State ex rel. Kroger Co. v. Industrial Commission of Ohio

Decision Date07 January 1998
Docket NumberNo. 95-881,95-881
Citation80 Ohio St.3d 649,687 N.E.2d 768
PartiesThe STATE ex rel. KROGER COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Porter, Wright, Morris & Arthur, Karl J. Sutter and Charles J. Kurtz, III, Columbus, for appellant.

Betty D. Montgomery, Attorney General, and Melanie Cornelius, Assistant Attorney General, for appellee Industrial Commission.

Susco & Associates Co., L.P.A., and Michael E. Susco, for appellee Denise Dobbins.

ALICE ROBIE RESNICK, Justice.

The issue presented is whether the commission abused its discretion in awarding claimant TTD compensation for the period from November 21, 1989 to February 21, 1991. Kroger's primary contention is that res judicata applies to prevent claimant from relitigating the issue of TTD compensation for periods preceding February 22, 1991. Kroger argues that this "same issue was previously heard [and] decided adversely to the Claimant" during the proceedings on claimant's first motion for TTD compensation.

Res judicata operates "to preclude the 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." Consumers' Counsel v. Pub. Util. Comm. (1985), 16 Ohio St.3d 9, 10, 16 OBR 361, 362, 475 N.E.2d 782, 783. This principle applies to proceedings before the Industrial Commission. State ex rel. Crisp v. Indus. Comm. (1992), 64 Ohio St.3d 507, 597 N.E.2d 119. See, also, 8 Larson's Workers' Compensation Law (1997) 15-427, Section 79.72(a).

However, in order for res judicata to apply, the issue under consideration must have been "passed upon" or "conclusively decided" in an earlier proceeding. Consumers' Counsel, supra, 16 Ohio St.3d at 10, 16 OBR at 362, 475 N.E.2d at 783; Crisp, supra, 64 Ohio St.3d at 508, 597 N.E.2d at 120. "[R]es judicata does not apply if the issue at stake was not specifically decided in the prior proceeding. * * * " 8 Larson, supra, at 15-478, Section 79.72(f). Thus, in State ex rel. Peabody Coal Co. v. Indus. Comm. (1993), 66 Ohio St.3d 639, 643, 614 N.E.2d 1044, 1047, we declined to apply res judicata to prohibit further TTD compensation without a medical examination, explaining that:

"While the [prior] order did indeed provide that claimant should be examined and a hearing held if claimant requested further temporary total compensation, the order did not expressly prohibit compensation payment in the interim. While this may have been what the commission meant, it is not what it said. As a result, we find that the [subsequent] order did not alter the earlier final order, and res judicata was not violated." (Emphasis added.)

The issue narrows, therefore, to whether the question of compensation for periods preceding February 22, 1991 was specifically decided in the district hearing officer's July 19, 1991 order. The pivotal sentence in that order reads: "Periods of compensation preceding 02-22-91 are omitted since there is no documentation in file at this time." Kroger contends that "omitted" has the same meaning and effect as "denied." In support, Kroger argues:

"Webster's Ninth Collegiate Dictionary defines omit as 'to leave out or leave unmentioned, to fail to perform'; deny is defined as 'to refuse to grant.' Roget's International Thesaurus, Fourth Edition, indicates that the word 'reject' is synonymous with 'refuse' and 'deny'; and Roget's further finds the word 'exclude' to be synonymous with 'reject' and 'omit.' Thus, by 'omitting' compensation for relevant periods, the Commission 'rejected' and 'refused to grant' (denied) compensation for the relevant period."

It is initially apparent that "omit" and "deny" are semantically distinct--they simply have different meanings. In its attempt to equate the two words, Kroger resorts to a thesaurus to cobble together a loose chain of synonyms, an exercise which not only contorts the English language but also exposes the flaws in the argument. Using Kroger's highly selective method, the following argument could also be made. The word "omit" is synonymous with "pass over." Roget's International Thesaurus (4 Ed.1977) 404. "Pass over" is a synonym for "deliver." Id. at 642. "Deliver" is synonymous with "give out," id., which is a synonym for "grant." Id. Thus, if we allowed ourselves to indulge Kroger's reasoning, we could actually find that granting compensation is tantamount to denying it.

