[Cite as Brannon v. Buehrer, 2013-Ohio-700.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98711



                            HERBERT BRANNON, JR.
                                               PLAINTIFF-APPELLANT

                                                vs.


                STEVE BUEHRER, ADMINISTRATOR,
                            ET AL.
                                               DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-763382

        BEFORE: Kilbane, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: February 28, 2013
ATTORNEY FOR APPELLANT

Alan I. Goodman
55 Public Square
Suite 1300
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Bureau of Workers’ Compensation

Mike DeWine
Ohio Attorney General
Frank J. Mamana
Assistant Attorney General
State Office Building - 11th Floor
615 Superior Avenue, N.W.
Cleveland, Ohio 44113

For Greater Cleveland R.T.A.

Dawn M. Tarka
Associate Counsel G.C.R.T.A.
6th Floor, Root-McBride Building
1240 West 6th Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

          {¶1} Plaintiff-appellant, Herbert Brannon, Jr. (“Brannon”), appeals the trial

court’s decision granting summary judgment in favor of defendant-appellee, Greater

Cleveland Regional Transit Authority (“RTA”). For the reasons set forth below, we

affirm.

          {¶2} Brannon worked as a bus driver for RTA from 1993 to 1996 and from 2001

to 2009. Brannon then worked as a rapid transit operator for RTA until February 2010,

when he retired under his disability pension because of his chronic obstructive pulmonary

disease (“COPD”).        Brannon also worked as a bus and street car operator in

Pennsylvania from 1972-1979, in Texas from 1986-1993, and in Florida from 1996-2001.

 Brannon smoked cigarettes from 1968 to approximately 1989, before he quit. A pack of

cigarettes would last him three to four days.

          {¶3} Brannon was diagnosed with asthma in 1999, and in 2008 Brannon was

diagnosed with COPD. Brannon filed a claim for occupational disease with the Bureau

of Workers’ Compensation, stating that his exposure to fumes, dust, and dirty air while

driving buses for RTA and while in the RTA bus garages caused him to develop COPD.

Brannon’s claim was denied. Consequently, Brannon appealed the denial to a District

Hearing Officer. Following a hearing, the District Hearing Officer denied his claim,

finding that he “did not sustain an occupational disease in the course of and arising out of
employment.” The District Hearing Officer further found that Brannon “through counsel

has specifically requested that the medical condition under consideration for today’s

hearing is [COPD] by way of direct causation [to] work exposures.” Brannon then

appealed this decision to a Staff Hearing Officer, who also denied his claim. The Staff

Hearing Officer found Dr. Terrance Kilroy’s (“Dr. Kilroy”) statement that Brannon’s

work environment “exacerbated” his symptoms, “does not reach the necessary level of

medical certainty and probability and is not consistent with [Brannon’s] assertion that the

[COPD] was a direct result of [his] work activity and work environment, as opposed to a

pre-existing condition that was adversely affected.” Brannon then appealed this decision

to the Industrial Commission of Ohio, and in its findings, which were mailed to Brannon,

the Industrial Commission refused to hear his appeal.

       {¶4} Brannon filed an appeal to the common pleas court, which was dismissed

without prejudice in September 2010. Brannon then filed a new complaint in the matter

in September 2011. RTA filed a motion for summary judgment and argued that Brannon

had no medical expert who would testify that his work conditions directly caused his

COPD. RTA also argued that Brannon could not demonstrate substantial aggravation of

preexisting COPD because exposure to bus fumes and dust does not constitute an

occupational disease under Ohio law and there was no medical evidence to substantiate

that any alleged aggravation was “substantial.” In opposition, Brannon asserted the facts

of this case and the medical reports establish that his work conditions caused his COPD to

develop or resulted in a substantial aggravation of his preexisting asthma condition.
RTA supplemented its motion for summary judgment and argued to the extent that

Brannon sought to recover for “various conditions” other than COPD, his complaint must

be dismissed because his “asthma condition” was not adjudicated by the Industrial

Commission.    As a result, RTA claimed that the trial court lacked subject matter

jurisdiction over Brannon’s appeal for the asthma condition. In July 2011, the trial court

granted RTA’s motion for summary judgment. The trial court stated in pertinent part:

      A plaintiff may participate in the Workers[’] Compensation System if the
      plaintiff shows that in the course of and arising out of his employment he
      contracted an occupational disease or substantially aggravated or
      accelerated a preexisting condition. Additionally, a court only has subject
      matter jurisdiction over issues addressed in the administrative order from
      which the appeal is taken. See [Ward v. Kroger Co., 106 Ohio St.3d 35,
      2005-Ohio-3560, 830 N.E.2d 1115]. [Brannon’s] failure to exhaust
      administrative remedies for asthma and bronchitis precludes him from
      offering evidence to this court that his work experience caused or
      substantially aggravated any condition other than chronic obstructive
      pulmonary disease.

