2016 Ohio 2808
Ohio Ct. App.2016Background
- Jeffrey A. Burroughs, a former Ohio state trooper, received off-duty disability retirement in 2011 after cervical spine surgery that multiple treating physicians said made him unable to safely perform trooper duties (risk of neck injury during physical altercations).
- In June 2014 Burroughs completed the Savage Race (an intense 5–7 mile obstacle course with mud, climbing, carrying, etc.); the board learned of his participation and ordered an independent medical exam.
- Dr. Nancy M. Vaughan (independent evaluator) examined Burroughs on August 1, 2014, noted no myelopathic findings, relied in part on his Savage Race participation, and opined he could perform highway patrol duties.
- The board’s medical advisor, Dr. David Tanner, initially concurred with Dr. Vaughan (Aug. 20, 2014); after submission of additional treating notes he later recommended a formal physical capacity evaluation (FCE).
- The Retirement Board voted to terminate Burroughs’s disability (Aug. 21, 2014, upheld Oct. 16, 2014) without ordering an FCE; Burroughs appealed administratively and then filed this original mandamus action.
- The magistrate concluded the board had some evidence to terminate benefits; the appellate panel sustained Burroughs’s objection and granted a limited writ directing that an FCE be completed to determine whether there is some evidence he can perform all trooper duties.
Issues
| Issue | Burroughs's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether the board had "some evidence" to terminate disability | Savage Race participation and Dr. Vaughan’s report do not show ability to perform all trooper duties (esp. subduing attackers); medical record still supports disability | Dr. Vaughan’s exam and race participation constitute some evidence; board’s concurrence (Dr. Tanner) satisfied OAC 5505-3-03(C) | Court: Race and Dr. Vaughan’s report show some evidence for some duties but not all; limited relief required (order FCE) |
| Whether the board abused discretion by relying on Dr. Vaughan | Vaughan’s opinion was flawed and contradicted treating doctors; she relied on race and used tentative language | Vaughan was independent evaluator; her findings and concurrence by board’s advisor are evidence-based | Court: Magistrate erred by not requiring an FCE given subsequent medical recommendations; limited mandamus granted to obtain FCE |
| Whether a physical capacity evaluation (FCE) was necessary before final termination | FCE is necessary — treating physicians and later advisor recommended it; race alone is insufficient | Board relied on independent exam and initial concurrence; OAC allows reliance on independent evaluation | Court: An FCE is required here to assess ability to perform all assigned physical duties; limited writ ordered |
| Proper remedy in mandamus review of retirement decision | Requests writ vacating termination and reinstating disability without further testing | Board seeks deference to its decision and independent evaluation | Court: Mandamus available; granted limited writ to compel FCE (not outright reinstatement) |
Key Cases Cited
- State ex rel. Pontillo v. Pub. Emp. Retirement Sys. Bd., 98 Ohio St.3d 500 (2003) (mandamus is appropriate to challenge adverse retirement determinations)
- State ex rel. Moss v. Ohio State Hwy. Patrol Retirement Sys., 97 Ohio St.3d 198 (2002) (same; review standards for disability retirement)
- State ex rel. Mallory v. Pub. Emp. Retirement Bd., 82 Ohio St.3d 235 (1998) (mandamus as remedy for retirement board actions)
- State ex rel. McMaster v. School Emp. Retirement Sys., 69 Ohio St.3d 130 (1994) (establishes mandamus remedy for retirement disputes)
- State ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139 (2009) (board decision must be supported by some evidence; courts may not substitute judgment)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard defined as unreasonable, arbitrary, or unconscionable)