         [Cite as Rusin v. Buehrer, 2017-Ohio-8411.]
                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




MARK RUSIN,                                       :    APPEAL NO. C-160772
                                                       TRIAL NO. A-1403977
        Plaintiff-Appellant,                      :

  vs.                                             :       O P I N I O N.

STEPHEN BUEHRER,                                  :
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION,                         :

  and                                             :

CITY OF CINCINNATI,                               :

        Defendant-Appellees.                      :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 3, 2017

Fox & Fox Co., L.P.A., Bernard C. Fox and M. Christopher Kneflin, for Plaintiff-
Appellant,

Dianna K. Bond, Assistant Ohio Attorney General, for Defendant-Appellee Stephen
Buehrer,

Paula Boggs Muething, City Solicitor, and William C. Hicks, Senior Assistant City
Solicitor, for Defendant-Appellee City of Cincinnati.
                         OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

      {¶1}      Plaintiff-appellant Mark Rusin appeals the trial court’s judgment

denying him the right to participate in the Ohio workers’ compensation fund.

Because we conclude that there was no error in the trial court’s decision, we affirm

its judgment.

                                    Background

      {¶2}      Rusin was a Cincinnati firefighter for over 25 years. He responded to

hundreds of fires, and was exposed to smoke containing toxic materials such as

heavy metals and organophosphates. In 2005, he began to experience joint pain,

weakness, spasms, and difficulty coordinating his movements. He was eventually

diagnosed with amyotrophic lateral sclerosis (“ALS”). His initial prognosis gave him

two to five years to live, the typical life expectancy for someone with ALS. However,

about ten percent of ALS patients survive longer than five years, and Rusin, who is

still alive, is in this group. The Ohio Police and Fire Board (“OP&F”) found that

Rusin’s ALS was duty-related and granted him a disability retirement.

      {¶3}      In 2009, Rusin consulted with Dr. Joseph Hickey, a board-certified

internal medicine physician in Hilton Head, South Carolina. Hickey has no training

in neurology. Nonetheless, since 2003, Dr. Hickey has taken an interest in the health

effects of heavy-metal exposures, and has treated many patients who have

neurological disorders. Hickey tested Rusin’s heavy-metal levels and found them to

be higher than normal.         He recommended that Rusin undergo “chelation”

treatments, where a negatively-charged protein is injected into the patient that

attracts the positively-charged heavy metals out of the patient’s bones and organs

and into the patient’s excretory systems. Rusin underwent a total of 50 chelation

treatments, which he and Hickey believe have helped slow the progress of his ALS.



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                       OHIO FIRST DISTRICT COURT OF APPEALS

      {¶4}    Rusin filed a workers’ compensation claim in 2012 that was ultimately

denied. He appealed to the Hamilton County Court of Common Pleas, which held a

bench trial. The trial court heard testimony from Rusin, Hickey, and the city’s expert

witness, Dr. Kenneth A. Mankowski.

      {¶5}    Hickey testified that ALS is a motor-neuron disease, and that the

motor neurons are the cells in the brain and spinal cord that stimulate muscles.

Heavy metals and organophosphates are toxic substances that destroy motor

neurons. Being around smoke exposes people to these substances, because they are

present in various materials and are vaporized when those materials are burned.

Hickey testified that firefighters are therefore more susceptible to neurological

diseases than those in other occupations. He further testified that exposure to heavy

metals will cause the metals to build up in the body, and that over time this exposure

can cause motor-neuron diseases like ALS. Hickey believes that chelation helps to

remove the buildup of heavy metals, but acknowledged that chelation is not within

the standard of care for ALS, and that he uses the treatment “off-label.” Hickey

formed his opinions through his own research reading medical journals, and he

acknowledged that his opinions are not shared by the vast majority of the medical

establishment.

      {¶6}    Hickey has not conducted or published any studies on heavy metals

and ALS. He acknowledged that the “vast majority” of those diagnosed with ALS

“have no study that can relate heavy metal levels within them and their disease,” and

that there is no study showing what level of any toxic substance would cause ALS.

He also acknowledged that an “absolute connection with exposure and then an

incident of” ALS has not been established. Ultimately, he testified to a reasonable




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                         OHIO FIRST DISTRICT COURT OF APPEALS

degree of medical certainty that Rusin’s ALS was caused by his exposure to heavy

metals and other toxic substances during his work as a firefighter.

