White v. Center Mfg. Co.

• Decision Date: 20 March 1998
• Docket Number: No. H-97-015,H-97-015
• Citation: 711 N.E.2d 281,126 Ohio App.3d 715
• Parties: WHITE, Appellee, v. CENTER MANUFACTURING COMPANY, Appellant, et al.
• Court: Ohio Court of Appeals

Page 715

126 Ohio App.3d 715

711 N.E.2d 281

WHITE, Appellee, v. CENTER MANUFACTURING COMPANY, Appellant, et al.

No. H-97-015.

Court of Appeals of Ohio Sixth District, Huron County.

Decided March 20, 1998.

Melissa L. Eaton and Robert Zelvy, Sandusky, for appellee.

Corrine S. Carman, Columbus, for appellant.

MELVIN L. RESNICK, Judge.

This is an appeal from a judgment of the Huron County Court of Common Pleas wherein a jury determined that appellee, Kenneth Ray White, was entitled to participate in the Ohio Workers' Compensation Fund. Appellant, Center Manufacturing Company, appeals and asserts the following assignments of error:

"1. The trial court committed prejudicial error by excluding evidence of prior misconduct which is probative of the truthfulness of the plaintiff.

"2. The trial court erred in denying appellant's, motion for judgment notwithstanding the verdict where no competent, credible evidence was presented:

"a. That any of appellee Ray White's diseases were contracted in the course of his employment with Center Manufacturing, and;

"b. That appellee's diseases by their causes and the characteristics of their manifestation, or the condition of his employment resulted in a hazard which distinguishes the employment in character from employment generally, and;

"c. That appellee's employment created a risk of contracting his diseases in a greater degree and different manner from the public in general, as required by Ohio Rev.Code § 4123.01(F)."

"3. The trial court erred in denying appellant's motion for a new trial where the verdict was against the manifest weight of the evidence, the judgment was contrary to law, error of law occurred at trial, and manifest injustice was done."

On August 3, 1994, White filed an application for benefits under the Ohio Workers' Compensation Act, alleging that chemical agents in Center Manufacturing Center Manufacturing Company ("Center") produces fireproof safes for residential and commercial use. White was hired by Center in January 1976, when he was approximately twenty years old.

                Company's finish department caused him to develop "allergic rhinitis complicated by Eustachian Tube dysfunction and secondary otitis media, hyper-reactive airway disease (asthma)."   Appellee listed the date of exposure as June 12, 1993.  White's claim was disallowed by the Ohio Bureau of Workers' Compensation and the Ohio Industrial Commission.  Appellee then filed an appeal in the common pleas court.  In a trial de novo to a jury, the following pertinent evidence was adduced
                

For the first year of his employment, White worked in the paint or finish department where safes were "blasted" to remove excess concrete and dirt, dipped in solvent to remove pits, and painted. Although the finish department is not separated from the rest of the factory by walls, it is undisputed that the work performed in that area creates a large amount of cement and silica dust and involves using various solvents, as well as paint. In painting and/or top coating the safes, "paint booths" are employed to gather and draw away excess sprayed paint. The combination of paint, water, and chemicals used to keep the paint from bonding eventually clogs the drains in the "booths" and build up as a sludge-like material. Using shovels, workers are required to clean the sludge out of the booths with shovels and off the walls on a regular basis.

After his first year of employment, White worked in various other areas of the Center plant; however, during "layoff" periods, he worked in the finish department. For approximately seventeen years, the estimated amount of time spent by White in the finish department was two to five months per year in periods of two to three months at a time.

White's testimony disclosed that, as a child, he suffered from frequent earaches. When he was about eight years old, his mother informed him that he was allergic to, among other things, feathers, house dust, and animal hair. White stated that his tonsils were removed when he was eight and, subsequently, all of his symptoms disappeared.

White testified, however, that a few years after he began working at Center, he began experiencing "constant" ear infections, bloody noses, diarrhea, and shortness of breath. On June 12, 1993, appellee worked in the finish department, cleaning the paint booths and suffered some breathing problems. White stated that he did not connect his ear infections, rhinitis or hyperreactive airways disease to the conditions at work until May 1994. After May 1994, and upon his doctor's request, White no longer worked in the finish department. He claimed that all of his physical symptoms disappeared (excepting one incident in 1995 when he worked on a company clean-up crew and was exposed to dust).

