[Cite as Weigel v. Ohio Bd. of Nursing, 2014-Ohio-4069.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Jeanette Sue Weigel, : 

 

 Appellant-Appellant, : 

 No. 14AP-283 

v. : (C.P.C. No. 13CV-8936)

Ohio Board of Nursing, : (REGULAR CALENDAR) 

 Appellee-Appellee. : 

 

D E C I S I O N 

Rendered on September 18, 2014 

 

Jeanette Sue Weigel, pro se. 

Michael DeWine, Attorney General, and Henry G. Appel, for 

appellee. 

 

APPEAL from the Franklin County Court of Common Pleas 

PER CURIAM. 

{¶ 1} Appellant, Jeanette Sue Weigel, appeals from a judgment of the Franklin 

County Court of Common Pleas affirming the order of appellee, Ohio Board of Nursing 

("the board"), indefinitely suspending appellant's license to practice as a licensed practical 

nurse ("LPN"). For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} In December of 2011, appellant pleaded no contest to a charge of disorderly 

conduct with persistence. The police report described the incident giving rise to the 

charge: on October 28, 2011, appellant was involved in a crash in a grocery store's parking 

lot. According to witnesses, appellant crashed her vehicle into a sign at a relatively high 

rate of speed, exited the vehicle screaming, and went inside the store. Once inside, 
No. 14AP-283 2 

appellant continued screaming at an employee in the store's pharmacy and "talking 

incoherently." (R. 345.) A police officer responding to the scene described appellant as 

"hysterical." (R. 346.) The responding police officers asked appellant to walk outside and 

perform a field sobriety test; appellant refused. The police officers then escorted 

appellant outside as she continued to yell, handcuffed her, and placed her in their vehicle. 

{¶ 3} After pleading no contest to disorderly conduct, the court ordered appellant 

to undergo a mental health and substance abuse evaluation by a court-approved provider 

as part of her probation. Arrowhead Behavioral Health ("Arrowhead") evaluated 

appellant on April 27, 2012 and found no further treatment was necessary "due to lack of 

criteria for substance abuse treatment." (R. 353.) 

{¶ 4} On September 4, 2012, the board ordered appellant to undergo a mental 

evaluation, pursuant to R.C. 4723.258, after finding "reason to believe that [appellant has] 

a physical or mental impairment that may affect [appellant's] ability to provide safe 

nursing care." (R. 317.) The board ordered appellant to submit to the examination at 

OSU Harding Hospital in Columbus. Appellant was required to contact the hospital 

within ten days to schedule the evaluation and had 90 days to undergo the examination. 

Pursuant to statute, appellant was required to pay for the examination. Appellant did not 

schedule an examination because she believed her assessment at Arrowhead would be 

sufficient to satisfy the board-mandated mental examination. According to appellant, she 

contacted Arrowhead and requested that a copy of her assessment from April 2012 be 

faxed to the board. The board did not receive the assessment until February 19, 2013, 

after the 90-day period for undergoing the ordered examination had passed and after the 

board issued a default order on January 25, 2013. 

{¶ 5} In the board's default order, it explained that appellant failed to submit to a 

mental examination and that the board had not received information that the failure was 

due to circumstances beyond appellant's control. Accordingly, the board found 

appellant's failure to submit to the mental examination was, pursuant to R.C. 

4723.28(B)(16) and (G), an admission of the allegations in the evaluation order. The 

board indefinitely suspended appellant's license to practice nursing and imposed 

conditions in order for appellant to have the license reinstated. 
No. 14AP-283 3 

{¶ 6} Appellant requested a hearing regarding the default order. The board 

scheduled the hearing and clarified that the issue was limited to whether her failure to 

schedule and attend the examination was due to circumstances beyond her control. On 

May 9, 2013, the board's chief hearing examiner conducted a hearing where the parties 

presented evidence and testimony. On July 10, 2013, the hearing officer found appellant's 

failure to attend the examination was not due to circumstances beyond her control, 

thereby establishing the board's allegations as true. The hearing officer recommended the 

board uphold appellant's indefinite suspension and conditions for reinstatement. 

