         [Cite as Witschger v. E.I. DuPont De Nemours & Co., 2014-Ohio-1912.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



DONALD L. WITSCHGER,                             :         APPEAL NO. C-130536
                                                           TRIAL NO. A-1202598
        Plaintiff-Appellant,                     :

  vs.                                            :              O P I N I O N.

E. I. DUPONT DE NEMOURS AND                      :
COMPANY,
                                                 :
  and
                                                 :
STEPHEN BUEHRER,
ADMINISTRATOR, OHIO BUREAU                       :
OF WORKERS’ COMPENSATION,

    Defendant-Appellees.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 7, 2014

O’Connor, Acciani, and Levy Co., L.P.A., and Ronald T. Bella for Plaintiff-Appellant,

Vorys, Sater, Semour, and Pease L.L.P. and Andrew M. Kaplan for Defendant-
Appellee E. I. DuPont De Nemours and Company.

Mike DeWine, Ohio Attorney General, and Steven P. Fixler, Assistant Attorney
General, for Defendant-Appellee Stephen Buehrer, Administrator, Ohio Bureau of
Workers’ Compensation.


Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Judge.

       {¶1}    Plaintiff-appellant Donald Witschger appeals from the trial court’s entry

granting summary judgment to defendant-appellee E. I. DuPont De Nemours and

Company (“DuPont”) on his complaint seeking participation in the workers’

compensation system for a left shoulder injury on May 5, 2008. We disagree with the

trial court’s conclusion that Witschger’s claim was barred by the doctrine of election of

remedies. We hold, however, that because Witschger was already participating in the

workers’ compensation fund for this very same injury with a different employer, Troy

Electric, the doctrine of collateral estoppel precludes his workers’ compensation claim

against DuPont. We, therefore, affirm the trial court’s decision granting summary

judgment to DuPont on this separate basis.

                    Witschger’s Workers’ Compensation Claims

       {¶2}    Witschger sustained a work-related injury to his left shoulder on May 5,

2008. On February 11, 2010, he filed a workers’ compensation claim against DuPont.

DuPont defended the claim by arguing that Troy Electric had been Witschger’s employer

at the time of his injury. As a result, Witschger filed a separate workers’ compensation

claim against Troy Electric for the same shoulder injury on May 4, 2010.

       {¶3}    The Industrial Commission allowed Witschger’s claim for workers’

compensation benefits against Troy Electric, awarding him permanent-partial disability

compensation. It denied Witschger’s claim against DuPont, finding that he was not an

employee of DuPont at the time of his injury on May 5, 2008.               The Industrial

Commission’s decision allowing Witschger’s claim against Troy Electric has not been

appealed to the common pleas court.

       {¶4}    On October 1, 2010, Witschger appealed the denial of his claim against

DuPont to the common pleas court. He dismissed the appeal without prejudice and re-



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filed it on April 4, 2012. Shortly thereafter, DuPont moved for summary judgment. It

argued that Witschger’s claim was barred by the doctrine of election of remedies. The

trial court agreed and granted summary judgment to DuPont.

                                    Summary Judgment

       {¶5}      On appeal, Witschger raises a single assignment of error, in which he

argues that the trial court erred in granting summary judgment to DuPont.

       {¶6}      We review de novo a trial court’s grant of summary judgment under

Civ.R. 56.    See Fisher v. Archdiocese of Cincinnati, 1st Dist. Hamilton No. C-130295,

2014-Ohio-944, ¶ 16. Under Civ.R. 56(C), summary judgment is appropriate when no

genuine issues of material fact remain, the moving party is entitled to judgment as a

matter of law, and it appears from the evidence that reasonable minds can come to but

one conclusion, and with the evidence construed most strongly in favor of the

nonmoving party, that conclusion is adverse to that party. Id.

                      Election of Remedies Does Not Apply

       {¶7}      Witschger argues the trial court erred in granting summary judgment to

DuPont on the basis that his workers’ compensation claim was barred by the doctrine of

election of remedies. We agree.

       {¶8}      The doctrine of election of remedies applies when there is “(1) the

existence of two or more remedies; (2) the inconsistency of such remedies; and (3) a

choice of them.” (Citations omitted.) Saunders v. Holzer Hosp. Found., 4th Dist. Gallia

No. 08CA11, 2009-Ohio-2112, ¶ 19, quoting Davis v. Rockwell Internatl. Corp., 596

F.Supp. 780, 787 (N.D.Ohio 1984).

