Manning v. FCA US, LLC

Decision Date28 February 2020
Docket NumberCourt of Appeals No. L-19-1144
Citation2020 Ohio 706
PartiesGary D. Manning Appellant v. FCA US, LLC and Sarah D. Morrison, Administrator, Bureau of Workers' Compensation Appellee
CourtOhio Court of Appeals

DECISION AND JUDGMENT

Thomas G. Schlageter, for appellant.

Carrie L. Urrutia and William D. Holt, for appellee FCA US, LLC.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Gary D. Manning, appeals from the June 20, 2019 judgment of the Lucas County Court of Common Pleas, which granted summary judgment to appellee, FCA US, LLC, hereinafter "FCA." For the reasons which follow, we affirm. On appeal, Manning presents two assignments of error:

1. Because the Industrial Commission of Ohio never previously addressed the injured worker's request for an additional claim allowance based on a flow-through theory of causation the doctrine of res judicata does not apply.
2. A mandamus action is the proper way to challenge the Industrial Commission's exercise of its continuing jurisdiction.

{¶ 2} Manning was injured at work on February 10, 2015, and an Ohio Bureau of Workers' Compensation ("BWC") claim was allowed for a lumbar sprain/strain and left lateral herniated disc L4-5 on a substantial aggravation basis. On April 4, 2016, Manning had surgery for the allowed claim. Manning asserts that in May 2016, he experienced increased low back pain during post-surgery therapy and his doctor determined the L3-4 disc had collapsed. On August 9, 2016, Manning filed a motion to additionally allow a claim for a "herniated disc at L3-4." Attached to the motion was the July 27, 2016 chart note of his doctor and MRI reports from 2014, 2015, and June 2016.

{¶ 3} The Ohio Industrial Commission ("IC") district hearing officer ("DHO") disallowed the claim on December 10, 2016. The DHO found Manning's "herniated disc L3-4" was the result of a degenerative process based on the "the more persuasive" November 16, 2016 report of Dr. Purewal, who opined, based on a 2015 MRI, that Manning did not sustain a herniated disc at L3-4 as a direct and proximate or substantial aggravation basis of the original injury. Manning appealed this decision to the IC staff hearing officer ("SHO").

{¶ 4} On January 28, 2017, the SHO affirmed and modified the order of the DHO. The SHO added the motion was disallowed "on the direct and proximate and substantial aggravation basis" pursuant to IC Memo S11.1 The SHO based her decision on the same2016 report of Dr. Purewal. Manning did not appeal this decision to the court of common pleas.

{¶ 5} On January 5, 2018, Manning moved for an additional allowed claim "on a flow-through basis" for the specific injury of a "disc protrusion, disc herniation, and central canal stenosis at L3-L4." Additional medical treatment records relating to Manning's operation and aftercare were attached to the motion. This second motion did not seek reconsideration of the prior order rejecting an allowance for an additional claim of "herniated disc at L3-4." Instead, it was a claim for an additional allowance based on a different theory of causation to connect the injury to the original industrial injury.

{¶ 6} In a March 22, 2018 order, the DHO disallowed the second motion on the ground that the "conditions at the L3-L4 level pre-existed the industrial injury and were not substantially aggravated. As the conditions pre-existed the industrial injury, the injuries were not allowable on a flow-through basis." The DHO based her decision on the updated 2018 report of Dr. Purewal. Manning appealed. FCA opposed the appeal on the basis that the doctrine of res judicata precluded consideration of this motion because this theory of causation could have been litigated within the first motion filed on August 10, 2016.

{¶ 7} In a May 15, 2018 order, the SHO addressed the FCA res judicata argument. The SHO found the SHO's order of January 20, 2017, specifically noted the "flow-through theory of causation was not addressed" with respect to the first motion for an additional allowance and, therefore, the second motion was not barred because it relatedto a "subsequent specific event which occurred in physical therapy in May of 2016." After reviewing the evidence of an updated report of Dr. Purewal, dated February 21, 2018, which was based on his examination of Manning post-surgery, and the treatment records of Manning's doctor, the SHO allowed the condition on a flow-through theory of causation.

{¶ 8} FCA appealed the May 15, 2018 order to the IC which refused the appeal. Thereafter, FCA appealed the decision to the Lucas County Court of Common Pleas. FCA moved for summary judgment arguing the second motion for an allowed claim of disc protrusion/herniation at L3-4 was barred under the doctrine of res judicata because the IC had previously denied the claim. Manning argued res judicata was not applicable because the theory of causation was different in the second motion.