Appellant objected to the hearing officer's report and recommendation. The board 

overruled appellant's objections and accepted the hearing officer's recommendation on 

July 26, 2013. 

{¶ 7} Appellant appealed the board's decision to the Franklin County Court of 

Common Pleas. However, appellant did not file a brief in support of her appeal below and 

did not respond to the board's motion for judgment on the record. The trial court 

thoroughly reviewed the board's decision and affirmed the decision. Appellant timely 

appealed that decision to this court. 

II. Assignments of Error 

{¶ 8} Appellant assigns the following five errors for our review: 

[1.] Error; In fact finding of this Case; within a Revised Code 

119.12, administrative appeal, from an Adjudication Order 

that was mailed to Appellant on August 1, 2013, by The Ohio 

Board of Nursing. In that Adjudication Order, The Board 

indefinitely suspended Appellant's license to practice as a 

licensed practical nurse (LPN), in the state of Ohio, with 

conditions for reinstatement. The error that would present 

itself within the Adjudication Order, as was presented; would 

be within the content of reference to the Letter of September 

4th, 201[2], from The Ohio Board of Nursing. 

[2.] Error; In a Report from the Perrysburg police (Report), 

that was inaccurate in content, of statements and facts, of the 

incident, that was reported in Perrysburg, Ohio, at a Kroger's 

parking lot. The information, in the original Order, from the 

September Letter, of September 4th, 2012, states, that this 

Order, was based on all or part of the information referenced; 

in the Perrysburg Police Report, there in, therefore, her[e]by 

Ordered to submit to a mental examination, specifically 
No. 14AP-283 4 

addressing your ability to safely function in a clinical nursing 

capacity by OSU Harding Hospital, Neuroscience Facility 

("OSU"), within (90) days of the mailing of this Order. 

[3.] The Error; In Reporting, has contributed to the request 

for an examination, assessment and written evaluation at 

OSU Harding Hospital, Neuroscience Facility ("OSU"). 

[4.] Error; In The Fact finding of the impossible of funds or 

availability to secure a loan, on unemployment of $134.00 a 

week, and that no credit cards were owned, by, PlaintiffAppellant, at the time of this Original Order, on 

September 4th, 2012. The Order, stating; Pursuant to Section 

4723.28(G), ORC, You must make payment in advance to 

OSU, in the form of a check or money order, before your 

examination appointment. According to Section 4723.28(G), 

ORC, it is stated; with a sentence, (2.), of this Section(G)'s, 

paragraph; (an exception of admission to a mental or physical 

examination), of when directed constitutes an admission of 

the allegations, (Sentence 2.) states; (unless the failure is due 

to circumstances beyond the individual's control,) in which, in 

fact finding, could have been presented; (in fact the failure 

was due to circumstances beyond the Plaintiff-Appellant, 

Jeanette Sue Weigel's control, in the definition of a hardship, 

(See Unemployment Section of this Brief, under, (Table of 

Authorities), #4.) Definition under this Act, and, of Restoring 

Stability Program; "A Verifiable Financial Hardship: (i.e. 

involuntary loss of income, reduction of wages or hours, etc...) 

A household income of less than 115 percent of the county 

area median income. (this, being an Ohio State supported 

definition) and at the federal level as well, per the signature of 

the director of Unemployment, Michael B. Colbert, and under 

Governor, John R. Kasich.) This would be proven as a 

hardship, by definition, and in the realm of failure due to 

circumstances beyond the individual's control. Further, 

proving the impossibility and availability to make payment in 

advance, of an appointment, to OSU Harding Hospital, 

further discounting any admission of the allegations, in 

context, of Section 4723.28(G.), ORC. (Failure of an 

individual to submit to a mental or physical examination, 

when directed constitutes an admission of the allegations.) 

