[Cite as Manning v. FCA US, L.L.C., 2020-Ohio-706.]




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


Gary D. Manning                                       Court of Appeals No. L-19-1144

        Appellant                                     Trial Court No. CI0201802712

v.

FCA US, LLC and Sarah D. Morrison,
Administrator, Bureau of Workers’
Compensation                                          DECISION AND JUDGMENT

        Appellee                                      Decided: February 28, 2020

                                               *****

        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”).




2.
        {¶ 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 same




1
    The SHO stated Memo S11 provided:

               If there is evidence on file or presented at hearing to support the
        theories of direct causation, aggravation (date of injury or disability prior to
        August 25, 2006)/substantial aggravation (date of injury or disability on or
        after August 25, 2006), a request to allow a condition in a claim is to be
        broadly construed to cover either theory of causation (i.e. direct
        aggravation/substantial aggravation). The Hearing Officer shall address the
        origin of the condition under both theories of causation without referring
        the claim back to the prior hearing level or the Bureau of Workers’
        Compensation.

        Memo S11 now provides:

               If there is evidence on file or presented at hearing to support the
        theories of direct causation, aggravation (date of injury or disability prior to
        August 25, 2006)/substantial aggravation (date of injury or disability on or
        after August 25, 2006), or flow-through, a request to allow a condition in a
        claim is to be broadly construed to cover those theories of causation. The
        hearing officer shall address the origin of the condition under those alleged
        theories of causation without referring the claim back to the prior hearing
        level or the Bureau of Workers’ Compensation. Where a new theory, not
        formerly requested, is raised at hearing or where new evidence regarding an
        alternative theory of causation is submitted by any party, hearing officers
        and/or hearing administrators shall ensure that all parties are given adequate
        opportunity to obtain evidence in support of their position by continuing the
        hearing for a period of at least 30 days, unless the parties agree that less
        time is sufficient for obtaining the necessary evidence. The hearing officers
        and/or hearing administrators shall state in their order or compliance letter
        the period of time allotted to obtain the necessary evidence.
        NOTE: Ohio Adm.Code 4121-3-09(A)(1)(b).




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2016 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 related




4.
to 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 claim




5.
for 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.




6.
       {¶ 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 the




7.
extent 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 be additionally allowed “on a flow-through basis” for a disc

protrusion, disc herniation, and central canal stenosis at L3-L4, which was granted.

Therefore, a challenge was made to whether an additional condition could be added to the

claim pursuant to the continuing jurisdiction of the IC, not whether the IC abused its

discretion in considering the motion. Therefore, an appeal to the trial court was the

appropriate review process. Accordingly, we find appellant’s second assignment of error

not well-taken.

       {¶ 17} Having found this appeal is properly before us, we now address the merits

of appellant’s first assignment of error. In his first assignment of error, appellant argues




8.
the trial court erred by applying the doctrine of res judicata because the hearing officers

determining the first motion never addressed a flow-through theory of causation.

Manning asserts the issues presented in the two motions were substantially different

because of the different theories of causation specifically noted by the SHO.

       {¶ 18} On appeal, we review both the application of the doctrine of res judicata

and the granting of summary judgment de novo. Holbrook, 10th Dist. Franklin No.

14AP-507, 2015-Ohio-2354, at ¶ 13 (res judicata); City of Dayton v. State, 2017-Ohio-

6909, 87 N.E.3d 176, ¶ 12 (summary judgment). “Res judicata” incorporates both the

concepts of “claim preclusion (historically called estoppel by judgment in Ohio) and

issue preclusion (traditionally known as collateral estoppel).” Grava v. Parkman Twp.,

73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). The doctrine requires that a party must

“present every ground for relief in the first action, or be forever barred from asserting it.”

Id. at 382, quoting Rogers v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).

See also Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178

(1990). Accord Brown v. Dayton, 89 Ohio St.3d 245, 248, 730 N.E.2d 958 (2000)

(“[w]hether the original claim explored all the possible theories of relief is not

relevant.”).

       {¶ 19} Generally, the doctrine of res judicata applies to administrative proceedings

before the IC. Tantarelli v. Decapua Ents., Inc., 156 Ohio St.3d 258, 2019-Ohio-517,

125 N.E.3d 850, ¶ 14. In a workers’ compensation action, a party asserting that res

judicata bars an action must establish that: the claimant has asserted a second “identical




9.
workers’ compensation claim[]” which “the parties * * * had ample opportunity to

litigate” in a prior proceeding; the issue was “conclusively decided in a valid, final

judgment on the merits,” and no appeal was taken from the first decision. Marinkovic v.

Diversified Inventory Solution, Inc., 147 Ohio App.3d 497, 2002-Ohio-453, 771 N.E.2d

291, ¶ 8 (9th Dist.), citing State ex rel. Kroger Co. v. Indus. Comm. of Ohio, 80 Ohio

St.3d 649, 687 N.E.2d 768 (1998) (other citations omitted).

       {¶ 20} However, res judicata does not bar consideration of an additional flow-

through or residual injury because it does not “arise from the same nucleus of operative

facts” as the initial claim. Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830

N.E.2d 1155, ¶ 10; Jacobs v. Teledyne, Inc., 39 Ohio St.3d 168, 171, 529 N.E.2d 1255

(1988), quoting State ex rel. Westchester Estates, Inc., 61 Ohio St.2d 42, 45, 399 N.E.2d

81 (1980) (the doctrine of res judicata will not bar litigation when “a change in the facts

* * * raises a new material issue”). Furthermore, res judicata does not bar the IC from

exercising its continuing jurisdiction under R.C. 4123.52 because the General Assembly

specifically provided that the IC can modify its prior final order under one of the specific

circumstances permitted under the statute. Tantarelli.

       {¶ 21} Manning argues our holding in Brown v. Sheller Globe City Auto Stamping

Co., 6th Dist. Lucas No. L-98-1234, 1998 WL 880236 (Dec. 18, 1998) is not directly on

point. The Brown case dealt with two motions to reactivate a claim so the facts in that

case are distinguishable. However, other cases have addressed the identical issue

presented in this case and hold a second motion for allowance of an additional claim is




10.
barred under the doctrine of res judicata where the claimant failed to appeal from the

denial of the first motion asserting the same condition but a different theory of causation.

Henderson v. Canton City Schools, 5th Dist. Stark No. 2018CA00073, 2019-Ohio-610,

¶ 21-28; Holbrook, 10th Dist. Franklin No. 14AP-507, 2015-Ohio-2354, at ¶ 29-31;

Robinson v. AT&T Network Systems, 10th Dist. Franklin No. 02AP-807, 2003-Ohio-

1513, ¶ 17-18; Kirkwood, 9th Dist. Medina No. 1837, 1990 WL 34842, at *2. The same

issue is presented in both motions regardless of the theories of causation—whether the

subsequent injury is related to the original industrial injury. Compare Starkey v. Builders

FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267,

¶ 14-18 and Ward at ¶ 14 (which hold that a new theory of causation can be raised on

appeal because the issue of whether the condition should be allowed is the same).

       {¶ 22} Manning argues, however, that this case is distinguishable because the IC

specifically limited its rulings as to each motion based on the different theories of

causation pursuant to IC Memo S11. At the time of the IC rulings in this case, the memo

stated: “If there is evidence * * * to support the theories of direct causation, aggravation,

* * * substantial aggravation, a request to allow a condition in a claim is to be broadly

construed to cover either theory of causation. The Hearing Officer shall address the

origin of the condition under both theories of causation without referring the claim back

to the prior hearing level or the Bureau of Workers’ Compensation.” This memo has

been amended to cover the flow-through theory of causation as well.




11.
       {¶ 23} We find the purpose of this directive is to have a hearing officer consider

any theory of causation when it is raised at any stage of the administrative proceedings

rather than remanding the motion back to the prior hearing level or BWC. The memo has

no bearing on the issue of whether the doctrine of res judicata requires that all theories of

causation must be presented in a single amended allowance claim.

       {¶ 24} We conclude, therefore, that the trial court properly found res judicata

would bar Manning’s second motion requesting the IC to modify his claim to add an

injury on a flow-through/residual basis after the IC had already denied a prior motion to

amend the claim regarding the same injury but based on theories of direct and proximate

or substantial aggravation basis. Manning’s first assignment of error is not well-taken.

       {¶ 25} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




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




12.
                                                              Manning v. FCA US, LLC
                                                              C.A. No. L-19-1144




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Christine E. Mayle, 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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