King v. Republic Steel

[Cite as King v. Republic Steel, 2021-Ohio-861.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JEFFREY L. KING : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2020CA00104
REPUBLIC STEEL, ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No.2019CV01240
JUDGMENT: Affirmed in part; Reversed and Remanded
In part
DATE OF JUDGMENT ENTRY: March 18, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
A. JAMES TSANGEOS KRISTINA M. HARLESS
1810 36th Street N.W. TOD MORROW
Canton, OH 44709 4580 Stephen Circle N.W., Ste. 300
Canton, OH 44718
SARAH E. THOMAS
Assistant Attorney General
Workers’ Compensation Section
615 West Superior Avenue
Cleveland, OH 44113-1899
[Cite as King v. Republic Steel, 2021-Ohio-861.]
Gwin, P.J.
{¶1} Appellant Jeffrey L. King appeals the July 1, 2020 judgment entry of the
Stark County Court of Common Pleas granting appellee Republic Steel’s motion for
summary judgment and overruling his cross-motion for summary judgment.
Facts & Procedural History
{¶2} Appellant is a brick layer and has worked at Republic Steel for thirty years.
{¶3} On December 17, 2017, appellant filed an initial application for benefits
called a First Report of Injury (“FROI”) with the Bureau of Workers’ Compensation
(“BWC”) for an injury dated 5-16 for “pain in left hand.” Dr. Seth signed the application
and included a diagnosis. This was assigned Claim No. 17-221271. Appellant withdrew
this FROI, without prejudice, on January 29, 2018.
{¶4} On December 22, 2017, appellant filed an application for benefits with the
BWC for “pain in the left hand/carpal tunnel.” The injury date was listed as May 1, 2016.
The “treatment information” section of the application form is blank, and contains no
diagnosis. This was assigned Claim No. 17-223150. Appellee, as a self-insured
employer, rejected the claim on December 22, 2017, stating “no medical to support
condition.”
{¶5} Due to appellee’s rejection of the claim, the claim was referred to the
Industrial Commission (“IC”) by the BWC. A District Hearing Officer (“DHO”) held a
hearing on January 26, 2018. Appellant did not appear at the hearing. He states in his
affidavit he was unaware his attendance was mandatory. Appellant had a prior claim for
carpal tunnel in 2006 and his attendance was not required at the hearing because the
condition was allowed by the employer. Appellant avers that in 2006, Dr. Seth submitted
Stark County, Case No. 2020CA00104 3
the medical records for his claim, and appellant assumed he would do the same in this
case. The DHO denied Claim No. 17-223150 and stated as follows:
The Hearing Officer finds that Claimant has provided insufficient probative
medical evidence to substantiate the alleged conditions “carpal tunnel
syndrome left” and “ganglion cyst left volar wrist” as being caused by his
employment with the named Employer. This finding is based upon the lack
of evidence currently on file regarding the mechanism of injury. The
description of the accident on the FROI-I application says “pain in left hand.”
There is currently no medical on file other than the diagnoses provided by
Ajay Seth, M.D., in the medical portion of the FROI application.
{¶6} Appellant did not appeal this denial.
{¶7} On October 24, 2018, appellant re-filed his application for benefits under
Claim No. 17-221271. Appellant listed an injury date of 11-27-2017. The description of
incident is, “repetitive joint motion and gripping/grasping as brick layer.” Both appellant
and Dr. Seth signed the application. The description of injury is “numbness and tingling
in left hand and mass left wrist.” Because the claim was a contested claim and appellee
is self-insured, the BWC referred the claim to a DHO. Dr. Seth submitted medical records
in support of appellant’s claim. The DHO allowed the claim for “carpal tunnel left upper
limb” and “ganglion cyst left volar wrist.” The hearing officer found as follows:
As a preliminary matter, the District Hearing Officer finds that the Industrial
Commission has jurisdiction to adjudicate the issue noticed for today’s
hearing. Although Claimant has filed a similar claim application against the
employer of record on claim number 17-223150, there has not been an
Stark County, Case No. 2020CA00104 4
adjudication of the instant alleged date of injury or mechanism of injury.
Thus, the issue is not res judicata.
It is the finding of this Hearing Officer that the Injured Worker has
established that he contracted an occupational disease in the course of his
employment. Injured Worker sustained injuries to his left upper extremity
and wrist as the result of the repetitive nature of the job duties he performs
as a bricklayer for the employer.