This would prove to be pretense at best. It presents itself, with 

no completeness of actual facts, within that statement, with 

no sustaining evidence or evaluation, to support such a 

statement. It proves nothing but a statement of presumption. 
No. 14AP-283 5 

Presuming: (To undertake without permission or good 

reason.) (To support to be True without Proof.) 

[5.] The Hearing and Adjudication Process, show errors: from 

statement, of Representation of the State of Ohio Board of 

Nursing, in proof of defining, and showing proof, of earned 

income, in which to have been able within (90) days to have 

met the criteria, in which was ordered, by the September 4th, 

2012, Letter, from the Ohio Board of Nursing, requesting an 

assessment/evaluation, at OSU Harding Hospital, Neuroscience Dept., and payment to be mad[e] in advance of 

appointment, in the form of check or money order. 

a) No Proof of payment was presented in cycles of pay 

periods, as validated amounts of money, in which to have 

made payment in a timely fashion, of the (90) day 

requirement. Employment time and pay periods, would not 

have met the criteria, as the scheduled pay periods, would not 

have produced the amount of income for this assessments, 

cost, as OSU, to be paid in advance of an appointment. Time 

frame of (90) days and paid in advance, with an appointment 

being made, an payment being made in advance, of that 

appointment. Letter was dated September 4th, 2012. 

Payments of employment had hold back dates, in two week 

periods, and a one week original, week, hold back, at start of 

employment, initially. 

(Sic passim.) 

III. Standard of Review 

{¶ 9} When reviewing an order of an administrative agency, a common pleas 

court must consider the entire record to determine whether reliable, probative, and 

substantial evidence supports the agency's order and whether the order is in accordance 

with law. Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing, 10th Dist. No. 13AP-1020, 

2014-Ohio-2422, ¶ 12, citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11 

(1980). The Supreme Court of Ohio has defined reliable, probative, and substantial 

evidence as follows: 

(1) "Reliable" evidence is dependable; that is, it can be 

confidently trusted. In order to be reliable, there must be a 

reasonable probability that the evidence is true. (2) 

"Probative" evidence is evidence that tends to prove the issue 

in question; it must be relevant in determining the issue. (3) 
No. 14AP-283 6 

"Substantial" evidence is evidence with some weight; it must 

have importance and value. 

Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). 

{¶ 10} A court of appeals' review is more limited in that it does not determine the 

weight of the evidence. Richmond v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-328, 2013-

Ohio-110, ¶ 8, citing Levine v. State Med. Bd., 10th Dist. No. 10AP-962, 2011-Ohio-3653, 

¶ 13. The appellate court is to only determine whether the common pleas court abused its 

discretion. Id. An "abuse of discretion" implies the trial court's decision was 

unreasonable, arbitrary or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). Absent an abuse of discretion, a court of appeals may not substitute 

its judgment for that of an administrative agency or the common pleas court. Pons v. 

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). An appellate court, however, has 

plenary review of purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 

151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.). 

IV. Discussion 

{¶ 11} Because appellant's assignments of error are interrelated, we will discuss 

them together. 

{¶ 12} Pursuant to R.C. 4723.28(G), the board may compel an LPN to submit to an 

evaluation when the board finds reason to believe the individual may have a "mental 

impairment that may affect the individual's ability to provide safe nursing care." If the 

individual does not attend the evaluation and does not present a sufficient reason, the 

failure to attend "constitutes an admission of the allegations, unless the failure is due to 

circumstances beyond the individual's control." R.C. 4723.28(G). The board may then 

enter an order of default indefinitely suspending a license and imposing conditions for 

reinstatement. The individual has a right to appeal that decision. R.C. 4723.28(B)(16). 