      {¶7}    Mankowski testified that he was a board-certified neurologist who

completed a fellowship diagnosing and treating ALS patients, and that he sees

several ALS patients a year. Mankowski characterized ALS as a rare disease. He had

not personally examined Rusin, but conducted a review of his file at the city’s

request. He testified that the theory Hickey promoted regarding heavy metals and

ALS is not in the mainstream: “[T]here’s no data or any knowledge that gives you

great understanding of what, if any, role heavy metal would play in ALS.” He agreed

with Dr. Hickey that 90-95 percent of ALS cases have no known cause, and that in

the other five to ten percent, “we think there’s a genetic connection or

link. * * * Anything beyond that * * * it’s purely theoretical.”      He testified that

chelation is not a standard treatment for ALS because there is no conclusive body of

evidence that establishes a link between metal toxicity and motor-neuron damage,

and that he had never recommended the treatment for ALS patients. Mankowski

found that “there’s no evidence to conclude that heavy metals had anything to do

with Mr. Rusin’s ALS.”

      {¶8}    While acknowledging that firefighters were at a greater risk for a

variety of health problems, Mankowski does not “automatically test [firefighters] for

heavy metals because of the risk of exposure.” He testified that there is no way to

know whether the chelation treatments were the sole cause of any reduction in

Rusin’s levels of heavy metals, and noted that chelation does nothing to treat

exposure to organophosphates. He found no data to suggest that chelation altered

the course of Rusin’s life, and that if there were data showing that chelation gives

ALS patients an increased chance of survival, it would be a standard treatment.




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                        OHIO FIRST DISTRICT COURT OF APPEALS

      {¶9}    He testified that “it is absolutely not thought of in mainstream

neurology amongst the experts in [ALS] that heavy metal poisoning or heavy metal

toxicity is commonly a contributing factor to ALS.” Mankowski was aware of very

rare cases where it was theorized that “extremely high” levels of heavy-metal toxicity

over a prolonged period of time can cause or contribute to ALS, and that this was

mostly in individuals who are genetically susceptible to ALS. However, he noted that

there was no evidence that Rusin is genetically susceptible to ALS, and thus, it did

not appear that Rusin fit into that very small percentage of individuals. Mankowski

also testified that from reviewing Rusin’s medical records he has concluded that

Rusin’s metal levels were not at the level that Hickey typically sees when Hickey has

concluded that motor-neuron damage resulted from exposure to heavy metals.

     {¶10}    After considering the testimony and exhibits, the trial court issued a

decision concluding that, “[a]lthough firefighters are disproportionately exposed to

heavy metals as Dr. Mankowski concedes, there is no medical consensus that

environmental factors are a risk for developing ALS. All studies conclude that more

research is needed. The analytical gap unfortunately is just too great between the

epidemiological studies and data and Dr. Hickey’s causation opinions.” Two months

later, the trial court issued a final judgment entry. Rusin timely appealed.

                              Assignments of Error

     {¶11}    Rusin asserts three assignments of error. The first is that the trial

court’s holding regarding causation was unsupported by the evidence. The second is

that the trial court failed to utilize the presumption under R.C. 4123.68(W) and to

comply with the requirement of R.C. 4123.95. The third is that the trial court erred

in excluding the OP&F decision and the testimony of other firefighters.




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                         OHIO FIRST DISTRICT COURT OF APPEALS

                                Standard of Review

     {¶12}     In a workers’ compensation appeal, “[t]his court reviews the decision

of the trial court as to issues of fact under a manifest-weight-of-the-evidence

standard, and we will not reverse the trial court’s judgment if it is supported by some

competent, credible evidence.” Bell v. Bur. of Workers’ Comp., 1st Dist. Hamilton

No. C-110166, 2012-Ohio-1364, ¶ 22. In a manifest-weight review, “this court must

review the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created a manifest miscarriage of

justice.” Moore v. Admr., 1st Dist. Hamilton No. C-140413, 2015-Ohio-3969, ¶ 9.

“As a reviewing court, we must indulge every reasonable presumption in favor of the

trial court’s judgment.” Bell at ¶ 31.

                             Workers’ Compensation

     {¶13}     R.C. 4123.68 provides, in relevant part, that “[e]very employee who is

disabled because of the contraction of an occupational disease * * * is entitled to the

compensation provided” by the workers’ compensation statutes. The statute then

enumerates several “scheduled” diseases that are presumed compensable.            If a

disease is not “scheduled,” then it is only covered if it “meets the definition of an

occupational disease.” ALS is not one of the scheduled diseases enumerated in R.C.

4123.68.