{¶8} Appellee appealed this determination. A staff hearing officer reversed the
decision of the DHO and denied appellant’s claim. The staff hearing officer found as
follows:
In order to find a matter res judicata, there must be identity of the elements
of the claim. In this case, the parties are the same. The issue is the same;
to wit, allowance of claim. The FROI-1 does not distinguish between an
injury or an occupational disease. In fact, the date of injury/disease is listed
and the name of the application itself indicates that a filing addresses either
an injury or an occupational disease. The issue presented by the Claimant’s
application is carpal tunnel syndrome. In both claims, the Claimant is
alleging that he developed carpal tunnel syndrome and a ganglion cyst left
volar wrist due to his job duties as a bricklayer. Additionally, the original
application in the reference claim does not give specific information
consistent with an injury. It is unclear why a date of “5-16” was given on the
original application. However, 11/27/2017 is the date of the first medical
visit with Dr. Seth and is the date that Dr. Seth diagnosed carpal tunnel
Stark County, Case No. 2020CA00104 5
syndrome. Therefore, the Staff Hearing Officer concludes that a different
date on the application is not dispositive in an occupational disease claim.
The date of diagnosis of 11/27/2017 would have been appropriate in both
claims.
The Staff Hearing Officer finds that the elements of the claim are identical.
The only difference is that the Claimant attempted to create a distinction by
changing the date on the subsequent applications in the instant claim. While
this may be an issue in an injury claim, it does not create a distinction in an
occupational disease claim where a diagnosis or date of disability is the
controlling date.
As such, the Staff Hearing Officer finds that the matter is res judicata and
re-adjudication of the same issue is barred.
{¶9} Appellant filed a notice of appeal and complaint with the Stark County Court
of Common Pleas on June 11, 2019. Appellee filed an answer on July 8, 2019.
{¶10} Appellee filed a motion for summary judgment. Appellant filed a brief in
opposition to appellee’s motion for summary judgment and a cross-motion for summary
judgment. Appellant filed an affidavit and accompanying exhibits with his cross-motion
for summary judgment/opposition to appellee’s motion for summary judgment.
{¶11} The trial court issued a judgment entry on July 1, 2020, sustaining
appellee’s motion for summary judgment and overruling appellant’s cross-motion for
summary judgment. The trial court found Claim No. 17-221271 is barred by the doctrine
of res judicata because Claim No. 17-223150 was disallowed with a final judgment on the
merits, and was never appealed by appellant.
Stark County, Case No. 2020CA00104 6
{¶12} Appellant appeals the July 1, 2020 judgment entry of the Stark County Court
of Common Pleas and assigns the following as error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT ON THE BASIS THAT CLAIM NO. 17-221271 WAS
BARRED BY THE DOCTRINE OF RES JUDICATA WHEN THERE HAD BEEN NO
ADJUDICATION ON THE MERITS IN CLAIM NO. 17-223150.
{¶14} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT’S CROSS
MOTION FOR SUMMARY JUDGMENT WHEN APPELLANT PRESENTED EVIDENCE
OF HIS RIGHT TO RECEIVE WORKERS’ COMPENSATION FOR THE CONDITIONS
OF CARPAL TUNNEL SYNDROME, LEFT, AND GANGLION CYST, LEFT VOLAR
WRIST, AND APPELLEE FAILED TO PRODUCE ANY EVIDENCE TO REFUTE THE
DIAGNOSIS OR CAUSAL RELATIONSHIP TO HIS EMPLOYMENT.”
Summary Judgment Standard
{¶15} Civ.R. 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
Stark County, Case No. 2020CA00104 7
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed mostly strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶16} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St. 3d 321, 474 N.E.2d
271 (1984). A fact is material if it affects the outcome of the case under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301, 733 N.E.2d
1186 (6th Dist. 1999).
{¶17} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St. 3d 35, 506 N.E.2d 212 (1987). This means we review
the matter de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
I.
{¶18} Appellant first argues the trial court committed error in granting appellee’s
motion for summary judgment on the basis that Claim No. 17-221271 was barred by the
doctrine of res judicata. Pursuant to our de novo review, we agree with appellant.
