COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73431 TIMOTHY L. HOTTEL : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION TIMOTHY L. HOTTEL, DDS., INC. : ET AL. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-319427. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: I. Bernard Trombetta, Esq. 30505 Bainbridge Road Solon, Ohio 44139 For Defendants-appellees: Betty D. Montgomery Attorney General James P. Mancino Dennis Rehor Assistant Attorneys General State Office Building, 12th Floor 615 Superior Avenue Cleveland, Ohio 44113-1899 -2- SWEENEY, JAMES D., J.: This matter is before this court upon the appeal of Plaintiff- appellant Timothy Hottel appeals from the finding of the Court of Common Pleas denying appellant's motion for summary judgment and granting the motion for summary judgment of defendants-appellees Timothy L. Hottel, D.D.S., Inc. and James Conrad, Administrator, Bureau of Workers Compensation. The parties have no disagreement as to the basic facts of this case. Dr. Hottel requested an allowance for an occupational disease for asthma and reactive airway disease. The appellant admits that he suffered childhood asthma, but never missed a day of work or school because of this condition. Dr. Hottel suffered an exacerbation of his asthma from his work as a dentist when, in 1990, new standards were introduced requiring the use of sterilizationchemicals in an attempt to prevent the spread of the HIV virus. Using substitute chemicals did not alleviate Dr. Hottel's condition. Exposure to these chemicals caused Dr. Hottel to sell his practice in 1996 and he is currently able to practice dentistry two days per month. The appellant sets forth the following three assignments of error: THE LOWER COURT ERRED IN RULING THAT THE APPELLANT WAS NOT ENTITLED TO PARTICIPATE IN THE WORKERS COMPENSATION FUND FOR AGGRAVATION OF A PRE-EXISTING CONDITION NOT CONTRACTED DURING THE COURSE OF EMPLOYMENT. THE LOWER COURT ERRED IN DENYING THE APPELLANT THE RIGHT TO PARTICIPATE IN THE WORKERS COMPENSATION FUND FOR THE AGGRAVATION OF A -3- PRE-EXISTING CONDITION CAUSED BY EMPLOYMENT RELATED ACTIVITIES. THE LOWER COURT ERRED IN DENYING THE APPELLANT THE RIGHT TO PARTICIPATE IN THE WORKERS COMPENSATION FUND FOR THE AGGRATVATION OF A PRE-EXISTING CONDITION WHEN THE AGGRAVATION, STANDING ALONE, AMOUNTED TO A SEPARATE OCCUPATIONAL DISEASE. The appellant asserts that his current disability has been caused by the conditions of his employment; that the causes of the exacerbation are unique to the appellant's employment; and that the appellant's employment created a risk of contracting severe airway obstruction in a greater degree and in a different manner than the general public. The appellant argues that a pre-existing medical condition should not bar a claimant from participating in the state workers' compensation fund. This court reviews the lower court's granting or denial of motions for summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704. Under Civ.R. 56, summary judgment is proper when there is no genuine issue as to any material fact remaining to be litigated; the moving party is entitled to judgment as a matter of law; and, it appears from the evidence that reasonable minds can come but to one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Jones v. Chagrin Falls (1997), 116 Ohio App.3d 249, citing to State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Summary judgment shall be rendered -4- forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is not genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). R.C. 4123.01 defines occupational disease as follows: (F) Occupational Disease means a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general. In State ex rel. Miller v. Mead Corp. (1979), 58 Ohio St.3d 405, the Supreme Court held that a pre-existing disease, aggravated while a claimant is in the employ of an employer subject to the Workers' Compensation Act, may not be the subject of a compensation from the Fund. Subsequently, the court recharacterized its definition of injury to allow a claimant to be compensated for an injury which develops gradually over time as the result of a performance of an injured worker's job-related duties. Compton v. 7-Up Bottling Co./Brooks Beverage Mgt. (1997), 119 Ohio App.3d 490, citing to Village v. Gen. Motors Corp. (1984), 15 Ohio St.3d 129. Prior to Village, supra, in order to be compensable, an injury had to be sudden. Id. at 492. The next case of import is Oswald v. Connor (1985), 16 Ohio St.3d 38, where the Supreme Court decided that a death from a pre- existing cause and accelerated by an occupational disease -5- contracted in the course of and arising out of the scope of employment, is compensable where the death is accelerated by a substantial period of time as a direct and proximate result of the occupational disease. In its most recent case on this issue, Brody v. Mihm (1995), 72 Ohio St.3d 81, the court determined that Village and Oswald did not overrule Miller. In Brody, the court specifically stated that: The change in the definition of `injury,' however, does not affect that portion of Miller which holds that a pre-existing disease aggravated during employment is not compensable. As to Oswald, the court stated it was merely an extension of case law decided prior to Miller, and that consequently, claims for aggravation of a pre-existing disease are compensable only where the aggravation itself qualifies as a compensable injury or an occupational disease. The court in Brody stated it need not determine whether Miller should be overruled because the claimant in that case was otherwise precluded from receiving compensation. In the case sub judice, the appellant argues that because his disability arises out of conditions occurring at this workplace, that the conditions are unique to his employment, and that the risk of those conditions is greater than for the public at large, that his disease rises to the level of an occupational disease which is compensable. However, the fact remains that Ohio does not recognize such claims and nothing within the court's decision of Brody changes the law. See Compton, supra, at 493. Thus, it is clear that at the present time, or at least until the General -6- Assembly or the Supreme Court determines otherwise, a pre-existing condition which is aggravated during employment is not compensable. The appellant's assignments of error are overruled. Judgment affirmed. -7- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. TERRENCE O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .