[Cite as State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62, 2011-

Ohio-4677.] 

THE STATE EX REL. TINDIRA, APPELLANT, v. OHIO POLICE & FIRE PENSION 

FUND ET AL., APPELLEES. 

[Cite as State ex rel. Tindira v. Ohio Police & Fire Pension Fund, 

130 Ohio St.3d 62, 2011-Ohio-4677.] 

Police officer with temporary disability may receive disability benefits under R.C. 

742.38(D)—Court of appeals’ decision reversed—Writ granted to compel 

the Ohio Police and Fire Pension Fund and its board of trustees to grant 

officer’s claim for disability benefits. 

(No. 2010-2065—Submitted August 8, 2011—Decided September 20, 2011.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 09AP-1049, 2010-Ohio-5078. 

__________________ 

Per Curiam.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus to 

compel appellees, Ohio Police and Fire Pension Fund (“OP&F”) and its board of 

trustees, to award disability benefits. Because the pension fund and its board 

abused their discretion in denying disability benefits, we reverse the judgment of 

the court of appeals and grant the writ. 

Facts 

OP&F Membership and Employment 

{¶ 2} Appellant, Thomas J. Tindira, became a member of OP&F in April 

1996. Tindira was employed as a patrol officer with the city of Cleveland until he 

resigned in January 1997. At that time, Tindira began working as a police officer 

with the city of Lakewood. 

{¶ 3} In October 2006, Tindira’s girlfriend of four years told him in a 

phone conversation that she had had an affair and that their relationship was over. 
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Tindira then began experiencing psychiatric symptoms that led to his deteriorating 

performance at work. In May 2007, Tindira was placed on administrative leave 

by the Lakewood Police Department after being found unfit for duty. Tindira had 

been accused of sending his ex-girlfriend threatening e-mails. In May 2008, and 

as part of a settlement agreement concerning a pretermination hearing, Tindira 

resigned from his employment with Lakewood. 

Application for Disability Benefits and Initial Denial 

{¶ 4} Before he resigned from the Lakewood Police Department, Tindira 

filed his application for disability benefits with OP&F. In his application, Tindira 

listed his disabling conditions as posttraumatic stress disorder (“PTSD”), anxiety 

disorder, somatization disorder, major depression, and injury to his left lower 

abdomen. Tindira submitted the medical report by his treating physician, 

Timothy Fetterman, M.D., and a psychological report by Eddie E. Myers, Ed.D. 

{¶ 5} Dr. Fetterman diagnosed Tindira with PTSD, anxiety, and 

depression; stated that these conditions limited Tindira’s ability to work, interact 

with others, and sleep; opined that Tindira was not likely to return to duty as a 

police officer and could not work; and certified that Tindira had a disability from 

which there was no present indication of recovery. 

{¶ 6} Myers diagnosed Tindira with major depression with psychotic 

features, anxiety disorder, somatization disorder, and narcissistic personality 

disorder. Myers described Tindira’s symptoms following the breakup with his exgirlfriend, as related to him by Tindira, as follows: 

{¶ 7} “Since that brutal break-up, Detective Tindira has been unable to 

function normally. He has been unable to sleep and has reported numerous 

physical problems, such as a severe gastro-intestinal pain that remains intense and 

constant. More recently, he has reported feeling as if there were a tumor on the 

side of his neck, making it very difficult for him to swallow. He frequently 

describes the electric shock he felt in his brain when he got the disturbing news of 
January Term, 2011 

3 

her affair. He feels that his brain was damaged by the intense flashes of pain. 

Only recently has he been able to identify the deep rage he has felt and the 

difficulty he has had in controlling the impulse to do harm to his former girlfriend 

and her current lover. Both the girl and the broken relationship are the center of 

his obsessions. He has tried to regain his emotional balance since that time, but 

has not been successful in moving from his position of being a victim to a 

devastating event. As a part of therapy, he has tried to resume interest in golfing, 

a sport he once enjoyed. He finds no pleasure in any activity that he engages in. 