Nor can we accept that the prior order, in effect, constituted a denial of compensation for periods preceding February 22, 1991. Aside from the fact that the first order "omitted" rather than denied compensation for those periods, it did so "since there is no documentation in file at this time." It is unreasonable to conclude that a district hearing officer, experienced and well-trained in workers' compensation law, would choose to employ the terms "omitted" and "at this time" without contemplating future proceedings regarding those time periods. In any event, even if "this may have been what the commission meant, it is not what it said." Peabody Coal Co., supra, 66 Ohio St.3d at 643, 614 N.E.2d at 1047.

As a result, we find that the May 18, 1992 order did not alter the earlier final order, and res judicata was not violated.

Kroger also contends that the commission's May 18, 1992 reliance on Dr. Lochner's attending physician's questionnaire is improper, "as medical evidence once rejected cannot be later cited in support of an application," citing State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87. In a related argument, Kroger asserts that "the District Order of May 18, 1992, does not comply with" State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721, "because the 'A.P.Q.' report does not actually support the Commission reasoning, and no other specific evidence is cited."

These arguments ignore the fact that the May 18, 1992 order was not limited to reliance on Dr. Lochner's August 29, 1989 attending physician's questionnaire. Instead, the order stated: "Findings based on medical reports of Dr. Lochner." (Emphasis added.) We have repeatedly held that such a reference to or identification of the medical evidence relied upon is sufficiently precise. State ex rel. Ohio City Mfg. Co. v. Indus. Comm. (1988), 40 Ohio St.3d 170, 172, 532 N.E.2d 748, 750; State ex rel. Lucente v. Indus. Comm. (1984), 15 Ohio St.3d 87, 89, 15 OBR 188, 190, 472 N.E.2d 718, 720; State ex rel. Hutt v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 185, 11 OBR 497, 498, 464 N.E.2d 1005, 1006.

Thus, even if the questionnaire were removed from evidentiary consideration, the commission's order is supported by Dr. Lochner's other reports.

Last, Kroger proposes that R.C. 4123.52 prohibits the commission from awarding TTD compensation to claimant for a back period in excess of two years prior to the date claimant filed her second motion. Thus, Kroger argues, "[c]ompensation simply could not be considered prior to January 23, 1990." However, the relevant filing date for purposes of R.C. 4123.52 is April 30, 1991, the date that claimant initially applied for TTD compensation. See State ex rel. Gen. Refractories Co. v. Indus. Comm. (1989), 44 Ohio St.3d 82, 541 N.E.2d 52.

Thus, the commission did not abuse its discretion in awarding claimant TTD compensation for the period from November 21, 1989 to February 21, 1991.

In light of the foregoing, the judgment of the court of appeals is affirmed.

Judgment affirmed.

DOUGLAS, FRANCIS E. SWEENEY, Sr. and PFEIFER, JJ., concur.

COOK, J., concurs in judgment only.

MOYER, C.J., and LUNDBERG STRATTON, J., dissent.

MOYER, Chief Justice, dissenting.

I respectfully dissent because res judicata bars the claimant from entitlement to compensation for the period November 21, 1989 to February 21, 1991 when a prior order did not award compensation for that period.

The majority relies upon State ex rel. Peabody Coal Co. v. Indus. Comm. (1993), 66 Ohio St.3d 639, 614 N.E.2d 1044, in determining that the award to the claimant here is not barred by res judicata. While the majority is correct in its quotation of that case, Peabody may be distinguished from the instant case on several grounds. First, in Peabody, the prior order specifically stated a procedure by which the claimant could request further temporary total disability compensation beyond the date stated in the order. Id. at 640, 614 N.E.2d at 1045. Therefore,...

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