{¶ 13} Here, the board ordered appellant to submit to a mental examination based 

on her conviction on March 16, 2012. Appellant failed to schedule and submit to the 

examination, and a default order was issued indefinitely suspending her license and 

imposing conditions for reinstatement. Appellant appealed that decision and participated 

in a hearing before the hearing officer assigned by the board to determine whether her 
No. 14AP-283 7 

failure to have a mental examination was "due to circumstances beyond her control." (R. 

106.) 

{¶ 14} During the hearing, appellant argued, as she argues here, that she failed to 

schedule and undergo the required examination for two reasons. First, she contends she 

was unable to pay for the evaluation due to circumstances beyond her control. Second, 

appellant believed her evaluation at Arrowhead satisfied the board's requirement for a 

mental examination. The hearing officer rejected both arguments as did the trial court. 

First, under R.C. 4723.28(G), the individual required to submit to a mental evaluation 

must pay the cost of the examination. Appellant testified at the hearing that, when she 

received the default order, she was unemployed and received unemployment 

compensation of $134 per week. She further testified that she began a new job working at 

least 40 hours in November 2012 and began receiving paychecks in late November 2012. 

Appellant began working full time two months before the board entered its default order 

on January 25, 2013. The hearing officer found, based on the evidence presented at the 

hearing, appellant "had sufficient means to pay for the evaluation at the time the 

evaluation was to be completed," and the board adopted this conclusion. (R. 105, 118.) 

{¶ 15} On appeal, the trial court agreed with the board's conclusion that appellant's 

failure to submit to the mental examination for alleged financial reasons was not due to 

circumstances beyond appellant's control, and there was reliable, probative, and 

substantial evidence to support that conclusion. Based on the record before us, we find 

the trial court did not abuse its discretion in affirming the board's decision. 

{¶ 16} Second, appellant's previous court-ordered assessment did not justify her 

failure to submit to the board-ordered mental examination. As a result of her conviction 

for disorderly conduct with persistence, the court placed appellant on probation and 

required her to undergo a court-ordered assessment. She underwent an assessment with 

Arrowhead by a licensed social worker, who concluded appellant did not require further 

evaluation "due to lack of criteria for substance abuse treatment." (R. 353.) In contrast, 

the board ordered appellant to "submit to a mental examination, specifically addressing 

[appellant's] ability to safely function in a clinical nursing capacity." (R. 318.) Based on 

the evidence, the hearing officer found that the Arrowhead assessment did not satisfy the 

board-ordered examination. The hearing officer found the court-ordered assessment was 
No. 14AP-283 8 

related to her criminal proceeding and was not conducted to determine appellant's ability 

to provide safe nursing care. The board adopted the hearing officer's conclusion, and the 

trial court affirmed the board's order. 

{¶ 17} Again reviewing the record before us, we conclude the trial court did not 

abuse its discretion in determining reliable, probative, and substantial evidence supported 

the board's finding that the Arrowhead assessment did not satisfy the requirements of the 

board's order for a mental evaluation specific to appellant's ability to function as an LPN. 

See Smith v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 16. 

{¶ 18} Finally, appellant argues the board based its order requiring a mental 

examination on factual misstatements in the police reports of the incident resulting in her 

no-contest plea and conviction. However, the issue before the hearing officer and the 

board was only whether appellant's failure to submit to a mental examination was due to 

circumstances beyond her control, not whether the board had a good-faith reason to order 

the examination. 

{¶ 19} Because the trial court did not abuse its discretion in determining reliable, 

probative, and substantial evidence supported the board's decision that appellant's failure 

to attend a mental examination was not because of circumstances outside of her control, 

we overrule appellant's five assignments of error. 

V. Conclusion 

{¶ 20} After a thorough and complete review of the record, we conclude the trial 

court did not abuse its discretion by affirming the board's decision, as reliable, probative, 

and substantial evidence supports that decision. Having overruled appellant's five 

assignments of error, we affirm the judgment of the Franklin County Court of Common 

Pleas. 

Judgment affirmed. 

LUPER SCHUSTER, TYACK, and BROWN, JJ., concur