      In the case presently before the court [Brannon] alleges that his exposure to
      diesel fumes, dust, and dirt as well as high temperatures while employed as
      a bus driver for [RTA] caused him to develop chronic obstructive
      pulmonary disease (COPD). It is undisputed that [Brannon] has suffered
      from asthma and other respiratory conditions since 1999. [Brannon’s]
      diagnosis as referenced in multiple reports indicate that the [Brannon’s]
      work environment as a bus driver exacerbated his symptoms, substantially
      aggravated his underlying bronchiospastic disease, worsened his asthmatic
      condition, and most probably converted his underlying asthma to COPD.
      At no time does the expert opine that exposure to diesel fumes, dirt, dust,
      and changing environmental temperatures caused [Brannon] to develop
      COPD.       Likewise, [Brannon’s] expert failed to submit a report
      demonstrating the exposure to the fumes, dirt, and dust substantially
      aggravated [Brannon’s] COPD. * * * As such [RTA] is entitled to
      judgment as a matter of law.
       {¶5} It is from this order that Brannon appeals, raising the following single

assignment of error for review.

                               ASSIGNMENT OF ERROR

       The court erred in granting [RTA’s] motion for summary judgment as there
       were substantial questions of fact regarding the causation of [Brannon’s
       COPD] and/or aggravation of the same, thus precluding the lower court’s
       action.

       {¶6} We review an appeal from summary judgment under a de novo standard of

review.   Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to
       judgment as a matter of law, and (3) reasonable minds can come to but one
       conclusion and that conclusion is adverse to the nonmoving party, said party
       being entitled to have the evidence construed most strongly in his favor.
       Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,
       1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The
       party moving for summary judgment bears the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293,
       1996-Ohio-107, 662 N.E.2d 264, 273-274.

       {¶7} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.”   Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio
St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.        Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

       {¶8} Brannon argues that the record from his physician, Dr. Kilroy, creates a

question of fact as to whether his claim should be recognized for COPD. Specifically,

he relies on letters written by Dr. Kilroy.    In a letter dated September 25, 2008, Dr.

Kilroy writes:

       Mr. Brannon has been my patient since 2004 and carries the diagnosis of
       asthmatic bronchitic type COPD. Despite not smoking for at least the last
       4-5 years[,] he continues to exhibit cough, wheeze and shortness of breath
       on a daily basis. * * * His pulmonary function tests demonstrate
       significant obstruction with a chest x-ray consistent with COPD. His work
       environment as a bus driver continues to exacerbate his symptoms due to
       his daily exposure to fumes from natural gas and diesel along with
       variations in temperature and humidity. I believe his work exposures are
       directly worsening his disease process and he is unable to continue his
       current occupation.

       {¶9} In Dr. Kilroy’s letter dated October 12, 2008, he writes, “Mr. Herbert

Brannon has been my patient since 200[4]. His occupation as a bus driver and his

exposure to diesel and gas fumes substantially aggravated his underlying bronchospastic

disease and most probably converted his underlying asthma to COPD.” (Emphasis sic.)

In a letter dated January 15, 2009, Dr. Kilroy writes:

       Mr. Brannon has been my patient since 2004 when he came to see me
       because of a preexisting asthmatic condition. Mr. Brannon has reported to
       me that his condition has gotten worse since he began to drive a bus for
       [RTA]. * * * He indicated that he was diagnosed with asthma in 2003 by
       Dr. George Matthews. He indicated that he drives a bus with compressed
       natural gas fumes and that the buses are not always properly tuned and he
       has had breathing difficulty even with his medication and inhalers while
      driving his route. He is also exposed to a good deal of diesel fumes in the
      garage when he starts and finishes his route. * * * He reports that his
      condition has continued to get worse.

      It is my opinion, based on reasonable degree of medical certainty, his work
      environment as a bus driver exacerbates his symptoms due to his daily
      exposure to fumes from natural gas and diesels along with variations in
      temperature and humidity. It is further my belief, to a reasonable degree
      of medical certainty, that his work exposure directly worsened his asthmatic
      condition and bronchospastic disease to the point that he now has [COPD].

      {¶10} Brannon contends Dr. Kilroy’s reports satisfy the requirements of R.C.

4123.01(C)(4), which provides that:

      “Injury” includes any injury, whether caused by external accidental means
      or accidental in character and result, received in the course of, and arising
      out of, the injured employee’s employment. “Injury” does not include * *
      * [a] condition that pre-existed an injury unless that pre-existing condition
      is substantially aggravated by the injury. Such a substantial aggravation
      must be documented by objective diagnostic findings, objective clinical
      findings, or objective test results. Subjective complaints may be evidence
      of such a substantial aggravation. However, subjective complaints without
      objective diagnostic findings, objective clinical findings, or objective test
      results are insufficient to substantiate a substantial aggravation.