     {¶14}     R.C. 4123.01(F) provides a definition of “occupational disease” that the

Ohio Supreme Court has restated as a three-part test:

       (1) The disease is contracted in the course of employment; (2) the

       disease is peculiar to the claimant’s employment by its causes and the

       characteristics of its manifestation or the conditions of the



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                        OHIO FIRST DISTRICT COURT OF APPEALS

       employment result in a hazard which distinguishes the employment in

       character from employment generally; and (3) the employment creates

       a risk of contracting the disease in a greater degree and in a different

       manner than in the public generally.

State ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St.2d 247, 327 N.E.2d 756 (1975),

syllabus.

      {¶15}   Furthermore, to present a prima facie case involving an injury caused

by exposure to a toxic substance, “a claimant must establish (1) that the toxin is

capable of causing the medical condition or ailment (general causation), and (2) that

the toxic substance in fact caused the claimant’s medical condition (specific

causation).” Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶

15.

The Trial Court’s Judgment Was Not Against the Manifest Weight of
                          the Evidence

      {¶16}   Rusin had to prove by a preponderance of the evidence that ALS can

be caused by exposure to heavy metals and/or organophosphates, that his ALS was

caused by such exposure, and that the exposure occurred during the course of his

employment as a firefighter. The trial court found that he failed to meet his burden

of proving causation, though it did not explicitly distinguish its findings between

general and specific causation. To the extent that the trial court held that general

causation was not proven, we find that this holding was in error. Both experts agreed

that there are cases where exposure to heavy metals has likely caused ALS, so such

toxins are “capable of causing the medical condition or ailment.” However, Rusin

must establish general and specific causation, and the trial court’s holding that Rusin

did not prove specific causation was not against the manifest weight of the evidence.




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                         OHIO FIRST DISTRICT COURT OF APPEALS

     {¶17}     Dr. Mankowski testified that 90-95 percent of ALS cases have no

known cause; that Rusin’s case did not fit into the pattern of those extremely rare

cases where heavy-metal exposure was theorized as causing or contributing to ALS;

and that there was no evidence or data “to conclude that heavy metals had anything

to do with Mr. Rusin’s ALS.” The trial court did not lose its way in giving this

testimony more weight than it gave to the other evidence. While further research

may ultimately vindicate Hickey’s opinions, Mankowski’s testimony regarding

specific causation constitutes competent, credible evidence supporting the trial

court’s determination.

     {¶18}     Rusin contends that the trial court erred in three ways. His first

contention is that the trial court erred in stating that Rusin’s physicians did not

conduct a differential diagnosis. However, the record does not contain any evidence

that Rusin’s doctors performed a differential diagnosis, and it is not our place to

assume a fact not in evidence.

     {¶19}     Rusin’s second contention—that the trial court erred in failing to credit

the medical journal articles introduced as exhibits because they established “a causal

link between exposure to heavy metals/organophosphates and the development of

ALS in individuals”—is primarily relevant to the issue of general causation. The

subjects of those articles are factually distinguishable from Rusin’s circumstances,

and therefore are of limited relevance to specific causation. One of the studies

explicitly stated that its results were “based on a small number of cases and required

replication in other populations.” Regardless, to the extent that the articles may

contain evidence as to specific causation, the trial court chose to give Mankowski’s

testimony more weight than these journal articles, and it cannot be said that the trial

court lost its way in doing so.




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                        OHIO FIRST DISTRICT COURT OF APPEALS

     {¶20}    Rusin’s final contention is that the trial court’s characterization of a

case he cited, Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-

4208, as “essentially turn[ing] on the employer’s failure to object or otherwise

challenge the expert’s testimony,” was incorrect. However, the Walker court stated,

“[g]iving due consideration to the parties’ arguments and following a careful review

of the record, we cannot say, based on the record before us—including the aspects of

[plaintiff’s expert]’s testimony to which Ford raised no objection—that the trial court

abdicated its role as gatekeeper or otherwise abused its discretion in admitting

[plaintiff’s expert]’s testimony.” (Emphasis added.) Id. at ¶ 42. The Walker court

went on to say,

       With respect to the other issues in the case—specifically, the issues of

       general and specific causation—this was a classic case of a “battle of

       the experts.” [Plaintiff’s expert] offered one view on the issue of

       causation, and [defendant]’s experts offered the opposing view. The

       credibility of the witnesses’ testimony was squarely before the jury,

       and the jury was free to accept or reject any of this testimony.