{¶ 9} In its May 16, 2019 judgment, the trial court granted summary judgment to FCA relying upon our decision in Brown v. Sheller Globe City Auto Stamping Co., 6th Dist. Lucas No. L-98-1234, 1998 WL 880236 (Dec. 18, 1998). In Brown, we considered whether the IC properly rejected, on res judicata grounds, a second motion to reactivate a claim based on new medical evidence of an additional condition. Id. at *1. The IC denied the first motion to reactivate a workers' compensation claim due to "degenerative arthritis" on the ground there was insufficient medical evidence to establish the condition was related to the original industrial injury to the claimant's left elbow. Id. That decision was not appealed. Id. We agreed with the IC that a second motion to reactivate the claimfor the condition of "left elbow degenerative joint disease" and "osteoarthritis" was barred on res judicata grounds because the two claims involved the same condition. Id. at *2.

{¶ 10} In the case before us, the trial court applied the reasoning of Brown and initially found the conditions asserted in the two motions were not entirely the same and, therefore, found res judicata did not bar the second motion entirely. However, on reconsideration, the trial court concluded, in its June 20, 2019 judgment, that there was no genuine issue of material fact and that "herniated disc at L3-4" and "disc protrusion, disc herniation, and central canal stenosis at L3-L4" are a single condition. Therefore, the court found res judicata barred adjudication of the second motion for allowance of the same condition. Manning appeals.

{¶ 11} We address the assignments of error out of order to address appellant's second assignment of error first. In his second assignment of error, appellant argues appellee must challenge the exercise of the IC's continuing jurisdiction in a mandamus action filed in the appellate court. Appellant relies on State ex rel. Belle Tire Distribs., Inc. v. Indus. Comm. of Ohio, 154 Ohio St.3d 488, 2018-Ohio-2122, 116 N.E.3d 102. In Belle Tire, the Ohio Supreme Court held that when an issue is raised which relates to the exercise of the continuing jurisdiction of the IC, rather than the factual issue of a right to participate, the issue must be raised in a mandamus action rather than in an appeal under R.C. 4123.512. Id. at ¶ 24-25.

{¶ 12} "Flow-through" or residual injuries are conditions arising in a different part of the body as a proximate result of the previously allowed injury or condition. Holbrook v. OhioHealth Corp., 10th Dist. Franklin No. 14AP-507, 2015-Ohio-2354, ¶ 29; Kirkwood v. Neptune World Wide Movers, 9th Dist. Medina No. 1837, 1990 WL 34842, *2 (Mar. 28, 1990). Flow-through injuries are considered under the continuing jurisdiction of the IC pursuant to R.C. 4123.52. R.C. 4123.84(C); Specht v. BP Am. Inc., 86 Ohio St.3d 29, 711 N.E.2d 225 (1999), syllabus. Furthermore, the allowance of a flow-through/residual condition impacts the right to participate and a challenge to the IC order must be made in an appeal to the common pleas court. State ex rel. Bond v. Velotta Co., 91 Ohio St.3d 418, 419, 746 N.E.2d 1071 (2001).

{¶ 13} Under Ohio's workers' compensation system, judicial review is limited to three types of proceedings: direct appeal to the common pleas court, R.C. 4123.512; an original action for a writ of mandamus, R.C. Chapter 2731; or a declaratory judgment, R.C. Chapter 2721. Clendenin v. Girl Scouts of W. Ohio, 150 Ohio St.3d 300, 2017-Ohio-2830, 81 N.E.3d 438, ¶ 9, citing Felty v. AT & T Technologies, Inc., 65 Ohio St.3d 234, 237, 602 N.E.2d 1141 (1992). Failure to seek the appropriate review precludes the court from finding it has subject-matter jurisdiction, which would require that the court dismiss the case. Id.

{¶ 14} Pursuant to R.C. 4123.512, "[t]he claimant or the employer may appeal an order of the industrial commission made under division (E) of section 4123.511 of the Revised Code in any injury or occupational disease case, other than a decision as to theextent of disability to the court of common pleas * * *." The Ohio Supreme Court has strictly interpreted this provision and limited the jurisdiction of the common pleas court to reviewing the grant or denial of the right to participate or continue to participate in the workers' compensation fund for the original injury/condition and any allowance for an additional condition. Clendenin at ¶ 11, citing Felty at 238.

{¶ 15} However, an original action must be filed to challenge the exercise of the continuing jurisdiction of the IC under R.C. 4123.52 to grant or deny a motion to reconsider a former ruling due to changed circumstances, fraud, newly discovered evidence, or some other valid criteria, Benton v. Hamilton Cty. Educ. Serv. Ctr., 123 Ohio St.3d 347, 2009-Ohio-4969, 916 N.E.2d 778, ¶ 6, 17.

{¶ 16} In this case, the first motion requested the claim be additionally allowed for a herniated disc at L3-4, which was denied and never appealed. The second motion requested the claim...

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