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Rusin v. Buehrer

Court of Appeals of Ohio, First District, Hamilton

November 3, 2017

MARK RUSIN, Plaintiff-Appellant,

         Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO. A-1403977

          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.


          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.


         {¶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.

         {¶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 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 ...

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