Stark County, Case No. 2020CA00104 8
{¶19} The doctrine of res judicata precludes “relitigation of a point of law or fact
that was at issue in a former action between the same parties and was passed upon by
a court of competent jurisdiction.” State ex rel. Kroger Co. v. Indus. Comm. of Ohio, 80
Ohio St. 3d 649, 687 N.E.2d 768 (1998). Where there is a valid, final judgment rendered
on the merits, res judicata bars all subsequent actions based upon any claim arising out
of the transaction or occurrence that was the subject of the previous case. Grava v.
Parkman Twp., 73 Ohio St. 3d 379, 653 N.E.2d 226 (1995).
{¶20} In order to apply the doctrine of res judicata, we must conclude the
following: “(1) there was a prior valid judgment on the merits; (2) the second action
involved the same parties as the first action; (3) the present action raises claims that were
or could have been litigated in the prior action; and (4) both actions arise out of the same
transaction or occurrence.” Id.
{¶21} The preclusive effect of res judicata applies to the following situations: (1)
administrative proceedings that are judicial in nature, including workers’ compensation
proceedings before the Industrial Commission, where the parties have had ample
opportunity to litigate the issues involved in the case; and (2) identical workers’
compensation claims conclusively decided in a valid, final judgment on the merits. State
ex rel. Kroger Co. v. Indus. Comm. of Ohio, 80 Ohio St. 3d 649, 687 N.E.2d 768 (1998).
{¶22} In Greene v. Conrad, 10th Dist. Franklin No. 96APE12-1780, 1997 WL
476703 (Aug. 21, 1997), the court determined when the BWC denies a claim because the
appellant did not submit sufficient information to establish the claim or the investigatory
stage of the claim has not yet been completed, res judicata does not bar a second claim
for workers’ compensation benefits though the injury in the second claim was the subject
Stark County, Case No. 2020CA00104 9
of a prior benefits claims because the BWC failed to address the merits of the first claim.
The court in Greene cited both R.C. 4123.51 and R.C. 4123.511(A) and stated that claims
“are filed with the BWC or the Industrial Commission.” Id. In its decision, the court
focused on whether the parties had an “ample opportunity to litigate the issues involved.”
Id.
{¶23} Following the Greene decision, the Industrial Commission adopted
Resolution 98-1-02. This resolution provides the IC should adjudicate the merits of a
claim when the following scenario occurs: (1) an initial claim is denied because the
“claimant did not provide all the information requested by the Bureau of Workers’
Compensation to establish a claim or for the reason that there was insufficient information
submitted to establish a claim”; (2) no appeal is filed from the order denying the allowance
of the claim; (3) a second application is filed for the same incident/accident; and (4) the
BWC issues an order denying the second claim application, or dismisses the second
claim application, or refers the second claim application to a District Hearing Officer as a
contested claim matter. Ohio Indus. Comm. R98-1-02.
{¶24} In cases litigated subsequent to Greene, courts have examined whether
specific facts meet the Greene test for a claim on the merits. Cremeans v. Contact Indus.,
Inc., 5th Dist. Richland No. 2012-CA-45, 2012-Ohio-5874 (res judicata does not apply
because appellant filed medical evidence that did not support her claim the injury was
related to the accident, thus the original claim was denied on the merits); Godfrey v. Adm.,
Ohio Bureau of Workers’ Compensation, 1st Dist. Hamilton No. C-061055, 2007-Ohio-
5575 (res judicata and Greene does not apply when the BWC received and reviewed
medical records and notes); Faierman v. Conrad, 12th Dist. Butler Nos. CA2003-10-271,
Stark County, Case No. 2020CA00104 10
CA2003-10-272, 2004-Ohio-6319 (no adjudication on the merits of the initial BWC
decision because appellee did not provide medical records in the first claim, so res
judicata did not apply); Marinkovic v. Diversified Inventory Solutions, Inc., 147 Ohio
App.3d 497, 2002-Ohio-453, 771 N.E.2d 291 (9th Dist. Summit) (case does not fall within
the parameters of Greene because the BWC denied the application after reviewing
medical evidence and finding there was not sufficient evidence to show a causal
connection between the injury and employment).
{¶25} Appellee contends res judicata does not apply in this case because Claim
No. 17-223150 was decided by the IC, not the BWC. Based upon the specific facts of
this case, we disagree. Unlike a claim of an employee of a state-funded employer, whose
contested claim is referred to a BWC claims examiner “from which investigation and
determination of issues” is made, a claim that a self-insured employer denies does not go
to the BWC for investigation and determination of issues, but is referred by the BWC to
the IC for a hearing. OAC 4123-3-09; OAC 4123-3-13. Resolution R98-1-02
contemplates a scenario when an employer is self-insured by including the language, “or
refers the second application to a District Hearing Officer as a contested claims matter.”