He has dated several other girls since the break up, but reports being unable to 

perform sexually with even the most attractive and willing partners. He cannot 

understand how his former girl friend could have done such a thing to him and 

why he has been unable to move on. Unable to sleep, with his sex life destroyed, 

and a collection of increasingly painful physical symptoms, he reports that he 

feels like he has become a victim of a train wreck.” 

{¶ 8} Myers concluded that Tindira “is totally and permanently disabled 

from functioning as a police officer or in any other occupation that by reason of 

experience or training he might be otherwise qualified. Detective Tindira is living 

in his own form of hell and neither medications nor therapy has been able to 

reconstruct the defenses to allow him to return to any form of police duty.” 

{¶ 9} OP&F ordered independent medical and vocational evaluations of 

Tindira. Sylvester Smarty, M.D., conducted a psychiatric evaluation and 

diagnosed Tindira as having major depressive disorder, single episode, moderate, 

without psychotic features, and anxiety disorder. Dr. Smarty found that Tindira’s 

general prognosis was good: 

{¶ 10} “Given that Mr. Tindira has never had any psychiatric problems 

prior to breaking up with his girlfriend, it is my opinion, with reasonable medical 

certainty, that the prognosis for his psychiatric conditions is good. However, his 

prognosis is dependent on whether he receives adequate treatment for his 
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conditions. His treatment should involve psychotherapy to help him deal with the 

psychic injury that he suffered by the breakup and to help him move forward and 

reestablish new relationships.” 

{¶ 11} Dr. Smarty concluded that Tindira “is presently NOT disabled from 

the performance of the duties of a police officer by his psychiatric symptoms.” 

(Capitalization sic.) Dr. Smarty further opined that Tindira had a whole-person 

impairment of 4 percent as a result of his psychiatric conditions. 

{¶ 12} W. Kent Soderstrum, M.D., conducted a physical examination of 

Tindira and determined that he had no physical impairment from work-related 

injuries to his left lower abdomen and left ankle. Dr. Soderstrum concluded that 

from a physical standpoint, Tindira “is capable of safely performing all of the 

aspects of his current job description as a police officer.” 

{¶ 13} In their vocational evaluation of Tindira, Paul T. Kijewski and 

Michael J. Bryan determined that Tindira was temporarily incapacitated from 

performing his duties as a police officer and that the impairment reduced his 

earning capacity: 

{¶ 14} “In conclusion, we find that Mr. Tindira is not capable of 

performing the duties of police officer at the present time due to his emotional 

difficulties. However, we see his condition as temporary. His mental health may 

improve with ongoing therapy and medication, which he is currently receiving. In 

a sense, he does have transferable skills and vocational options. However, all of 

these jobs have wage levels [that are] considerably less than he has earned as a 

police officer and detective for the Lakewood Police Department.” 

{¶ 15} A disability-evaluation panel concluded that based on the evidence, 

Tindira had a 5 percent whole-person impairment and was not incapacitated for 

the performance of his duties. The panel recommended that Tindira’s application 

for disability benefits be denied. In March 2008, the OP&F Board of Trustees 
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5 

found that Tindira was not disabled and denied his application for disability 

benefits. 

{¶ 16} Tindira appealed from OP&F’s initial determination and submitted 

additional reports from his treating physicians, Dr. Fetterman and Francis L. 

McCafferty, M.D. Dr. Fetterman diagnosed Tindira as suffering from a major 

depressive disorder, single episode, which had been severe, with psychotic 

features, somatization disorder, anxiety disorder, and a mixed personality 

disorder, and he noted that Tindira was taking multiple medications for these 

conditions. Dr. Fetterman did not feel that Tindira could do his work as a police 

officer. Dr. Fetterman also reported that an MRI revealed that Tindira had a 

“broad based disk bulge with a small central disk protrusion at the L5 and S1 

level,” which “definitely would [a]ffect his duties to perform as a policeman.” 

