[Cite as Bennett v. Scotts Miracle-Gro, 2018-Ohio-3004.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY




JAMES R. BENNETT,

       PLAINTIFF-APPELLANT,                                     CASE NO. 14-18-04

       v.

THE SCOTTS MIRACLE-GRO CO.,
ET AL.,                                                         OPINION

       DEFENDANTS-APPELLEES.




                  Appeal from Union County Common Pleas Court
                            Trial Court No. 17CV0041

                                      Judgment Affirmed

                             Date of Decision:         July 30, 2018




APPEARANCES:

        Michael J. Muldoon for Appellant

        Robert A. Minor for Appellee, Scotts Miracle-Gro Co.
Case No. 14-18-04


SHAW, J.

       {¶1} Plaintiff-appellant, James R. Bennett (“Bennett”), brings this appeal

from the January 18, 2018, judgment of the Union County Common Pleas Court

denying his claim for workers’ compensation made against self-insured employer

Scotts Miracle-Gro Co. (“Scotts”) following a bench trial. On appeal, Bennett

argues that the trial court erred in relying on a doctor’s testimony to support its

conclusion when the doctor had not personally examined Bennett.

                       Relevant Facts and Procedural History

       {¶2} Bennett began working for Scotts in 1967 and continued working there

until he retired in 2009. It is undisputed that while working for Scotts he was

exposed to asbestos.

       {¶3} In November of 2004 Bennett was diagnosed with the occupational

disease of “pleural plaque” as a result of asbestos exposure. Bennett filed a workers’

compensation claim with Scotts, a self-insured employer, and the claim was

allowed. Bennett received ongoing monitoring and treatment until June 7, 2016,

when he filed a motion for an additional allowance for the diagnosis of “asbestosis.”

       {¶4} Bennett’s claim was heard on October 31, 2016, before a District

Hearing Officer and it was ultimately denied based on the report from Dr. Herbert

Grodner. Bennett appealed the matter to a Staff Hearing Officer, who heard the

appeal on December 8, 2016. The Staff Hearing Officer affirmed the decision of


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the District Hearing Officer, finding that the medical evidence in the file failed to

sufficiently substantiate the presence of asbestosis. Bennett then appealed to the

Industrial Commission, but that appeal was refused.

        {¶5} On February 21, 2017, Bennett filed an appeal to the Union County

Common Pleas Court from the decision of the Industrial Commission denying his

claim for “asbestosis” against Scotts.1 Scotts filed an answer denying that Bennett

should be entitled to participate in benefits under Ohio Workers’ Compensation law

for asbestosis.

        {¶6} The matter proceeded to a bench trial on November 22, 2017. The

parties clarified the dispute at the beginning of the trial, indicating that there was no

question that Bennett was exposed to asbestos while working with Scotts, and that

there was no question that he was entitled to medical benefits and monitoring for

his pleural plaque diagnosis; however, Scotts contended that the evidence could not

establish that Bennett had developed asbestosis as it was defined in various

textbooks, treatises, and in the Ohio Revised Code.

        {¶7} The final hearing then proceeded, with Bennett testifying on his own

behalf. Bennett identified the various jobs he had worked for Scotts and how he was

exposed to asbestos while working for Scotts. Bennett indicated he began seeing




1
 Bennett joined the Bureau of Workers’ Compensation to the appeal, but as Scotts was a self-insured
employer, the Bureau had little interest in the matter and we will not further address the Bureau.

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Dr. John Kim regularly for monitoring and treatment around 2005, and that he met

with him as often as every 4-6 months since.

       {¶8} Bennett testified that his condition left him short of breath and with pain

in his sides. He indicated that his lung capacity had decreased over the years and

that he was on an inhaler, Albuterol. Bennett testified that he had worked with a

number of people at Scotts who had problems as a result of being exposed to

asbestos, that their issues sometimes turned into mesothelioma and led, shortly

thereafter, to death.

       {¶9} Bennett did testify on cross-examination that he had been diagnosed by

a different doctor, Dr. Patel, for asthma in recent years.

       {¶10} Following Bennett’s testimony, he introduced the deposition transcript

of Dr. Kim, Bennett’s ongoing pulmonologist. In his deposition, Dr. Kim testified

that he specialized in “pulmonary critical care and sleep,” that he was board

certified, and that he first saw Bennett in June of 2005. Dr. Kim testified that in

2005 Bennett had pleural thickening, but he did not have symptoms such as a

chronic cough at that time.

       {¶11} Dr. Kim testified that over the years, Bennett complained off and on

of shortness of breath, though not to a significant degree until October of 2015. At

that time, Bennett had worsening chest pain and was sent for a cardiac evaluation,

though no issues related to Bennett’s heart were found.


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       {¶12} Dr. Kim ordered various tests to be done including a CT scan of

Bennett, resulting in a report of “minimal subpleural scarring within the left lower

lobe anterior basilar segment.” But, the scan did not show interstitial fibrosis. Dr.

Kim also had Bennett perform pulmonary function testing, which showed decreases

in Bennett’s pulmonary functioning since 2005, some to a significant degree. Dr.

Kim testified that based on his physical examination and the test results, he

diagnosed Bennett with asbestosis.

       {¶13} Scotts cross-examined Dr. Kim by asking him if he was familiar with

a number of books and treatises that defined asbestosis as requiring “diffuse

interstitial fibrosis of the lungs,” which was not present in Bennett’s case in the CT

scans. Dr. Kim testified that he disagreed with those definitions, including the

definition of “asbestosis” in Ohio Revised Code 2307.91(D), which reads, “

‘Asbestosis’ means bilateral diffuse interstitial fibrosis of the lungs caused by

inhalation of asbestos fibers.” Dr. Kim testified that such a definition would really

only encompass severe instances of asbestosis.

