JAMES R. BENNETT, PLAINTIFF-APPELLANT,
THE SCOTTS MIRACLE-GRO CO., ET AL., DEFENDANTS-APPELLEES.
from Union County Common Pleas Court Trial Court No. 17CV0041
Michael J. Muldoon for Appellant
A. Minor for Appellee, Scotts Miracle-Gro Co.
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
Facts and Procedural History
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.
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
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
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. Scotts filed an answer denying that
Bennett should be entitled to participate in benefits under
Ohio Workers' Compensation law for asbestosis.
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.
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.
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.
Bennett did testify on cross-examination that he had been
diagnosed by a different doctor, Dr. ...