{¶ 17} Dr. McCafferty diagnosed Tindira with “Major Depressive 

Disorder, Severe, with Psychotic Features, with elements of a Delusional Disorder 

and Post Traumatic Stress Disorder, Personality Disorder N.O.S.” Dr. 

McCafferty noted that Tindira had shown only a very slight improvement after 

psychotherapy and medication management. Dr. McCafferty concluded that 

based on Tindira’s psychiatric problems alone, he had a whole-person impairment 

of 65 percent. He also determined that Tindira was “severely disturbed 

psychologically,” that he “continues to be delusional,” and that he “will never be 

able to function as a police officer.” 

{¶ 18} OP&F forwarded the new evidence submitted by Tindira in support 

of his appeal to the physicians and vocational expert who had previously 

conducted independent evaluations of Tindira and asked them to report whether 

their original opinions on his disability-benefits claim had changed based on the 

new evidence. Dr. Smarty increased his assessment of Tindira’s percentage of 

whole-person impairment from 5 percent to 20 percent and changed his opinion 

regarding the impact of Tindira’s psychiatric symptoms on his ability to function 
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as a police officer to conclude that his “psychiatric symptoms at the present time 

will interfere with his ability to function effective[ly] as a police officer.” 

Nevertheless, Dr. Smarty retained his opinion that Tindira is not permanently 

disabled from his work as a police officer: 

{¶ 19} “There is no evidence that suggests that his psychiatric conditions 

were caused by any stressor arising from his work as a police officer. Rather, his 

psychiatric conditions are the result of his break-up with his girlfriend and the 

aftermath, especially following the consequences he incurred by threatening her. 

Generally, it would be expected that his symptoms will improve with treatment 

(especially psychotherapy) and the passage of time. As such, he should be 

reevaluated in 1 year to determine whether he remains impaired by his psychiatric 

conditions.” 

{¶ 20} Dr. Soderstrum found no new objective evidence to support 

Tindira’s claim of a new physical injury to his back and did not change his 

previous opinion that Tindira was not physically disabled. 

{¶ 21} In an addendum to his previous vocational evaluation, Kijewski 

changed his previous conclusion that Tindira was temporarily incapacitated and 

determined that Tindira was permanently incapacitated: 

{¶ 22} “In the original report, the conclusion was that Mr. Tindira was 

incapacitated from performing the duties of police officer, but his condition was 

temporary. In light of Dr. McCafferty’s report, it appears that after four months 

of intensive psychotherapy, Mr. Tindira remains severely disturbed and 

delusional. He was clearly not responding to treatment in any significant way. 

While there is always hope for improvement, it appears highly doubtful that he, in 

light of the information presented by Dr. McCafferty, will ever improve to the 

point where he can resume the duties of police officer. It is now my finding that 

Mr. Tindira is permanently incapacitated from performing the duties of police 

officer due to his emotional difficulties.” 
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{¶ 23} Kijewski further concluded that it was highly doubtful that 

Tindira’s emotional state would improve to the point where other occupations 

would be feasible. Another vocational consultant, Bruce S. Growick, Ph.D., 

provided OP&F with his assessment that the damage to Tindira’s earning capacity 

was minimal. 

{¶ 24} The OP&F medical advisor, Manuel Tzagournis, M.D., reviewed 

the pertinent evidence and diagnosed Tindira as suffering from major depression 

resulting in a whole-person impairment of 5 percent and lumbar sacral strain with 

MRI evidence of disk disease resulting in a whole-person impairment of 2 

percent. Dr. Tzagournis concluded that Tindira is temporarily incapacitated for 

the performance of his duties as a police officer and that the disability was not 

caused or induced by his employment as an officer. More specifically, he 

concluded that Tindira “has a depression that is likely to be reversible, however it 

has incapacitated him on a temporary basis to the extent that he has been on 

several psychiatric medications, was hospitalized once in the past, and has 

provided new medical evidence of the difficulties he has had. * * * The severity 

of the depression appears to be severe enough that he is not capable of working as 

a police officer. It is likely that this is a temporary disability and he will recover 

gradually over the next year.” 

