         [Cite as Ellis v. Buehrer, 2017-Ohio-5516.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




DAVID ELLIS, deceased,                             :   APPEAL NO. C-160497
DEBORAH ELLIS, widow-claimant,                         TRIAL NO. A-1501135
                                                   :
        Plaintiff-Appellant,
                                                   :      O P I N I O N.
  vs.
                           :
STEPHEN BUEHRER,
ADMINISTRATOR, OHIO BUREAU :
OF WORKERS’ COMPENSATION,
                           :
     Defendant-Appellee,
                           :
  and
                           :
EVANS TRANSPORT, INC.,
                           :
    Defendant.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 28, 2017

Fox & Fox Co., L.P.A., Bernard C. Fox and M. Christopher Kneflin, for Plaintiff-
Appellant,

Jose A. Martinez, Assistant Ohio Attorney General, for Defendant-Appellee Stephen
Buehrer.
                      OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

      {¶1}    The unexpected death of one’s spouse is an incredible loss.          In

reviewing this appeal, we discharge our duty without passion or prejudice,

recognizing that this case originates from the untimely death of David Ellis and his

widow’s workers’ compensation claim for death benefits.

      {¶2}    Plaintiff-appellant David Ellis, decedent, Deborah Ellis, widow-

claimant, (“Ellis”) appeals the common pleas court’s grant of summary judgment to

Stephen Buehrer, Administrator of the Ohio Bureau of Workers’ Compensation,

(“Administrator”) and Evans Transport, Inc., (“Evans Transport”) on appellant’s

claim for death benefits. Appellant asserts that the trial court erred by granting the

defendants’ motions for summary judgment based upon collateral estoppel, by

failing to weigh and construe the evidence in her favor, and by failing to treat the

R.C. 313.19 proceeding as a special statutory proceeding. Because we find no error in

the trial court’s determinations, we affirm its judgment.

                                    Background

      {¶3}    David Ellis (“David”) fell ten feet from his dump truck on July 3, 2011,

and received emergency treatment. The next day, he began vomiting. On July 5, he

went to his primary care physician, who prescribed pain and anti-nausea medication.

On the morning of July 8, David’s condition rapidly deteriorated. His wife Deborah

Ellis (“Deborah”) called 911, and by the time the emergency squad arrived, David was

unresponsive. The squad could not resuscitate him and they pronounced him dead

at his home around 9:30 a.m.

      {¶4}    Prior to his death, David had filed a worker’s compensation claim

numbered 11-335091. Upon his death, Deborah applied for death benefits under the

same claim number pursuant to R.C. 4123.59. The district hearing officer and the



                                           2
                      OHIO FIRST DISTRICT COURT OF APPEALS

staff industrial officer of the Industrial Commission denied Deborah’s claims in 2012.

She appealed, and the Industrial Commission denied her appeal and affirmed the

decision of the staff hearing officer.    Deborah filed a notice of appeal with the

Hamilton County Court of Common Pleas in November 2012, but dismissed the

appeal in 2014 with a reservation to refile.

      {¶5}    Concurrent to filing her death-benefits claim, Deborah filed a

challenge to the coroner’s cause of death pursuant to R.C. 313.19. She requested that

the Clermont County Court of Common Pleas direct Coroner Dr. Brian Treon to

change his decision as to the cause of David’s death and to order a new death

certificate, supplemental medical certificate, and coroner’s report. Deborah alleged

that the facts and law did not support Treon’s determination of David’s cause of

death. The court found, based upon the evidence presented, that Deborah had not

rebutted the presumption that Treon’s determinations were correct, and held that

Treon’s findings would “remain the legally accepted manner and mode in which such

death occurred, and the legally accepted cause of death.” Deborah appealed, but the

Twelfth District Court of Appeals affirmed the trial court’s judgment.

      {¶6}    Deborah then refiled her appeal of the denial of death benefits in the

Hamilton County Court of Common Pleas, attempting to obtain a determination that

David’s workplace injury contributed to his cause of death. Evans Transport and the

Administrator moved for summary judgment, arguing that they were entitled to

judgment as a matter of law because collateral estoppel prevented Deborah from re-

litigating the issue of the cause of David’s death. The trial court granted the motions.

                              Assignments of Error

      {¶7}    Appellant’s first assignment of error alleges that the trial court erred in

granting the defendants’ motions for summary judgment based upon collateral



                                           3
                      OHIO FIRST DISTRICT COURT OF APPEALS

estoppel. Appellant’s second assignment of error alleges that the trial court erred in

failing to treat the R.C. 313.19 proceeding as a special statutory proceeding.

Appellant’s third assignment of error alleges that the trial court erred by failing to

weigh and construe the evidence in her favor. Because appellant’s first and third

assignments of error are intertwined, we consider them together.