After several years of treatment with his family physician, White was referred to Kahlid Mahmood, M.D., a specialist in ear, nose, and throat diseases (otolaryngologist).

In his testimony, Dr. Mahmood revealed that he first examined White on June 17, 1988, and diagnosed him as having a middle ear infection (otitis media). Further testing showed immobile ear drums, indicating an infection of the middle ear and blocking of appellee's eustachian tubes. The doctor inserted ear tubes into appellee's ears to permit drainage. After his condition improved, White had a hearing test that showed a left ear hearing loss and retracted ear drums in both ears. Dr. Mahmood testified that such middle ear infections in adults are unusual.

Dr. Mahmood continued to treat appellee for ear infections over the next several years. In 1993, the doctor surgically repaired a perforation in White's right eardrum caused by an ear infection. During that surgery, Dr. Mahmood noted that one of the small bones in the middle ear that transmit sound was being destroyed, a symptom the doctor also attributed to chronic ear infections. Dr. Mahmood diagnosed appellee as having "chronic otitis media, secondary to eustachian tube dysfunction" and "chronic allergic and vasomotor rhinitis, which is inflammation of the sinus cavities as a result of irritation."

When posed with a hypothetical question assuming the facts in evidence, Dr. Mahmood stated, to a reasonable degree of probability: "My opinion is that his [White's] persistent and recurrent ear problem was connected to exposure at his place of work." He further opined that appellee's risks for rhinitis, repeated ear infections, and eustachian tube obstruction were greater than the risks at other jobs generally. Although, on direct examination, he never provided an opinion linking conditions of White's employment to the development of rhinitis, Dr. Mahmood testified on cross-examination that the sinus problem and the middle ear problem, as far as a disease itself is concerned, "are pretty well one and the same thing."

After examining appellee, Dr. Mahmood referred him to an allergist, James B. Sauers, M.D. Dr. Sauers conducted an allergy test and determined that White was allergic to house dust. Dr. Sauers, in discussing "allergic rhinitis," indicated that not only dust but also hydrocarbons or solvents could trigger the symptoms of the disease. He explained that there are "chemical items which can cause the release of chemical mediators that give the symptoms without going through this antigen, antibody, physiologic response that we classically identify as allergic." The doctor concluded that rhinitis could be caused by chronic exposure to environmental irritants. When asked about the cause of White's rhinitis, the doctor replied:

"I so believe his dust sensitivity is a major contributor to it, as well as airborne particulate irritants may very well play a role that we are suspicious of, but we don't have a documentation of that, other than occasional episodes of being exposed to the particulate industrial dust in his employment."

When asked to provide his opinion, to a reasonable degree of medical probability, as to the cause of appellee's hyperreactive airway disease, or asthma, the doctor stated that "there was a role of environmental contributors to this, and pinpointing the history towards the paint environment has to be strongly recognized."

Two of appellee's co-workers also testified at trial. Russell Bishop described the finish department as very dusty due to the cement dust and stated that employees were "full of paint" when they worked in that department. He further testified that he had seen appellee coughing and exhibiting other flu-like symptoms when White worked in the finish department. Richard A. Doughty also worked in the finish department; he characterized the area as full of concrete dust. He stated that the paint from the safes "comes out into the air" and depicted himself as covered with paint after a day of work. Doughty stated that when the safes are sprayed for the topcoat, "[Y]ou can taste the paint in the air and feel it in your lungs."

The jury found, and judgment was entered thereon, that appellee was entitled to participate in the Workers' Compensation Fund for three occupational diseases: allergic rhinitis, eustachian tube dysfunction with otitis media, and hyperreactive airways disease.

Appellant's first assignment of error contends that the trial court abused its discretion in granting appellee's pretrial motion in limine.

Prior to trial, appellee asked the court to preclude any evidence related to White's alleged theft of a safe in April 1976. The trial court granted this motion, noting that appellant could raise the issue again at trial. Nonetheless, appellant never sought to introduce the evidence that was the subject of the motion in limine at any point during trial.

An appellate court does not directly review the rulings on motions in limine. A pretrial ruling on such a motion is a preliminary precautionary ruling by a court in anticipation of its ruling on evidentiary issues at trial. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285,...