      {¶11} Brannon argues that his working conditions substantially aggravated his

preexisting asthma and converted his asthma into COPD.       However, the Ohio Supreme

Court has stated that: “[t]he claimant in an R.C. 4123.512 appeal may seek to participate

in the Workers’ Compensation Fund only for those conditions that were addressed in the

administrative order from which the appeal is taken.” Ward v. Kroger Co., 106 Ohio

St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155, syllabus. The Ward court reasoned that:

      Allowing consideration of the right to participate for additional conditions
      to originate at the judicial level is inconsistent with this statutory scheme
      because it usurps the commission’s authority as the initial adjudicator of
      claims and casts the common pleas court in the role of a claims processor.
       * * * A workers’ compensation claim is simply the recognition of the
       employee’s right to participate in the fund for a specific injury or medical
       condition, which is defined narrowly, and it is only for that condition, as set
       forth in the claim, that compensation and benefits provided under the act
       may be payable. * * * [E]ach injury or condition that is alleged to give the
       claimant a right to participate in the Workers’ Compensation Fund must be
       considered as a separate claim for purposes of R.C. 4123.511 and 4123.512,
       and each such claim must proceed through the administrative process in
       order to be subject to judicial review. Id. at ¶ 10-11.

       {¶12} Here, Brannon expressly limited his workers’ compensation claim to the

condition of COPD. At the hearing before the District Hearing Officer, the officer asked

if Brannon was also pursuing the asthma condition or substantial aggravation of asthma.

Brannon’s counsel replied, “[o]f his asthma, no, not at this point.” Brannon’s counsel

further stated, “[m]y request is either COPD or aggravation of COPD.” As a result, the

trial court was precluded from considering evidence that Brannon’s work experience

caused or substantially aggravated any condition other than COPD.

       {¶13} We recognize that to establish the right to participate in the Workers’

Compensation Fund, a claimant has always had to show by

       a preponderance of the evidence, medical or otherwise, not only that his
       injury arose out of and in the course of his employment, but also that a
       direct or proximate causal relationship existed between his injury and his
       harm or disability. (Fox v. Indus. Comm., 162 Ohio St. 569, [(1955)]
       approved and followed.)

White Motor Corp. v. Moore, 48 Ohio St.2d 156, 357 N.E.2d 1069 (1976), paragraph one

of the syllabus.

       {¶14} A recent decision by the Ohio Supreme Court, however, enables Brannon to

argue that his work exposure substantially aggravated the preexisting COPD. Starkey v.
Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956

N.E.2d 267, ¶ 2 (where the court held that: “[b]ecause aggravation of a preexisting

medical condition is a type of causation, it is not a separate condition or distinct injury as

defined in R.C. 4123.01. * * * An appeal taken pursuant to R.C. 4123.512 allows the

claimant to present evidence on any theory of causation pertinent to a claim for a medical

condition that already has been addressed administratively.” Id. at paragraphs one and

two of the syllabus.)

       {¶15} In the instant case, Brannon’s COPD claim fails under both theories —

direct causation and substantial aggravation. None of the letters by Brannon’s expert,

Dr. Kilroy, opine that Brannon’s work directly caused his COPD. Instead, Dr. Kilroy’s

letters discuss the symptoms of Brannon’s asthma, a condition that Brannon elected not to

pursue. The letters state that Brannon’s work exposures: “exacerbated his symptoms,”

“substantially aggravated his underlying bronchospastic disease and most probably

converted his underlying asthma to COPD,” and “worsened his asthmatic condition and

bronchospastic disease to the point that he now has [COPD].”

       {¶16} Furthermore, none of Dr. Kilroy’s letters opine that Brannon’s work

substantially aggravated his COPD. A compensable injury does not include a condition

that preexisted the injury unless the “pre-existing condition is substantially aggravated by

the injury. Such a substantial aggravation must be documented by objective diagnostic

findings, objective clinical findings, or objective test results.” R.C. 4123.01(C)(4).    Dr.

Kilroy never cited any objective medical evidence that Brannon’s “preexisting COPD”
had been substantially aggravated by his work exposures. Rather, Dr. Kilroy opined that

Brannon’s work exposures substantially aggravated his “underlying bronchospastic

disease and asthma.” Thus, based on the foregoing, no genuine issues of material fact

existed and RTA was entitled to judgment as a matter of law. Accordingly, the trial

court properly granted summary judgment in RTA’s favor.

      {¶17} The sole assignment of error is overruled.

      {¶18} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