                               Standard of Review

      {¶8}    We review grants of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is

appropriate where (1) there is no genuine issue of material fact, (2) the moving party

is entitled to judgment as a matter of law, and (3) the evidence, when viewed in favor

of the nonmoving party, permits only one reasonable conclusion and that conclusion

is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Howard v. Ferreri, 70

Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

      The Trial Court did not Err in Granting Summary Judgment

      {¶9}    In order for Ellis to prevail on the R.C. 4123.59 claim for death

benefits, Ellis must demonstrate that David had a preexisting condition and that his

workplace injury, as a direct and proximate result, accelerated his death by a

substantial period of time. See McKee v. Elec. Auto-Lite Co., 168 Ohio St. 77, 151

N.E.2d 540 (1958), syllabus. The Administrator claims that the issues in Ellis’s R.C.

4123.59 action were addressed in Ellis’s R.C. 313.19 proceeding against Dr. Treon,

and therefore, collateral estoppel applies.      Ellis argues that the R.C. 313.19

proceeding was only challenging David’s physical cause of death, and that in this

action, she is challenging whether David’s death, caused by hypertensive

cardiovascular disease, was a direct and proximate result of his injury.

     {¶10}    Collateral estoppel applies when



                                           4
                        OHIO FIRST DISTRICT COURT OF APPEALS

             (1) the party against whom estoppel is sought was a party * * * to

             the prior action; (2) there was a final judgment on the merits in the

             previous action after a full and fair opportunity to litigate the fact

             or issue; (3) the fact or issue was admitted or actually tried and

             decided and was necessary to the final judgment; and (4) the fact

             or issue was identical to the issue involved in the new action.

Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio App.3d 365, 2008-Ohio-

3697, 902 N.E.2d 37, ¶ 14 (1st Dist.).

     {¶11}      R.C. 313.19 provides that the cause, manner, and mode of death

incorporated in the coroner’s verdict and in the death certificate “shall be the legally

accepted manner and mode in which such death occurred, and the legally accepted

cause of death[.]” The coroner’s determination of the manner, mode, and cause of

the decedent’s death creates a nonbinding, rebuttable presumption concerning such

facts in the absence of competent, credible evidence to the contrary.           Vargo v.

Travelers Ins. Co., 34 Ohio St.3d 27, 516 N.E.2d 226 (1987).

     {¶12}      A challenge under R.C. 313.19 is not only to the cause of death, but also

to the mode and manner of death. The Supreme Court of Ohio has held that such a

challenge is not limited to the physical and physiological mechanisms, because to so

hold would “imply that R.C. 313.12’s requirement to relate facts ‘concerning the time,

place, manner, and circumstances of the death’ is essentially meaningless, as is the

coroner’s inquiry pursuant to R.C. 313.17 as to who caused the death, together with

all attendant circumstances.” See State ex rel. Blair v. Balraj, 69 Ohio St.3d 310,

312, 631 N.E.2d 1044 (1994).

     {¶13}      Here, the Clermont County trial court considered 16 joint trial exhibits,

including the depositions of Dr. Treon, Dr. Jennifer Schott, and Dr. Matthew Burton,




                                             5
                      OHIO FIRST DISTRICT COURT OF APPEALS

and heard oral argument on the matter. In Dr. Burton’s January 7, 2014 deposition,

he opined that David’s fall from the dump truck on July 3, 2011, was the direct and

proximate cause of his death on July 8, 2011: “[David] sustained injuries as a result

of the fall. He required pain medication which led to adverse reaction of chronic

vomiting and he sustained a cardiac [arrhythmia] and sudden death as a result.” Dr.

Burton also asserted that an electrolyte disturbance and low potassium levels could

have resulted in David’s cardiac arrhythmia, but recognized that the coroner had not

conducted laboratory tests at the time of death.

     {¶14}    The Clermont County court stated that Dr. Burton’s testimony was

speculative, and determined that it “did not qualify as the type of ‘competent,

credible evidence’ needed to direct the coroner to change the findings regarding

David Ellis’ death.” Ellis v. Treon, Clermont C.P. No. 2013CVH00579 (Feb. 10,

2014). The Twelfth District Court of Appeals affirmed this judgment. Ellis v. Treon,

12th Dist. Clermont No. CA2014-03-021, 2014-Ohio-5010.

     {¶15}    Furthermore, in support of its motion for summary judgment, Evans

Transport presented Ellis’s admissions, which included “a true and accurate copy” of

the supplementary medical certification to David’s death certificate.             This

certification instructed Dr. Treon to “enter the disease, injuries, or complications

that caused the death” and to list the immediate cause of death, conditions that led to

the immediate cause of death, and underlying causes that initiated events resulting

in death. Dr. Treon listed hypertensive cardiovascular disease as the immediate

cause of death, did not list any contributing factors, and listed “natural” for the

manner of death.