Id. at ¶ 53. Rusin does not articulate how the trial court should have applied Walker

differently, and Walker’s holding supports an affirmance in this case. In Walker,

competing expert testimony was admitted, and the finder of fact credited one expert

over the other. The finder of fact’s decision was supported by competent, credible

evidence, so the Eighth Appellate District did not reverse it. The same situation is

present here, and therefore Rusin’s first assignment of error must be overruled.

      The Trial Court Did Not Err In Not Applying R.C. 4123.68(W)

     {¶21}    Rusin argues that the trial court should have applied the presumption

contained in R.C. 4123.68(W), which provides, in relevant part, that “[a]ny



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                         OHIO FIRST DISTRICT COURT OF APPEALS

cardiovascular, pulmonary, or respiratory disease of a firefighter * * * caused or

induced by the cumulative effect of * * * the inhalation of * * * toxic substances in the

performance of the firefighter’s * * * duty constitutes a presumption * * * that such

occurred in the course of and arising out of the firefighter’s * * * employment.”

     {¶22}     Rusin argues that ALS is a “cardiovascular, pulmonary, or respiratory

disease” because it usually causes death by weakening a person’s muscles to the point

that he or she can no longer breathe. However, both experts testified that ALS is a

neurological disease. Sustaining this assignment of error would therefore require us

to rewrite the statute, which is beyond our authority. Doe v. Marlington Local

School Dist. Bd. of Ed., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29

(“It is our duty to apply the statute as the General Assembly has drafted it; it is not

our duty to rewrite it.”).

     {¶23}     Rusin contends that we may reach his proposed construction of the

statute by applying the directive of R.C. 4123.95 that the workers’ compensation

statutes “shall be liberally construed in favor of employees.” But “ ‘[t]here is no

authority under any rule of statutory construction,’ ” including liberal construction,

“ ‘to add to, enlarge, supply, expand, extend or improve the provisions of the statute

to meet a situation not provided for.’ ” (Emphasis added.) Vought Industries, Inc. v.

Tracy, 72 Ohio St.3d 261, 265, 648 N.E.2d 1364 (1995), quoting State ex rel. Foster

v. Evatt, 144 Ohio St. 65, 56 N.E.2d 265, (1944), paragraph eight of the syllabus;

Dennis v. Smith, 125 Ohio St. 120, 125, 180 N.E. 638 (1933) (“By ‘liberal

construction’ [it] is not meant that words and phrases shall be given an unnatural

meaning * * *.”). This assignment of error must also be overruled.




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                        OHIO FIRST DISTRICT COURT OF APPEALS

    The Trial Court Did Not Err When it Excluded Certain Evidence

     {¶24}    Finally, Rusin claims that the trial court erred when it excluded from

evidence OP&F’s decision that found Rusin’s ALS to be duty-related, and the

testimony of two firefighters who complained of unspecified physical problems after

being exposed to the Queen City Barrel fire, a large fire that Rusin also fought.

     {¶25}    The trial court’s evidentiary decisions are reviewed under an abuse-of-

discretion standard, Brown v. Mabe, 170 Ohio App.3d 13, 2007-Ohio-90, 865 N.E.2d

934, ¶ 7 (1st Dist.), and the trial court did not abuse its discretion here. Evidence

must be relevant to be admissible, and even relevant evidence can be excluded if its

probative value is outweighed by its potential to confuse the issues or mislead the

finder of fact. Evid.R. 401-403. The issue in this case was whether Rusin’s ALS was

caused by exposure to toxic substances during his work as a firefighter, and neither

piece of evidence was relevant to that issue.       The two firefighters’ unspecified

illnesses do not make the cause of Rusin’s ALS more or less probable. See Evid.R.

401. Nor does OP&F’s decision make causation more or less probable, particularly

when there is no evidence in the record demonstrating what legal standards OP&F

applied to reach its determination. See id.

     {¶26}    An abuse of discretion “suggests unreasonableness, arbitrariness, or

unconscionability. Without those elements, it is not the role of this court to

substitute its judgment for that of the trial court.” Conrad v. Valentine, 110 Ohio

St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. There was nothing unreasonable,

arbitrary, or unconscionable about the trial court’s decision to exclude this evidence,

and this assignment of error is therefore overruled.




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                       OHIO FIRST DISTRICT COURT OF APPEALS

                                    Conclusion

     {¶27}     Having overruled Rusin’s assignments of error, we affirm the trial

court’s judgment.

                                                              Judgment affirmed.

MYERS and MILLER, JJ., concur.

Please note:

       This court has recorded its own entry this date.




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