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Holian v. Suburban Power Piping5/22/1997
JUDGMENT: AFFIRMED.
Plaintiffs, the Estate of Thomas Holian and Joan Holian, widow of Thomas Holian, appeal from the judgment of the trial court which denied their motion for a new trial in plaintiffs' action for participation in the workers' compensation fund. For the reasons set forth below, we affirm.
Thomas Holian died on August 4, 1992 from cancer which had spread to his brain from his lung. Joan Holian subsequently filed a claim for a compensable accidental injury/occupational disease with the Bureau of Workers' Compensation. She maintained that the decedent was an employee of Suburban Power Piping, that this employment entailed exposure to asbestos, and that the decedent's injury/disease was sustained in the course of and arising out of his employment. The claim was denied at each of the administrative levels. Thereafter, on May 5, 1995, the Estate of Thomas Holian and Mrs. Holian filed this action in the court of common pleas for participation in the workers' compensation fund pursuant to R.C. 4123.512. Suburban Power Piping, the Administrator of the Bureau of Workers' Compensation, and the Industrial Commission of Ohio were named as defendants in the action. In relevant part, plaintiffs' complaint alleged as follows:
* Thomas Holian (Deceased) was an employee of Suburban Power Piping * and during the course of and arising out of his employment, sustained an accidental injury/occupational disease *. The matter proceeded to a jury trial on July 8, 1996.
Plaintiffs maintained that the decedent was exposed to asbestos in connection with his employment at Suburban Power Piping and they asserted that he contracted asbestos related pleural fibrosis from this employment. According to plaintiffs, this, in conjunction with the decedent's history of cigarette smoking, produced his fatal lung cancer. For their case, plaintiffs presented the testimony of Joan Holian and Thomas Pulaski, and presented the videotape deposition testimony of Dr. Paul C. Venizelos.
Joan Holian testified that she met the decedent in 1952. At that time, he smoked approximately one and one-half packs of filterless cigarettes per day. The decedent stopped smoking for short times and eventually switched to filter cigarettes before finally quitting in 1989. Mrs. Holian further testified that the decedent worked both as a pipe fitter and a tug boat captain off and on for about twenty-five years. He was diagnosed with lung cancer in December 1991 and stopped working at about this time. He died on August 2, 1992.
Thomas Pulaski testified that he is a member of Pipe Fitters Local Union 120, and worked for Suburban Power Piping for roughly thirty years. The decedent was also a member of Local 120 and worked for Suburban Power Piping, and Pulaski was the decedent's foreman. Pulaski further testified that pipes are frequently covered with asbestos, an insulating material, and that he and the decedent were frequently in contact with it from the repair and servicing of pipes. Personal protective devices were not implemented until some time in the 1980s, however, and the men therefore had significant exposure to asbestos dust.
On cross-examination, Pulaski conceded that the decedent worked for companies other than Suburban had also worked as a tug boat captain.
Dr. Venizelos, who is board certified in internal medicine and pulmonary diseases testified that Thomas Holian was referred to him following an abnormal chest radiograph. Dr. Venizelos examined him on April 2, 1990. At this time, the doctor detected pleural thickening with mild restriction of the lung. Venizelos further testified that he is a federally certified "B Reader" of chest f
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