[Cite as Draper v. N. Am. Science Assocs., Inc., 2018-Ohio-2117.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


Crystal E. Draper                                           Court of Appeals No. WD-17-020

        Appellant                                           Trial Court No. 2016CV598

v.

North American Science
Associates, Inc., et al.                                    DECISION AND JUDGMENT

        Appellees                                           Decided: June 1, 2018

                                                  *****

        Marc G. Williams-Young and William R. Menacher,
        for appellant.

        Matthew O. Hutchinson and Eric W. Komuniecki, for
        appellee North American Science Associates, Inc.

        Mike DeWine, Ohio Attorney General, and Anastasia K.
        Hanson, Assistant Attorney General, for appellee
        Administrator, Bureau of Workers’ Compensation.

                                                  *****

        JENSEN, J.

                                             I. Introduction

        {¶ 1} Appellant, Crystal Draper, appeals the judgment of the Wood County Court

of Common Pleas, granting summary judgment in her workers’ compensation appeal to
appellees, North American Science Associates, Inc. (“NAMSA”) and the Administrator

of the Ohio Bureau of Workers’ Compensation (“BWC”).

                             A. Facts and Procedural Background

       {¶ 2} This is not the first time this court has had an occasion to review the trial

court’s dismissal of Draper’s claim for workers’ compensation benefits. Indeed, Draper

has filed three such claims. In the first claim, the matter was denied in the administrative

process. The matter was then appealed to the trial court, where the administrative

decision was affirmed. We then reviewed the trial court’s judgment in Draper v. N. Am.

Science Assocs., 6th Dist. Wood No. WD-16-041, 2017-Ohio-2811. In our decision in

Draper, we summarized the following facts, which are relevant to the present action:

              Draper filed a workers’ compensation claim on April 1, 2013, stating

       her injury as: “checking incubators, picking up jars and pain started

       shooting through hand/wrist area” and the injury was to her “right

       hand/wrist.” Draper’s application further indicated that she was diagnosed

       by T. E. Lieser, M.D. with the condition of “right thumb extensor

       tendonitis” and he indicated the injury was “causally related to the

       industrial injury.”

              Draper’s application was disallowed on April 22, 2013, for

       “TENOSYNOV HAND/WRIST NEC RIGHT WRIST” and

       “TENOSYNOV HAND/WRIST NEC RIGHT THUMB.”




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       {¶ 3} Furthermore, the denial order noted that:

              Medical documentation indicates the mechanism of injury is unclear.

       ER report indicates the claimant actually had been experiencing pain with

       the right wrist after being involved in a car accident on 03-01-13. Dr.

       Lieser, M.D. notes it is clear the current right thumb and wrist complaints

       stem from the 03-01-13 motor vehicle accident injuries.

              Therefore, the commission found Draper “has not met * * * her

       burden of proof.” Draper did not appeal this order. Draper at ¶ 4-5.

       {¶ 4} Meanwhile, on December 17, 2013, Draper filed a second claim for

workers’ compensation benefits, in which she asserted an injury to her hands that

occurred while working for NAMSA as a clean room tech, the same position she

identified in her first claim for benefits. On January 13, 2014, the Administrator of the

BWC disallowed Draper’s second claim for several medical conditions including bilateral

radial styloid tenosynovitis, finding that there was no medical relationship between the

diagnosed condition and the described injury. In the decision disallowing the second

claim, the Administrator referenced its prior disallowance of Draper’s first claim, and

noted that it pertained to the “same/similar conditions wherein the employee was treated

by Thomas Lieser.”

       {¶ 5} Draper challenged the Administrator’s disallowance of her second claim

before a district hearing officer, who heard the matter on March 20, 2014. At the hearing,

Draper requested that her second claim be dismissed. Consequently, the district hearing




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officer issued an order stating, in relevant part: “At the Injured Worker’s request, the

[First Report of Injury] is dismissed. Therefore the Bureau of Workers’ Compensation

order dated 1/13/2014 is vacated.”

       {¶ 6} Approximately four months later, on July 8, 2014, Draper filed a third

workers’ compensation claim describing an injury of “repetitive motion involving both

hands opening between 200 to 400 jars a day.” The type of injury was noted as “bilateral

hands/wrists.” Draper did not specify her occupation or job title in her third claim for

workers’ compensation benefits.

       {¶ 7} Draper’s third claim was disallowed by the Administrator on July 28, 2014.

Draper appealed the Administrator’s order to the district hearing officer, who heard the

matter on October 7, 2014. Following the hearing, the district hearing officer issued a

decision denying Draper’s appeal and finding that “[t]he identical theory of recovery with

regard to the right wrist was presented in [the first claim]. * * * The issue as to wear and

tear activities and injuries to the right wrist is, therefore, barred by the [doctrine] of res

judicata.”

