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State ex rel. Gerke v. Board of Ohio Highway Patrol Retirement System

Court of Appeals of Ohio, Tenth District

August 22, 2013

State of Ohio ex rel. Paul E. Gerke, Relator,
v.
Board of Ohio Highway Patrol Retirement System, Respondent.

IN MANDAMUS

Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for relator.

Michael DeWine, Attorney General, and Brandon C. Duck, for respondent.

DECISION

BROWN, J.

(¶ 1} Relator, Paul E. Gerke, has filed this original action requesting that this court issue a writ of mandamus ordering respondent, the State Highway Patrol Retirement Board ("board"), to vacate its decision denying his application for a disability retirement, pursuant to R.C. 5505.18, and to enter a decision granting the application.

(¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended that this court deny relator's request for a writ of mandamus. No objections have been filed to that decision.

(¶ 3} As there have been no objections filed to the magistrate's decision, and it contains no error of law or other defect on its face, based on an independent review of the file, this court adopts the magistrate's decision. Relator's request for a writ of mandamus is denied.

Writ denied.

SADLER and CONNOR, JJ., concur.

APPENDIX

Rendered on May 24, 2013

IN MANDAMUS

MAGISTRATE'S DECISION

KENNETH W. MACKE, MAGISTRATE

(¶ 4} In this original action, relator, Paul E. Gerke, requests a writ of mandamus ordering respondent, the State Highway Patrol Retirement Board ("board"), to vacate its decision denying his application for a disability retirement pursuant to R.C. 5505.18, and to enter a decision granting the application.

Findings of Fact:

(¶ 5} 1. Relator has been employed as a trooper with the Ohio State Highway Patrol.

(¶ 6} 2. On December 2, 2011, relator filed an application for disability benefits with the Ohio State Highway Patrol Retirement System ("HPRS") on a form provided by HPRS.

(¶ 7} 3. The application form asks the applicant to "provide a description of any condition that limits your ability to work as a Trooper, including a description of how the condition occurred."

In the space provided, relator wrote in his own hand:
Brain [aneurism] - blood vessels ruptured in my brain[.] Ruptured intestine/stomach - high fever with rupture[.] Torn [bicep] and shoulder - injury crash[.] Asthma - unknown/have trouble breathing[.]

(¶ 8} 4. Earlier, on November 2, 2011, attending physician Anthony R. Lanier, D.O., completed an HPRS form captioned "Attending Physician Medical Evaluation." The form asks the physician to provide a "Diagnosis." In the space provided, Dr. Lanier listed:

*[L]eft frontal lesion with cavernous malformation, cerebral hemorrhage
*Cephalgia
*Asthma mild COPD
*PUD
*Hypertension
*[Right] [illegible] labral tear
*[Bilateral] biceps tendonitis

(¶ 9} The last section of the form asks the physician to mark the appropriate box describing the applicant's medical situation:

On the basis of my medical knowledge and the examination of the applicant, it is my opinion that the applicant is:
x TOTALLY INCAPACITATED to perform specific job duties and responsibilities in the employ of the patrol and that such incapacitation is permanent.
□ CURRENTLY UNABLE to perform specific job duties and responsibilities in the employ of the patrol, at this time but could return to work at sometime in the foreseeable future. Could return to work on.
□ NOT TOTALLY INCAPACITATED to perform specific job duties and responsibilities in the employ of the patrol and that such incapacitation is not permanent.
□ IS CURRENTLY UNDER TREATMENT AND OUTCOME IS NOT YET DETERMINED.

(¶ 10} In response, Dr. Lanier marked the first box indicating that relator is totally incapacitated and that the incapacity is permanent.

(¶ 11} 5. On January 6, 2012, at HPRS' request, relator was examined by Michael A. Riethmiller, M.D. In his nine-page narrative report dated January 11, 2012, Dr. Riethmiller states:

In summary, a review of the available medical records and this independent medical evaluation reveals that Patrolman Gerke has a number of abnormal medical conditions. These would include a left parietal cavernous malformation, migraine headaches, a right shoulder rotator cuff tear, anxiety and depression, hypertension, gastroesophageal reflux disease, diverticulitis, and asthma.
Based upon a review of the available medical records and this independent medical evaluation, it is my medical opinion that Patrolman Gerke is totally and permanently incapacitated for duty with the Ohio State Highway Patrol. This opinion is based primarily upon his persistent headaches which are associated with migraine and also probably with the left parietal cavernous malformation. This latter abnormality did bleed on one occasion and the resultant irritation has led to a neurologic deficit. There is a further chance, although minimal, of further bleeding and it can be difficult to determine whether or not his persistent headaches are secondary to migraine or to a further complication from the left parietal cavernous malformation. A secondary medical condition resulting in his total and permanent incapacity for duty would be the right shoulder rotator cuff tear which has resulted in limited active motion and strength.
Although he initially declined surgery since he didn't wish to be absent from work, he certainly could undergo a corrective surgical procedure but then would have to participate in extensive post-operative rehabilitation in order to determine whether or not he would regain full strength and motion of the right shoulder girdle. His other medical conditions appear to be well-controlled and wouldn't prevent him from performing his regular work duties.

(¶ 12} 6. On January 11, 2012, Dr. Riethmiller completed an HPRS form captioned "Independent Medical Evaluation." On the form, Dr. Riethmiller indicated by his mark: "This patient is totally and permanently incapacitated for duty with the Ohio State Highway Patrol."

(¶ 13} 7. On January 23, 2012, the board's consulting physician, Earl N. Metz, M.D., wrote an internal ...


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