Denial of Worker’s Compensation Claim by employee of Scotts Miracle Grow Upheld on Appeal. Court of Appeals, Third District, Union County, July 30, 2018

OHIO — The plaintiff James Bennett filed a worker’s compensation claim for his development of “pleural plaque” disease he attributed to asbestos exposure while working for Scotts Miracle Grow (Scotts). Bennett began receiving benefits for his claim but then filed for additional payments for his recent “asbestosis” diagnosis. The hearing officer denied his claim for asbestosis finding that the plaintiff had not established the disease process. The plaintiff appealed.

On appeal, the parties did not dispute that the plaintiff had been exposed to asbestos. Rather, Scotts contended the plaintiff was not entitled to benefits for asbestosis. Specifically, the plaintiff’s treating physician, Dr. Kim, did not testify that Plaintiff had interstitial fibrosis as required by statutory definition. Instead, Dr. Kim took exception with the definition and stated that the statutory definition for asbestosis would only “encompass severe instances of asbestosis.” He also conceded that scarring in the plaintiff’s lower lobe could have resulted from something other than asbestos exposure. The plaintiff countered Scotts’ position and argued that the trial judge erred by considering the deposition testimony of Scotts’ expert, Dr. Grodner who concluded the plaintiff did not have pulmonary asbestosis. Relying on the State ex rel. Wallace opinion, the plaintiff asserted that his testimony should not have been considered because he did not treat the plaintiff. The court was not persuaded as that opinion was misplaced. Here, Dr. Grodner stated that asbestosis required a finding of interstitial fibrosis. That finding is accomplished by a CT scan. Moreover, Dr. Kim did not dispute that the CT scans lacked the interstitial fibrosis.

Consequently, the court affirmed judgment.

Read the full case decision here.

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