Rusin v. Buehrer

[Cite as Rusin v. Buehrer, 2017-Ohio-8411.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARK RUSIN, : APPEAL NO. C-160772
TRIAL NO. A-1403977
Plaintiff-Appellant, :
vs. : O P I N I O N.
STEPHEN BUEHRER, :
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION, :
and :
CITY OF CINCINNATI, :
Defendant-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 3, 2017
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.
OHIO FIRST DISTRICT COURT OF APPEALS
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.
Background
{¶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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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
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OHIO FIRST DISTRICT COURT OF APPEALS
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 that if there were data showing that chelation gives
ALS patients an increased chance of survival, it would be a standard treatment.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} He testified that “it is absolutely not thought of in mainstream
neurology amongst the experts in [ALS] that heavy metal poisoning or heavy metal
toxicity is commonly a contributing factor to ALS.” Mankowski was aware of very
rare cases where it was theorized that “extremely high” levels of heavy-metal toxicity
over a prolonged period of time can cause or contribute to ALS, and that this was
mostly in individuals who are genetically susceptible to ALS. However, he noted that
there was no evidence that Rusin is genetically susceptible to ALS, and thus, it did
not appear that Rusin fit into that very small percentage of individuals. Mankowski
also testified that from reviewing Rusin’s medical records he has concluded that
Rusin’s metal levels were not at the level that Hickey typically sees when Hickey has
concluded that motor-neuron damage resulted from exposure to heavy metals.
{¶10} After considering the testimony and exhibits, the trial court issued a
decision concluding that, “[a]lthough firefighters are disproportionately exposed to
heavy metals as Dr. Mankowski concedes, there is no medical consensus that
environmental factors are a risk for developing ALS. All studies conclude that more
research is needed. The analytical gap unfortunately is just too great between the
epidemiological studies and data and Dr. Hickey’s causation opinions.” Two months
later, the trial court issued a final judgment entry. Rusin timely appealed.
Assignments of Error
{¶11} Rusin asserts three assignments of error. The first is that the trial
court’s holding regarding causation was unsupported by the evidence. The second is
that the trial court failed to utilize the presumption under R.C. 4123.68(W) and to
comply with the requirement of R.C. 4123.95. The third is that the trial court erred
in excluding the OP&F decision and the testimony of other firefighters.
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OHIO FIRST DISTRICT COURT OF APPEALS
Standard of Review
{¶12} In a workers’ compensation appeal, “[t]his court reviews the decision
of the trial court as to issues of fact under a manifest-weight-of-the-evidence
standard, and we will not reverse the trial court’s judgment if it is supported by some
competent, credible evidence.” Bell v. Bur. of Workers’ Comp., 1st Dist. Hamilton
No. C-110166, 2012-Ohio-1364, ¶ 22. In a manifest-weight review, “this court must
review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a manifest miscarriage of
justice.” Moore v. Admr., 1st Dist. Hamilton No. C-140413, 2015-Ohio-3969, ¶ 9.
“As a reviewing court, we must indulge every reasonable presumption in favor of the
trial court’s judgment.” Bell at ¶ 31.
Workers’ Compensation
{¶13} R.C. 4123.68 provides, in relevant part, that “[e]very employee who is
disabled because of the contraction of an occupational disease * * * is entitled to the
compensation provided” by the workers’ compensation statutes. The statute then
enumerates several “scheduled” diseases that are presumed compensable. If a
disease is not “scheduled,” then it is only covered if it “meets the definition of an
occupational disease.” ALS is not one of the scheduled diseases enumerated in R.C.
4123.68.
{¶14} R.C. 4123.01(F) provides a definition of “occupational disease” that the
Ohio Supreme Court has restated as a three-part test:
(1) The disease is contracted in the course of employment; (2) the
disease is peculiar to the claimant’s employment by its causes and the
characteristics of its manifestation or the conditions of the
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OHIO FIRST DISTRICT COURT OF APPEALS
employment result in a hazard which distinguishes the employment in
character from employment generally; and (3) the employment creates
a risk of contracting the disease in a greater degree and in a different
manner than in the public generally.
State ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St.2d 247, 327 N.E.2d 756 (1975),
syllabus.
{¶15} Furthermore, to present a prima facie case involving an injury caused
by exposure to a toxic substance, “a claimant must establish (1) that the toxin is
capable of causing the medical condition or ailment (general causation), and (2) that
the toxic substance in fact caused the claimant’s medical condition (specific
causation).” Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶
15.
The Trial Court’s Judgment Was Not Against the Manifest Weight of
the Evidence
{¶16} Rusin had to prove by a preponderance of the evidence that ALS can
be caused by exposure to heavy metals and/or organophosphates, that his ALS was
caused by such exposure, and that the exposure occurred during the course of his
employment as a firefighter. The trial court found that he failed to meet his burden
of proving causation, though it did not explicitly distinguish its findings between
general and specific causation. To the extent that the trial court held that general
causation was not proven, we find that this holding was in error. Both experts agreed
that there are cases where exposure to heavy metals has likely caused ALS, so such
toxins are “capable of causing the medical condition or ailment.” However, Rusin
must establish general and specific causation, and the trial court’s holding that Rusin
did not prove specific causation was not against the manifest weight of the evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Dr. Mankowski testified that 90-95 percent of ALS cases have no
known cause; that Rusin’s case did not fit into the pattern of those extremely rare
cases where heavy-metal exposure was theorized as causing or contributing to ALS;
and that there was no evidence or data “to conclude that heavy metals had anything
to do with Mr. Rusin’s ALS.” The trial court did not lose its way in giving this
testimony more weight than it gave to the other evidence. While further research
may ultimately vindicate Hickey’s opinions, Mankowski’s testimony regarding
specific causation constitutes competent, credible evidence supporting the trial
court’s determination.
{¶18} Rusin contends that the trial court erred in three ways. His first
contention is that the trial court erred in stating that Rusin’s physicians did not
conduct a differential diagnosis. However, the record does not contain any evidence
that Rusin’s doctors performed a differential diagnosis, and it is not our place to
assume a fact not in evidence.
{¶19} Rusin’s second contention—that the trial court erred in failing to credit
the medical journal articles introduced as exhibits because they established “a causal
link between exposure to heavy metals/organophosphates and the development of
ALS in individuals”—is primarily relevant to the issue of general causation. The
subjects of those articles are factually distinguishable from Rusin’s circumstances,
and therefore are of limited relevance to specific causation. One of the studies
explicitly stated that its results were “based on a small number of cases and required
replication in other populations.” Regardless, to the extent that the articles may
contain evidence as to specific causation, the trial court chose to give Mankowski’s
testimony more weight than these journal articles, and it cannot be said that the trial
court lost its way in doing so.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Rusin’s final contention is that the trial court’s characterization of a
case he cited, Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-
4208, as “essentially turn[ing] on the employer’s failure to object or otherwise
challenge the expert’s testimony,” was incorrect. However, the Walker court stated,
“[g]iving due consideration to the parties’ arguments and following a careful review
of the record, we cannot say, based on the record before us—including the aspects of
[plaintiff’s expert]’s testimony to which Ford raised no objection—that the trial court
abdicated its role as gatekeeper or otherwise abused its discretion in admitting
[plaintiff’s expert]’s testimony.” (Emphasis added.) Id. at ¶ 42. The Walker court
went on to say,
With respect to the other issues in the case—specifically, the issues of
general and specific causation—this was a classic case of a “battle of
the experts.” [Plaintiff’s expert] offered one view on the issue of
causation, and [defendant]’s experts offered the opposing view. The
credibility of the witnesses’ testimony was squarely before the jury,
and the jury was free to accept or reject any of this testimony.
Id. at ¶ 53. Rusin does not articulate how the trial court should have applied Walker
differently, and Walker’s holding supports an affirmance in this case. In Walker,
competing expert testimony was admitted, and the finder of fact credited one expert
over the other. The finder of fact’s decision was supported by competent, credible
evidence, so the Eighth Appellate District did not reverse it. The same situation is
present here, and therefore Rusin’s first assignment of error must be overruled.