{¶ 25} In September 2008, the OP&F Board of Trustees determined that 

Tindira was disabled, but it denied his claim for disability benefits. The board 

specified that it had based its denial on the medical recommendation of Dr. 

Tzagournis, the vocational recommendation of Dr. Growick, and certain other 

evidence that had been submitted in support of Tindira’s appeal. 

{¶ 26} In November 2009, Tindira filed a complaint in the Court of 

Appeals for Franklin County for a writ of mandamus to compel appellees, OP&F 

and its board of trustees, to vacate the board’s denial of his claim for disability 

benefits and to award him disability benefits and attorney fees. Appellees 
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submitted an answer, and the parties submitted the administrative record and 

briefs. In October 2010, the court of appeals denied the writ. 

{¶ 27} This cause is now before the court upon Tindira’s appeal as of 

right. 

Legal Analysis 

Mandamus

{¶ 28} “[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. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-

Ohio-2219, 767 N.E.2d 719, ¶ 14. 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. See, generally, State ex rel. Worrell v. Ohio Police 

& Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380, 

¶ 10. “ ‘An abuse of discretion occurs when a decision is unreasonable, arbitrary, 

or unconscionable.’ ” Id., quoting State ex rel. Stiles v. School Emps. Retirement 

Sys., 102 Ohio St.3d 156, 2004-Ohio-2140, 807 N.E.2d 353, ¶ 13. 

Stating the Basis for Its Denial of Disability Benefits 

{¶ 29} Tindira first claims that the board abused its discretion by failing to 

state the basis for its denial of disability benefits. 

{¶ 30} “In mandamus proceedings, the creation of the legal duty that a 

relator seeks to enforce is the distinct function of the legislative branch of 

government, and courts are not authorized to create the legal duty enforceable in 

mandamus.” State ex rel. Lecklider v. School Emps. Retirement Sys., 104 Ohio 

St.3d 271, 2004-Ohio-6586, 819 N.E.2d 289, ¶ 23. Public-employee pension 

systems and their boards have no duty to state the basis for their decision denying 

disability benefits when no statute or duly adopted administrative rule requires it. 

See, generally, Pipoly, 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, 

¶ 18; Lecklider at ¶ 23. 
January Term, 2011 

9 

{¶ 31} Because Tindira cites no statute or rule imposing any duty on the 

part of the OP&F Board of Trustees to state the basis for its decision denying his 

application for disability benefits, this court cannot create that duty. 

{¶ 32} Moreover, this is not a case in which the board relied on general 

statements made by doctors that Tindira could engage in “some” type of gainful 

employment. Consequently, his citation to Kinsey v. Police & Firemen’s 

Disability & Pension Fund Bd. of Trustees (1990), 49 Ohio St.3d 224, 551 N.E.2d 

989,1

 does not support his request. 

{¶ 33} Therefore, the OP&F Board did not abuse its discretion insofar as 

its decision could be construed as not specifying the basis for it. 

Temporary Disability Benefits 

{¶ 34} Tindira next argues that the court of appeals erred in holding that 

he was not entitled to temporary disability benefits under R.C. 742.38(D)(4). 

{¶ 35} R.C. 742.38(D) provides: 

{¶ 36} “(1) As used in division (D)(1) of this section: 

{¶ 37} “(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. 

{¶ 38} “(b) ‘Permanently disabled’ means a condition of disability from 

which there is no present indication of recovery. 

{¶ 39} “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 

 

1. In Kinsey, at the syllabus, we held, “In determining whether a person is totally disabled for 

purposes of the Police and Firemen’s Disability and Pension Fund of Ohio, the board of trustees of 

the fund cannot rely on general statements made by doctors either in a written report or in 

preprinted forms supplied by the board, which state that a member can engage in ‘some’ type of 

gainful employment. The board must state that it considered the member’s training, experience, 

and accomplishments in determining whether he can engage in other gainful employment.” 
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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. 

{¶ 40} “(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 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. 

{¶ 41} “(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. 