       {¶9}      Ohio courts have applied the doctrine in workers’ compensation cases

“when an employee accepts benefits but later brings an action against an employer




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alleging negligence.” Id. at ¶ 18-23; see Mitchell v. Internatl. Flavors & Fragrances,

Inc., 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 12-30 (1st Dist.).

       {¶10}   They have also applied the doctrine where employees have sustained two

separate injuries and have the opportunity to elect administratively how to pursue their

right to participate in the workers’ compensation fund for the second injury―either as a

continuation of a prior claim or as a new claim. See Childers v. Union Fork & Hoe Co.,

10th Dist. Franklin No. 94APE07-1036, 1995 Ohio App. LEXIS 568, *8-11 (Feb. 16,

1995); Clifton v. Jeep Corp., 6th Dist. Lucas No. L-90-081, 1991 Ohio App. LEXIS 494,

*4 (Feb. 8, 1991); McCahan v. Whirlpool Corp., 3rd Dist. Hancock No. 5-85-11, 1986

Ohio App. LEXIS 8185, *6-7 (Aug. 29, 1986).

       {¶11}   After reviewing these cases, we agree with Witschger that they are

factually distinguishable. Here, Witschger pursued one remedy: a right to participate in

the workers’ compensation fund against a single employer for his May 5, 2008 shoulder

injury. See R.C. 4123.01 (providing for the allowance of an injured workers’ claim

against a single employer). When DuPont defended Witschger’s claim for benefits on

the basis that it was not his employer, Witschger filed a second claim against Troy

Electric. He was seeking the same remedy in each claim, the right to participate in the

workers’ compensation system, just against two different parties. Thus, under Ohio law

we cannot conclude that the election of remedies barred Witschger’s claim against

DuPont.

                               Collateral Estoppel Applies

       {¶12}   We hold, however, that the grant of summary judgment to DuPont was

appropriate on a separate basis. In the cases cited by DuPont, the appellate courts held

that, in addition to be being barred by the doctrine of election of remedies, the workers’




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claims for compensation were also barred by the doctrine of collateral estoppel.          See

Childers at *9; Clifton at *4; McCahan at *6-7.

       {¶13}    Collateral estoppel precludes the relitigation, i.e. a separate litigation, of

an earlier issue that has been “actually and necessarily litigated and determined in a

prior action which was based on a different cause of action.” Goodson v. McDonough

Power Equip. Inc., 2 Ohio St.3d 193, 443 N.E.2d 978 (1983).

       {¶14}    Collateral estoppel applies when (1) the party against whom estoppel is

sought was a party or in privity with a party to the prior action; (2) there was a final

judgment on the merits in the case after a full and fair opportunity to litigate the issue;

(3) the issue was admitted or actually tried and decided and necessary to that final

judgment; and (4) the issue decided in the prior action is identical to the issue in the

pending suit. Mitchell, 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, at ¶ 14.

Issues are identical where they rest upon the same facts and are supported by the same

proof. Monahan v. Eagle Pichers Industries, Inc., 21 Ohio App.3d 179, 181, 486 N.E.2d

1165 (1st Dist.1984).

       {¶15}    Witschger was a party to both workers’ compensation claims.

Witschger’s claim against Troy Electric has been litigated to a final judgment from which

no appeal has been taken. See Scott v. East Cleveland, 16 Ohio App.3d 429, 431, 476

N.E.2d 710 (8th Dist.1984) (holding that final determinations in the context of collateral

estoppel include “quasi-judicial decisions made by administrative agencies from which

no appeal has been taken”). The only way that Witschger could obtain benefits under

the workers’ compensation system against DuPont was to show that DuPont was his

employer at the time of his injury.

       {¶16}    The Industrial Commission, however, has already determined that Troy

Electric was his employer at the time of his injury and has granted Witschger the right to



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                      OHIO FIRST DISTRICT COURT OF APPEALS



participate in the system as Troy Electric’s employee. Thus, the doctrine of collateral

estoppel precludes Witschger from “relitigating” the issue of the identity of his employer.

Consequently, DuPont was entitled to summary judgment on this basis. We overrule

Witschger’s sole assignment of error and affirm the judgment of the trial court.

                                                                     Judgment affirmed.

HENDON, P.J, and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry this date.




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