       {¶ 8} The matter then proceeded to a staff hearing officer, who affirmed the

Administrator’s disallowance of Draper’s third claim on November 18, 2014. In the staff

hearing officer’s decision, she found that the denial of Draper’s first claim barred

consideration of the third claim under the doctrine of res judicata. Additionally, the staff

hearing officer determined that the injuries alleged in Draper’s third claim were unrelated

to her work activities with NAMSA after reviewing a doctor’s report in which Draper’s




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injuries were indicated to have pre-dated the third claim. According to the reporting

doctor’s medical opinion, Draper’s injuries were the product of natural deterioration.

Draper appealed the staff hearing officer’s decision to the Ohio Industrial Commission

who, on December 16, 2014, issued its decision denying the appeal.

       {¶ 9} Having no success litigating her third claim in the administrative arena,

Draper appealed the Industrial Commission’s decision to the trial court on February 17,

2015. Approximately nine months later, Draper voluntarily dismissed her appeal under

Civ.R. 41(A)(1)(a).

       {¶ 10} In October 2015, one month before filing the aforementioned dismissal

with the trial court, Draper filed a C86 motion with respect to the first claim seeking to

have the Industrial Commission exercise its continuing jurisdiction over the first claim,

pursuant to R.C. 4123.52. She sought to have the Industrial Commission vacate the

April 22, 2013 order and reconsider her claim on the ground that it contained two clear

mistakes of fact, namely that: (1) the Industrial Commission had disallowed her claim

for a medical condition she had not asserted and did not consider her claim for “right

thumb extensor tendonitis” and (2) Dr. Lieser reviewed the Emergency Center report

related to Draper’s March 1, 2013 automobile accident, a copy of which was not filed in

the instant claim, and which noted on page two that: “patient denies elbow pain, * * *

wrist pain, * * * hand pain, * * * finger pain.” The denial of this motion ultimately led

Draper to appeal to the district hearing officer, the staff hearing officer, the Industrial




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Commission, and the trial court. Draper’s appeal was denied at every stage, causing her

to file her notice of appeal with this court in Draper, supra.

       {¶ 11} On May 12, 2017, we issued our decision in Draper, in which we found

that Draper could have raised the issue of whether an occupational injury had occurred in

a direct appeal, but failed to do so. Therefore, we held that res judicata barred Draper’s

workers’ compensation claim. Draper, 6th Dist. Wood No. WD-16-041, 2017-Ohio-

2811, at ¶ 17.

       {¶ 12} On November 2, 2016, while Draper’s first appeal was pending before this

court, Draper refiled her voluntarily dismissed third claim with the trial court. Two

weeks later, NAMSA filed its motion to dismiss, arguing that Draper’s third claim was

barred by res judicata because it was based on the same injury as her first two claims,

both of which were denied.

       {¶ 13} On December 22, 2016, Draper filed her memorandum in opposition to

NAMSA’s motion to dismiss. In her memorandum, Draper argued that the

Administrator’s denial of her second claim did not trigger res judicata because that

decision was subsequently vacated by the district hearing officer upon Draper’s dismissal

of the second claim. Further, Draper argued that the denial of the first claim did not bar

her third claim because the two claims were based upon different medical conditions that

arose at different times. Specifically, Draper contended that the injury at issue in the first

claim was limited to her right hand and wrist. That injury arose in March 2013 and was

caused by “picking up jars.” The injury at issue in the third claim involved both hands




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and wrists. That injury occurred in early-2014 and was caused by “grasping and

twisting/turning motion with the hands.”

       {¶ 14} On January 30, 2017, the Administrator of the BWC filed a motion for

partial summary judgment, in which it sought summary judgment on the portion of

Draper’s claim that involved her right hand and wrist. In its attached memorandum, the

Administrator advanced the same res judicata arguments that were articulated by

NAMSA in its motion to dismiss.

       {¶ 15} Upon consideration of the foregoing motions, the trial court issued its

decision on March 13, 2017. In its decision, the trial court found that NAMSA’s motion

to dismiss relied upon matters outside the pleadings. Consequently, the trial court

converted the motion to dismiss into a motion for summary judgment. The court then

found that Draper’s third claim was barred by res judicata. In particular, the court found

that Draper’s claimed injury to her right hand and wrist was previously denied without

being appealed. Further, the trial court found that the Administrator’s denial of her

second claim, which included her left hand and wrist, barred her claim for injuries to her

left hand and wrist. In so finding, the trial court rejected Draper’s assertion that the

district hearing officer’s dismissal of her second claim, which included an order vacating

the Administrator’s disallowance of the claim, prevented the application of res judicata.

Having found that Draper’s claims were barred by res judicata, the trial court granted

NAMSA’s motion for summary judgment as well as the Administrator’s motion for

partial summary judgment. Draper’s timely notice of appeal followed.




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                                 B. Assignments of Error

       {¶ 16} On appeal, appellant assigns the following errors for our review:

              I. The trial court erred in granting summary judgment (motion to

       dismiss converted to motion for summary judgment) in favor of appellee

       North American Science Associates, Inc., in finding that res judicata

       applies to bar that portion of appellant’s claim for her left upper extremity

       injury based upon a previously vacated BWC Order and dismissed claim

       application (i.e., a non-existent claim).

