of being totally disabled. 

"Permanently disabled" means a condition of disability from 

which there is no present indication of recovery. 

(1) A member of the fund who is permanently and totally 

disabled as the result of the performance of the member's 

official duties as a member of a police or fire department 

shall be paid annual disability benefits in accordance with 

division (A) of section 742.39 of the Revised Code. In 

determining whether a member of the fund is permanently 

and totally disabled, the board shall consider standards 

adopted under division (C) of this section applicable to the 

determination. 

(2) A member of the fund who is permanently and partially 

disabled as the result of the performance of the member's 

official duties as a member of a police or fire department 

shall, if the disability prevents the member from performing 

those duties and impairs the member's earning capacity, 

receive annual disability benefits in accordance with division 

(B) of section 742.39 of the Revised Code. In determining 

whether a member of the fund is permanently and partially 

disabled, the board shall consider standards adopted under 

division (C) of this section applicable to the determination. 

(3) A member of the fund who is permanently disabled as a 

result of heart disease or any cardiovascular or respiratory 

disease of a chronic nature, which disease or any evidence of 

which disease was not revealed by the physical examination 

passed by the member on entry into the department or 
No. 13AP-569 28 

another examination specified in rules the board adopts 

under section 742.10 of the Revised Code, is presumed to 

have incurred the disease while performing the member's 

official duties, unless the contrary is shown by competent 

evidence. The board may waive the requirement that the 

absence of disease be evidenced by a physical examination if 

competent medical evidence of a type specified in rules 

adopted under section 742.10 of the Revised Code is 

submitted documenting that the disease was not evident 

prior to or at the time of entry into the department. 

(4) A member of the fund who has five or more years of 

service credit and has incurred a permanent disability not 

caused or induced by the actual performance of the 

member's official duties as a member of the department, or 

by the member's own negligence, shall if the disability 

prevents the member from performing those duties and 

impairs the member's earning capacity, receive annual 

disability benefits in accordance with division (C) of section 

742.39 of the Revised Code. In determining whether a 

member of the fund is permanently disabled, the board shall 

consider standards adopted under division (C) of this section 

applicable to the determination. 

{¶76} With respect to R.C. 742.38(D)(4) as it currently reads, the magistrate 

notes that, effective January 7, 2013, the legislature added the word "permanent" to 

immediately precede the word "disability" in the first sentence of R.C. 742.38(D)(4) and 

that the legislature added the word "permanently" to immediately precede the word 

"disabled" in the second sentence of R.C. 742.38(D)(4). 

{¶77} Presumably, the legislature's amendment of former R.C. 742.38 was a 

response to the Tindira court's holding that interpreted former R.C. 742.38(D)(4) in a 

manner that allows a disability benefit for temporary disability. 

{¶78} Presumably, the January 7, 2013 amendment of former R.C. 742.38(B)(4) 

is not applicable to relator's situation. That is, relator can claim a benefit under former 

R.C. 742.38(B)(4). 

{¶79} To reiterate, the May 25, 2010 board's order states: 

After review of all evidence noted in the Medical 

Recommendation for Appeal Hearings of Dr. Tzagournis, 

dated May 25, 2010, the Vocational Recommendation for 

Appeal Hearing of Dr. Growick [sic], dated May 14, 2010, 
No. 13AP-569 29 

and the additional evidence presented at the appeal hearing 

the Board finds that Mr. Willoughby's appeal of his initial 

disability application be denied. 

(Emphasis sic.) 

{¶80} Given the board's reliance upon the reports of Dr. Tzagournis and 

Growick, the board was compelled to grant a disability benefit pursuant to former R.C. 

742.38(D)(4). 

{¶81} As earlier noted, in his May 24, 2010 report, Dr. Tzagournis states: 

This individual has developed psychiatric symptoms which 

began in the investigation of problems related to him. He 

had no significant formal treatment of the psychiatric 

disorder prior to some of his examinations. I believe the 

information I reviewed indicates he is disabled for 

performing police work, although the condition can not be 

classified as permanent with great certainty. One of the 

examiners felt that this was a temporary condition and he 

should be reexamined after a period of treatment and 

therapy. 

* * * 

Explanation: I believe that since he has been having 

symptoms since October of 2009, I am unable to determine 

whether this condition is permanent or temporary. 

Therefore, my recommendation to the Board, prior to the 

actual meeting with this individual, he be considered 

temporarily disordered and he be reexamined after a period 

of treatment of approximately six months. 

{¶82} Also, Dr. Tzagournis indicated by his mark his agreement with the 

following pre-printed statement: 

The member is not permanently incapacitated for the 

performance of duties using the occupational characteristics 

developed by the U.S. Department of Labor for the positions 

of police officer - government service or fire fighter - any 

industry. 

(Emphasis sic.) 
No. 13AP-569 30 

{¶83} Also, Dr. Tzagournis opined that "the alleged disability was not caused or 

induced by the member's employment." (Emphasis sic.) 

{¶84} Clearly, it was the opinion of Dr. Tzagournis that relator is unable to 

return to police work, but he was uncertain as to whether the condition is permanent or 

temporary. Under the Tindira court's interpretation of former R.C. 742.38(D)(4), the 

board cannot deny the disability benefit on grounds that Dr. Tzagournis was unable to 

determine whether the condition is permanent or temporary. Under former R.C. 

742.38(D)(4), it does not matter whether the condition is permanent or temporary. 

Under either circumstance, relator is entitled to a former R.C. 742.38(D)(4) benefit. 

{¶85} As earlier noted, in his May 14, 2010 report upon which the board relied, 

vocational consultant Bruce Growick opined that relator has "minimal" earnings 

capacity damage. In other words, relator does have some earnings capacity damage 

based upon Growick's report. 

{¶86} Moreover, the September 25, 2009 vocational evaluation of Robert 

Breslin, as quoted in the findings of fact, establishes that relator meets the requirements 

under former R.C. 742.38(D)(4) and that he is a member of the fund who has completed 

five or more years of active service in a police department. 

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

this court issue a writ of mandamus ordering respondent to vacate its May 25, 2010 

order denying relator's disability application, and to enter an order that grants relator a 

disability benefit under former R.C. 742.38(D)(4). 

 /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).