       {¶14} Dr. Kim also admitted on cross-examination that the “minimal

subpleural scarring within the left lower lobe anterior basilar segment” found in

Bennett on the CT scan could have been the result of factors other than asbestos

exposure.




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Case No. 14-18-04


       {¶15} With Bennett’s testimony, the testimony of Dr. Kim, and

accompanying exhibits, Bennett rested his case.

       {¶16} In its case-in-chief Scotts presented the deposition testimony of Dr.

Herbert Grodner, who had examined Bennett’s records. Dr. Grodner had been

licensed to practice medicine in 1967 and was board certified in internal medicine

and pulmonary medicine; however, he was no longer engaged in private practice,

engaging primarily in consulting for entities such as the Bureau of Workers’

Compensation and the Department of Labor, etc. Dr. Grodner testified essentially

that by definition if there was no interstitial fibrosis there was no pulmonary

asbestosis in a patient. Hence he concluded that in his opinion, to a reasonable

degree of medical probability, Bennett did not have pulmonary asbestosis because

he did not meet the definition.

       {¶17} On cross-examination Dr. Grodner admitted that he did not personally

examine Bennett and that such a personal examination would certainly be helpful;

however, he opined that it would only be helpful in confirming what was shown on

the CT scans, and here, the CT scans did not show interstitial fibrosis.

       {¶18} With the introduction of Dr. Grodner’s testimony and accompanying

exhibits, Scotts rested. The parties filed written closing arguments arguing for their

positions.




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      {¶19} On January 18, 2018, the trial court filed its judgment entry on the

matter, ultimately denying Bennett’s claim for asbestosis.         The trial court

summarized all of the testimony presented at trial and through depositions and

reached the following decision.

      Considering all of the evidence, the Court finds that Plaintiff-
      Claimant has failed to meet his burden of proof necessary to
      establish that his claim should be additionally allowed for the
      condition of asbestosis. Even with the understanding that medical
      diagnosis “is an art, not a science,” the evidence before the Court
      is convincing that interstitial fibrosis is a sine qua non for the
      diagnosis of asbestosis, and in the absence of such physiological
      finding, the diagnosis cannot be legally supported.

(Doc. No. 26).

      {¶20} It is from this judgment that Bennett appeals, asserting the following

assignment of error for our review.

                            Assignment of Error
      The Plaintiff-Appellant would state that it was error for the Trial
      Judge to rely upon the deposition testimony of Dr. Herbert
      Grodner since Dr. Grodner was not an examining physician and,
      therefore, pursuant to State ex rel. Wallace v. The Industrial
      Commission of Ohio, 57 Ohio St.2d 55 (1979), the Court could not
      rely upon Dr. Grodner’s testimony since he did not accept the
      factual findings of a doctor who had actually examined the
      Plaintiff-Appellant.

      {¶21} In his assignment of error, Bennett argues that the trial court erred by

relying on Dr. Grodner’s testimony since Dr. Grodner did not personally examine

Bennett. Specifically, Bennett argues that under State ex rel. Wallace v. The

Industrial Commission of Ohio, 57 Ohio St.2d 55 (1979), Dr. Grodner was required

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Case No. 14-18-04


to accept all factual findings of the examining physician since he did not personally

examine Bennett.

       {¶22} The case that Bennett relies primarily upon does not support his

contention in this case. In Wallace, the Supreme Court of Ohio actually stated that

a non-examining physician reviewing a file must accept the examining physician’s

factual findings, but can draw his own opinions therefrom. See Wallace at 59-60.

Here, Dr. Grodner never challenged any of the factual findings made by Dr. Kim.

He accepted that the CT scan showed “minimal subpleural scarring within the left

lower lobe anterior basilar segment,” that Bennett’s lung capacity had decreased

according to the testing and that he presented with a cough and shortness of breath

more often. What Dr. Grodner did not accept was the opinion drawn therefrom—

that Bennett had asbestosis.

       {¶23} Dr. Grodner indicated that by definition asbestosis required

“interstitial fibrosis,” and the “gold-standard” for detecting interstitial fibrosis was

through a CT scan. It was not disputed, even by Dr. Kim, that Bennett’s CT scans

did not show interstitial fibrosis. Therefore Dr. Grodner gave his expert opinion,

based on the accepted factual evidence, that Bennett, by definition, did not have

asbestosis.

       {¶24} Based on this, we do not accept the premise of Bennett’s argument that

the trial court erred by allowing Dr. Grodner to render an opinion based on the


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evidence he reviewed even though he did not personally examine Bennett. There is

simply no indication that Dr. Grodner failed to accept any of the facts as presented

to him. See also State ex rel Lampkins v. Dayton Malleable, Inc. 45 Ohio St.3d 14

(1989) (noting that Wallace had been relaxed since its ruling).

       {¶25} Furthermore, to the extent that Bennett’s argument seeks to challenge

the trial court’s decision as essentially being against the weight of the evidence, we

cannot find that the trial court erred. Here the trial court was presented with

conflicting expert opinions and the trial court reverted back to the definition of

“asbestosis” used by the Ohio Revised Code and many medical journals, which

required that there be interstitial fibrosis for a diagnosis. The trial court found that

absent this definitional requirement, Bennett did not meet his burden of proof.

Under the facts before us, we cannot find that the trial court clearly lost its way.

Therefore, Bennett’s assignment of error is overruled.

                                     Conclusion

       {¶26} For all of these reasons, Bennett’s assignment of error is overruled and

the judgment of the Union County Common Pleas Court is affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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