     {¶16}    After reviewing the evidence in a light most favorable to Ellis, we

conclude that the trial court did not err in granting summary judgment to Evans




                                          6
                       OHIO FIRST DISTRICT COURT OF APPEALS

Transport and the Administrator. The evidence demonstrates that the elements of

collateral estoppel were met: (1) Ellis was a party to the R.C. 313.19 action; (2) the

Clermont County court issued a final judgment on the merits after Ellis was given a

full and fair opportunity to litigate the cause, manner, and mode of David’s death; (3)

the cause, manner, and mode of David’s death was actually tried and decided and

was necessary to the final judgment; and (4) the facts and issues are identical to the

issue of whether the work injury was the direct and proximate cause of David’s death.

Therefore, the trial court did not err in granting summary judgment in favor of Evans

Transport and the Administrator on the basis of collateral estoppel. We overrule

Ellis’s first and third assignments of error.

                           Collateral Estoppel Applies

     {¶17}     In her second assignment of error, Ellis argues that the trial court

erred in failing to treat the R.C. 313.19 proceeding as a special statutory proceeding.

An R.C. 313.19 challenge is a special statutory civil proceeding. Perez v. Cleveland,

78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997).          However, the Rules of Civil

Procedure, including Civ.R. 56, are not clearly inapplicable to R.C. 313.19. See

LeFever v. Licking Cty. Coroner’s Office, 5th Dist. Licking No. 06-CA-13, 2006-

Ohio-6795, ¶ 32 (Edwards, J., concurring in part and dissenting in part).

     {¶18}     Ellis argues that, because the R.C. 313.19 proceeding is a special

statutory proceeding, the only issue before the Clermont County court was “whether

it will direct the coroner to change the cause, manner and mode of death,” while the

only issue before the Hamilton County trial court was “the proximate cause between

[David’s] death by hypertensive cardiac disease and [his] work injury.” Ellis points

to LeFever in support of this argument. In that case, a widow and her daughter

sought to change her husband’s death certificate. LeFever at ¶ 2. The trial court



                                            7
                        OHIO FIRST DISTRICT COURT OF APPEALS

granted the appellees’ motion for summary judgment based on res judicata. Id. at ¶

18. The Fifth District reversed because “the trial court was merely speculating as to

appellants’ intended use of a changed coroner’s verdict,” and such speculation “is not

grounds for dismissal on the basis of res judicata.” Id. at ¶ 19.

     {¶19}    It is unclear how Ellis’s citation to LeFever relates to the argument

about different claims/issues being before the two trial courts in this case. In citing

to LeFever, Ellis appears to argue that the Hamilton County trial court’s ruling was

also based on improper speculation as to why Deborah was seeking the change in

David’s cause of death. But LeFever is distinguishable because there, the trial court

had granted summary judgment based on res judicata (claim preclusion) and not

collateral estoppel (issue preclusion).     LeFever does not stand for the general

proposition that speculating as to a party’s motives is improper.

     {¶20}    Regardless, Deborah’s purpose for seeking the change to the coroner’s

report is irrelevant.    The inquiry is whether, in the course of the R.C. 313.19

proceeding, the issue and facts of the cause of death and the proximate cause of

death were fully and fairly litigated. The trial court correctly determined that the

issues as to cause, manner, and mode of death had already been litigated and that

Ellis’s cause of action was precluded by collateral estoppel. We therefore must

overrule Ellis’s second assignment of error.

                                     Conclusion

     {¶21}    Because we hold that collateral estoppel prohibited Ellis from re-

litigating the cause of David’s death, we find no error in the trial court’s grant of

summary judgment to the defendants. The trial court’s judgment is affirmed.

                                                                    Judgment affirmed.

DETERS, J., concurs in judgment only.
MILLER, J., concurs separately.


                                            8
                         OHIO FIRST DISTRICT COURT OF APPEALS



MILLER, J., concurring separately.

     {¶22}      I write separately to stress that the resolution of this appeal turns on

the trial court’s proper application of the doctrine of collateral estoppel. In the

Clermont County R.C. 313.19 action, Mrs. Ellis was given a full and fair opportunity

to challenge the rebuttable presumption that the coroner had correctly determined

the cause, manner and mode of her husband’s death. Mrs. Ellis argued that her

husband’s work injury had contributed to her husband’s death, and asked the court

to change Mr. Ellis’s death certificate to this effect. That court decided the issue, and

Mrs. Ellis lost.   Mrs. Ellis challenged that judgment on appeal.          The Twelfth

Appellate District affirmed. Mrs. Ellis now argues that the R.C. 313.19 action did not

decide whether the workplace injury contributed to Mr. Ellis’s death. The trial court

in this case correctly determined that it did. Notably, Mrs. Ellis makes no argument

concerning how differing standards of proof may affect the application of collateral

estoppel to this case.

     {¶23}      Finally, I note the misleading caption of this case. David Ellis died

prior to this case being filed. He was never a party. Mrs. Ellis was the lone plaintiff

and appellant. The case caption should reflect as much.


Please note:

       This court has recorded its own entry this date.




                                           9
