[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
-2- Case No. 14-18-04
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.
-3- Case No. 14-18-04
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.
-4- Case No. 14-18-04
{¶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.
-5- 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
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[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
-2- Case No. 14-18-04
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.
-3- Case No. 14-18-04
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.
-4- Case No. 14-18-04
{¶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.
-5- 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.
-6- Case No. 14-18-04
{¶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
-7- 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
-8- Case No. 14-18-04
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.
ZIMMERMAN and PRESTON, J.J., concur.
/jlr
-9-