Further, the Ohio Supreme Court and the Ohio Revised Code specifically state that
“workers’ compensation laws should be liberally construed in favor of employees.” Bailey
v. Republic Engineered Steels, Inc., 91 Ohio St. 3d 38, 741 N.E.2d 121 (2001); R.C.
4123.95.
{¶26} Additionally, this Court has previously applied the Greene analysis to a
situation in which the employee of a self-insured employer did not appear at a hearing in
front of a DHO. Siembidea v. Coastal Pet Products, Inc., 5th Dist. Stark No. 2012-CA-
Stark County, Case No. 2020CA00104 11
00128, 2013-Ohio-1629. In Siembidea, the IC disallowed the claim, finding lack of
compensable mechanism of injury by a medical provider. Id. We found the employer
was not improperly denied a res judicata defense to the employee’s second claim for the
same injury because the facts in the case were analogous to the Greene and Fairman
cases, in which the claimants did not submit medical records. Id. The order of the DHO
in Siembidea stated the claim was disallowed “based on the lack of compensable
mechanism of injury by a medical provider” and no medical records or medical evidence
were submitted to the DHO. Id. We found because this order was “not on the merits, the
lack of jurisdiction by the common pleas court does not improperly deny appellant a res
judicata defense to appellee’s second claim.” Id. See also Hayton v. Reliable Staffing
Resources, 10th Dist. Franklin No. 19AP-237, 2018-Ohio-4985.
{¶27} We find the facts in this case analogous to those in Siembidea, Greene, and
Fairman. The DHO stated the finding was “based upon the lack of evidence currently on
file regarding the mechanism of injury” and made the additional finding that “there is
currently no medical on file other than the diagnoses.” Thus, the initial claim was denied
because there was insufficient information submitted. Similar to the Siembidea, Greene,
and Fairman cases, the employee did not appeal the first order denying the allowance of
the claim, and a second application was filed for the same injury.
{¶28} Appellee also contends the diagnosis listed on the first application in Claim
No. 17-223150 is “medical evidence” that the DHO considered for the purposes of res
judicata. We disagree. The diagnosis was a statement or a conclusion, not the type of
evidence that courts have previously found was medical evidence, such as medical
records, medical or treatment notes, diagnostic tests, and/or medical files.
Stark County, Case No. 2020CA00104 12
{¶29} Upon our de novo review, we find the DHO’s decision denying appellant’s
first application in Claim No. 17-223150 was not an adjudication on the merits. Therefore,
appellant’s second application in Claim No. 17-221271 was not barred by res judicata.
Appellant’s first assignment of error is sustained.
II.
{¶30} In his second assignment of error, appellant contends the trial court
committed error by denying his cross-motion for summary judgment and believes this
Court should enter judgment allowing him to participate in the workers’ compensation
fund for the conditions of carpal tunnel syndrome, left, and ganglion cyst, left volar wrist.
We disagree.
{¶31} R.C. 4123.512(A) allows a claimant to appeal an order of a staff hearing
officer, other than a decision as to the extent of disability, to the court of common pleas.
Clendenin v. Girl Scouts of W. Ohio, 150 Ohio St. 3d 300, 2017-Ohio-2830, 81 N.E.3d
438. The statute authorizes the judge or jury to “determine the right of the claimant to
participate or to continue to participate in the fund.” Id.
{¶32} In this case, we find there is a genuine issue of material fact as to whether
appellant is entitled to participate in the fund. While Dr. Seth submitted his diagnosis and
conclusion in support of appellant, Dr. Reichert opined there was insufficient objective
evidence of carpal tunnel (Exhibit 11 to Affidavit of King; Appellee’s Notice of Expert
Witness). Accordingly, appellant’s second assignment of error is overruled.
{¶33} Based on the foregoing, appellant’s first assignment of error is sustained.
Appellant’s second assignment of error is overruled.
Stark County, Case No. 2020CA00104 13
{¶34} The July 1, 2020 judgment entry of the Stark County Court of Common
Pleas is affirmed in part and reversed and remanded in part.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur