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Bennett v. The Scotts Miracle-Gro Co.

Court of Appeals of Ohio, Third District, Union

July 30, 2018

JAMES R. BENNETT, PLAINTIFF-APPELLANT,
v.
THE SCOTTS MIRACLE-GRO CO., ET AL., DEFENDANTS-APPELLEES.

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

          Michael J. Muldoon for Appellant

          Robert A. Minor for Appellee, Scotts Miracle-Gro Co.

          OPINION

          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 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 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. ...


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