{¶ 42} “(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.” 
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{¶ 43} Under R.C. 742.38(C), “[f]or 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 OP&F Board of Trustees promulgated Ohio Adm.Code 

742-03-05 pursuant to R.C. 742.38(C), and in section (A)(8) of that rule defined 

“partial disability” to mean “a condition of disability with respect to which the 

board finds the applicant is prevented from performing the member’s official 

police or fire duties and member’s earnings capacity is impaired.” 

{¶ 44} For the following reasons, R.C. 742.38(D)(4) is not limited to 

authorizing disability benefits for permanent disability. 

{¶ 45} First, the plain language of R.C. 742.38(D)(4) is not restricted to 

benefits for permanent disability. In analyzing the pertinent statutory provisions, 

“we determine the legislative intent by reading words and phrases in context and 

construing them in accordance with rules of grammar and common usage.” State 

ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St.3d 148, 2009-

Ohio-2522, 909 N.E.2d 610, ¶ 18. To be entitled to a disability benefit under this 

provision, the applicant must prove that he or she (1) is a member of the fund who 

has completed five or more years of active service in a police or fire department, 

(2) 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, (3) is prevented by the disability from performing his or her 

duties, and (4) has an impaired earning capacity because of the disability. 

Nothing in the statutory language suggests that the disability entitling the member 

to benefits must be permanently and totally disabling. 

{¶ 46} Second, when the General Assembly has intended that a member of 

OP&F be restricted to benefits based on permanent and total disability, it has 

specifically so provided. For example, in R.C. 742.38(D)(1), benefits are 

authorized for a member of the fund who is “permanently and totally disabled as 
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the result of the performance of the member’s official duties as a member of a 

police or fire department.” Because the General Assembly did not employ that 

same limiting language in R.C. 742.38(D)(4), we must presume that it did not 

intend to similarly restrict disability benefits authorized by that section. 

{¶ 47} Third, the statute authorizes partial-disability benefits in certain 

circumstances. See, e.g., R.C. 742.38(D)(2); see also Ohio Adm.Code 742-3-

05(A)(8). 

{¶ 48} Fourth, this construction of R.C. 742.38(D)(4) comports with the 

general rules of statutory construction by furthering the purpose behind the 

disability provisions. See, e.g., State ex rel. Moss v. Ohio State Hwy. Patrol 

Retirement Sys., 97 Ohio St.3d 198, 2002-Ohio-5806, 777 N.E.2d 259, ¶ 21. The 

specified legislative purpose of OP&F is to provide “disability benefits and 

pensions to members of the fund and their surviving spouses, children, and 

dependent parents.” R.C. 742.02. Insofar as the language in R.C. 742.38(D)(4) 

might be considered ambiguous regarding whether it authorizes benefits for 

temporary disabilities, “[a]mbiguous statutory provisions [in pension statutes] 

must be construed liberally in favor of the interests of the public employees and 

their dependents that the pension statutes were designed to protect.” State ex rel. 

Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of Trustees

(1995), 72 Ohio St.3d 62, 65, 647 N.E.2d 486. As noted by Tindira, once a 

member receives disability benefits, including partial-disability benefits, he 

remains subject to medical treatment and annual medical examinations to 

determine whether he is entitled to continue to receive those benefits. See R.C. 

742.40 and Ohio Adm.Code 742-3-10. 

{¶ 49} Finally, appellees’ reliance on purported definitions from the fifth 

edition of the American Medical Association’s “Guides to the Evaluation of 

Permanent Impairment” does not require a different result. Under Ohio 

Adm.Code 742-3-05(B)(2), “[i]n evaluating a member’s disability, as provided by 
January Term, 2011 

13 

law, medical impairment and eligibility for disability retirement benefits, the DEP 

[Disability Evaluation Panel] and the [OP&F] board will use the official duties 

provided by the employer, but in the event such information is not provided by the 

employer or does not clearly define the applicable job duties, the board and the 

DEP shall use the criteria contained in the ‘guides,’ the occupational 

characteristics adopted by the board and the criteria set forth in division (D) of 

section 742.38 of the Revised Code.” (Emphasis added.) “Guides” means “the 

American medical association’s ‘Guides to the Evaluation of Permanent 

Impairment, fifth edition,’ and such other subsequent editions adopted by the 

board from time to time, whether in whole or in part.” Ohio Adm.Code 742:3-

05(A)(9). 