              II. The trial court erred in granting summary judgment in favor of

       both appellees in finding that res judicata bars appellant’s 2014 claim for

       her right upper extremity injuries where the 2013 and 2014 claims involve

       distinctly different mechanisms of injury, different dates of injury, and

       different medical conditions.

                                        II. Analysis

       {¶ 17} In her assignments of error, Draper argues that the trial court erred in

granting summary judgment in favor of appellees after finding that her claim was barred

by res judicata.

       {¶ 18} We review an award of summary judgment de novo, applying the same

standards as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127,

129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate




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where (1) no genuine issue of material fact exists, (2) the moving party is entitled to

judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can come to but one conclusion, and that conclusion

is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 19} In this case, the dispositive issue concerns the application of the doctrine of

res judicata. Res judicata bars “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., 16 Ohio St.3d 9, 10, 475 N.E.2d

782 (1985). The doctrine applies to administrative proceedings. Set Products, Inc. v.

Bainbridge Twp. Bd. of Zoning Appeals, 31 Ohio St.3d 260, 510 N.E.2d 373 (1987). For

res judicata to apply, there must exist “an identity of parties and issues in the

proceedings.” Beatrice Foods Co. v. Lindley, 70 Ohio St.2d 29, 35, 434 N.E.2d 727

(1982).

       {¶ 20} Here, Draper filed three claims for workers’ compensation. All of these

claims concern alleged workplace injuries to Draper’s hands and wrists. In the first

claim, Draper complained of an injury to her right hand and wrist and was diagnosed with

right thumb extensor tendonitis. This claim was denied upon the finding that the injury

was caused by a motor vehicle accident and not a workplace-related event. In the second

claim, Draper complained of an injury to both hands and wrists and was diagnosed with

bilateral DeQuervains syndrome. This claim was denied by the Administrator, but was




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dismissed prior to an adjudication on the merits before the district hearing officer, who

vacated the BWC Administrator’s order. In her present claim, Draper complains of a

wear and tear injury to her hands and wrists stemming from her opening of between 200

and 400 jars per day. The record reveals that Draper has been diagnosed with bilateral

DeQuervains tenosynovitis in connection with this claim.

       {¶ 21} In her first assignment of error, Draper contends that the trial court erred in

relying upon the Administrator’s disallowance of her second claim, which was “vacated”

by the district hearing officer prior to an adjudication, as a basis for the denial of her third

claim on res judicata grounds. We agree.

       {¶ 22} The record reveals that Draper was denied benefits by the BWC

Administrator. After the Administrator disallowed Draper’s claim, she sought review

from the district hearing officer. At some point thereafter, and prior to any adjudication

of her second claim before the Administrator, Draper sought to have her First Report of

Injury (“FROI”) dismissed. The district hearing officer then dismissed the FROI without

ruling on its merits. In the order dismissing the FROI, the district hearing officer

indicated that the Administrator’s order was “vacated.” Therefore, Draper’s second

claim, alleging an injury to her “hands” described as “while working fingers were locking

up and couldn’t use my thumb, sharp pain shooting up both arms” was dismissed and not

disallowed. There were no findings entered by the district hearing officer. Since the

second claim was never “actually and necessarily litigated and determined in a prior

action,” it could not be used to bar Draper’s subsequent claim for an industrial injury.




10.
Goodson v. McDonough Power Equipment, Inc., 2 Ohio St.3d 193, 195, 443 N.E.2d 978

(1983).

       {¶ 23} Accordingly, Draper’s first assignment of error is well-taken.

       {¶ 24} In her second assignment of error, Draper asserts that the trial court erred in

finding that the denial of her first claim barred her third claim where the claims involved

distinctly different mechanisms of injury, different dates of injury, and different medical

conditions.

       {¶ 25} As to the application of res judicata on the basis of the denial of Draper’s

first claim, the record demonstrates that Draper assigned different dates to her injuries

and described the injuries using different terms. Appellees argue that the injuries Draper

identifies in her claims are synonymous with one another and are therefore one and the

same. Further, appellees contend that Draper’s job responsibilities have been consistent

throughout these proceedings.

       {¶ 26} Having reviewed the record in a light most favorable to Draper as the

nonmoving party, we find that a question of fact exists as to whether the injuries she

identified in her first claim are the same injuries she identified in her third claim.

According to the record, Draper was diagnosed in her first claim with right thumb

extensor tendonitis allegedly due to the act of picking up jars and checking incubators.

By contrast, Draper’s third claim involved the alleged injury of bilateral DeQuervains

tenosynovitis stemming from opening 200 to 400 jars per day. While medical evidence

may establish that these injuries are one and the same, as posited by appellees, such




11.
evidence does not exist in the record as of yet. Thus, we cannot say that the injuries

alleged in Draper’s first claim are the same injuries she alleges in her third claim, as

required to trigger the application of res judicata. Given this question of fact, we find that

the trial court erred in granting summary judgment to appellees.

       {¶ 27} Accordingly, Draper’s second assignment of error is well-taken.

                                      III. Conclusion

       {¶ 28} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is reversed. Appellees are ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
James D. Jensen, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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