The Trial Court Did Not Err In Not Applying R.C. 4123.68(W)
{¶21} Rusin argues that the trial court should have applied the presumption
contained in R.C. 4123.68(W), which provides, in relevant part, that “[a]ny
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OHIO FIRST DISTRICT COURT OF APPEALS
cardiovascular, pulmonary, or respiratory disease of a firefighter * * * caused or
induced by the cumulative effect of * * * the inhalation of * * * toxic substances in the
performance of the firefighter’s * * * duty constitutes a presumption * * * that such
occurred in the course of and arising out of the firefighter’s * * * employment.”
{¶22} Rusin argues that ALS is a “cardiovascular, pulmonary, or respiratory
disease” because it usually causes death by weakening a person’s muscles to the point
that he or she can no longer breathe. However, both experts testified that ALS is a
neurological disease. Sustaining this assignment of error would therefore require us
to rewrite the statute, which is beyond our authority. Doe v. Marlington Local
School Dist. Bd. of Ed., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29
(“It is our duty to apply the statute as the General Assembly has drafted it; it is not
our duty to rewrite it.”).
{¶23} Rusin contends that we may reach his proposed construction of the
statute by applying the directive of R.C. 4123.95 that the workers’ compensation
statutes “shall be liberally construed in favor of employees.” But “ ‘[t]here is no
authority under any rule of statutory construction,’ ” including liberal construction,
“ ‘to add to, enlarge, supply, expand, extend or improve the provisions of the statute
to meet a situation not provided for.’ ” (Emphasis added.) Vought Industries, Inc. v.
Tracy, 72 Ohio St.3d 261, 265, 648 N.E.2d 1364 (1995), quoting State ex rel. Foster
v. Evatt, 144 Ohio St. 65, 56 N.E.2d 265, (1944), paragraph eight of the syllabus;
Dennis v. Smith, 125 Ohio St. 120, 125, 180 N.E. 638 (1933) (“By ‘liberal
construction’ [it] is not meant that words and phrases shall be given an unnatural
meaning * * *.”). This assignment of error must also be overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
The Trial Court Did Not Err When it Excluded Certain Evidence
{¶24} Finally, Rusin claims that the trial court erred when it excluded from
evidence OP&F’s decision that found Rusin’s ALS to be duty-related, and the
testimony of two firefighters who complained of unspecified physical problems after
being exposed to the Queen City Barrel fire, a large fire that Rusin also fought.
{¶25} The trial court’s evidentiary decisions are reviewed under an abuse-of-
discretion standard, Brown v. Mabe, 170 Ohio App.3d 13, 2007-Ohio-90, 865 N.E.2d
934, ¶ 7 (1st Dist.), and the trial court did not abuse its discretion here. Evidence
must be relevant to be admissible, and even relevant evidence can be excluded if its
probative value is outweighed by its potential to confuse the issues or mislead the
finder of fact. Evid.R. 401-403. The issue in this case was whether Rusin’s ALS was
caused by exposure to toxic substances during his work as a firefighter, and neither
piece of evidence was relevant to that issue. The two firefighters’ unspecified
illnesses do not make the cause of Rusin’s ALS more or less probable. See Evid.R.
401. Nor does OP&F’s decision make causation more or less probable, particularly
when there is no evidence in the record demonstrating what legal standards OP&F
applied to reach its determination. See id.{¶26} An abuse of discretion “suggests unreasonableness, arbitrariness, or
unconscionability. Without those elements, it is not the role of this court to
substitute its judgment for that of the trial court.” Conrad v. Valentine, 110 Ohio
St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. There was nothing unreasonable,
arbitrary, or unconscionable about the trial court’s decision to exclude this evidence,
and this assignment of error is therefore overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶27} Having overruled Rusin’s assignments of error, we affirm the trial
court’s judgment.
Judgment affirmed.
MYERS and MILLER, JJ., concur.
Please note:
This court has recorded its own entry this date.
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