{¶ 50} Appellees rely on a purported reference2

 from the foregoing guide 

to support their argument that pension-fund members with temporary disabilities 

do not qualify for benefits under R.C. 742.38(D)(4). But the guide could be used 

by the board only if information about Tindira’s job duties as a Lakewood police 

officer either was not provided by Lakewood or did not clearly define his duties. 

Here, the information about the job duties was provided to the board by 

Lakewood, and the duties were clearly defined. In fact, neither the OP&F nor its 

board of trustees ever suggested otherwise during the administrative proceedings, 

in the court of appeals’ case, or in this appeal. 

{¶ 51} More important, the board can consider only applicable standards 

adopted by it to determine the requisite disability under R.C. 742.38(D)(4), and as 

previously discussed, the plain language of the statutory provision does not 

restrict benefits to members with permanent disabilities. 

 

2. Although appellees did not submit a copy of the portion of the book that they cite and it is not 

contained in the court of appeals’ record, it appears that they are correct that according to the 

American Medical Association’s “Guides to the Evaluation of Permanent Impairment” (5th 

Ed.2001) 2, “[t]he term impairment in the Guides refers to permanent impairment, which is the 

focus of the Guides.” (Emphasis sic.) 
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{¶ 52} Therefore, the court of appeals erred in concluding that R.C. 

742.38(D)(4) does not authorize benefits for temporary disabilities. 

{¶ 53} Moreover, in asserting that the OP&F Board of Trustees abused its 

discretion in denying disability benefits to Tindira, Tindira established that (1) he 

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

a police department (his time at the Lakewood and Cleveland police departments), 

(2) he incurred a disability not caused or induced by the actual performance of his 

official duties as a police officer with the Lakewood Police Department or his 

own negligence (his psychiatric condition caused by his breakup with his 

girlfriend), (3) he is prevented by the disability from performing those duties (as 

established by the evidence cited in the board’s decision, including Dr. 

Tzagournis’s conclusion that he is temporarily incapacitated from performing his 

job as a police officer), and (4) he has an impaired earning capacity because of the 

disability (as shown by (a) Kijewski’s conclusion, after performing a vocational 

evaluation, that Tindira was incapacitated from performing his duties as police 

officer and that it was highly doubtful that his emotional state would improve to 

the point that he could apply any transferable skills in a different occupation and 

(b) Dr. Growick’s conclusion, after performing a vocational evaluation, that 

Tindira had at least a minimal impairment of his earning capacity due to his 

disability). Thus, under R.C. 742.38(D)(4), Tindira established his entitlement to 

disability benefits. 

{¶ 54} Therefore, OP&F and its board abused their discretion in denying 

Tindira’s application for disability benefits. 

Oral Argument 

{¶ 55} Tindira requests oral argument. We deny the request because the 

parties’ briefs are sufficient to resolve this appeal. State ex rel. Mahajan v. State 

Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 65. 

 
January Term, 2011 

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Conclusion 

{¶ 56} Based on the foregoing, the court of appeals erred in denying the 

requested extraordinary relief in mandamus. We reverse the judgment of the 

court of appeals and grant the writ of mandamus to compel OP&F and its board of 

trustees to grant Tindira’s claim for disability benefits. The board of trustees shall 

determine the amount of benefits in accordance with R.C. 742.39(C). 

Judgment reversed 

and writ granted. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, 

and MCGEE BROWN, JJ., concur. 

O’DONNELL, J., dissents. 

__________________ 

 Paul M. Friedman and Michael P. O’Malley, for appellant. 

 Michael DeWine, Attorney General, and Theodore L. Klecker, Assistant 

Attorney General, for appellees. 

______________________