[Cite as Miller v. Community Health Partners, 2013-Ohio-1935.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

LYNN MILLER                                               C.A. No.     12CA010165

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
COMMUNITY HEALTH PARTNERS, et al.                         COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
        Appellants                                        CASE No.   11CV171377

                                DECISION AND JOURNAL ENTRY

Dated: May 13, 2013



        MOORE, Judge.

        {¶1}    Defendant-Appellant, Community Health Partners (or “CHP”), appeals from the

December 29, 2011 judgment entry of the Lorain County Court of Common Pleas. We reverse.

                                                     I.

        {¶2}    This matter stems from a work related injury suffered by Plaintiff-Appellee, Linda

Miller, during her employment with Community Health Partners. Ms. Miller, a registered nurse,

claims that she immediately felt lower back pain when she caught a patient who was falling out

of a wheelchair. When she filed a workers’ compensation claim for temporary total disability,

the Industrial Commission ultimately allowed her claim for injuries related to her back.

        {¶3}    Pursuant to R.C. 4123.512, Community Health Partners appealed the Industrial

Commission’s order to the court of common pleas.                 Ms. Miller then filed the requisite

corresponding complaint asking that her claim for injury to her back be recognized as a

compensable claim. While this appeal was pending in the common pleas court, Ms. Miller filed
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a motion with the Industrial Commission for an additional allowance of a psychological disorder

relating to the back injury. The Industrial Commission recognized this additional allowance, and

ordered temporary total disability compensation to be paid for the psychological condition.

Although Community Health Partners appealed this order to the Industrial Commission, after the

Commission allowed the condition, it did not further appeal the matter to the court of common

pleas.

         {¶4}   After the Industrial Commission issued its order recognizing the additional

psychological condition, Ms. Miller voluntarily dismissed her complaint regarding the back

injury. Ms. Miller then re-filed her complaint, within one year of dismissal, asking that a jury

find that the claim for her back injury is compensable under workers’ compensation law.

         {¶5}   Community Health Partners filed an answer admitting that Ms. Miller suffered a

work-related injury, but denying the nature and extent of the injury.

         {¶6}   Ms. Miller then filed a motion for summary judgment arguing that Community

Health Partners is barred by the doctrine of res judicata and/or collateral estoppel from re-

litigating the issue of whether she is entitled to workers’ compensation for her 2006 back injury.

She argued that Community Health Partners previously litigated this issue to a valid, final

judgment when it failed to further appeal the Industrial Commission’s order which allowed the

additional psychological condition predicated upon her 2006 back injury. Ms. Miller reasoned

that, although CHP denied that she suffered a compensable back injury throughout the previous

proceedings before the Industrial Commission, it failed to appeal the allowed psychological

condition “based upon and stemming from the same back injury.” Further, Ms. Miller argued

that, in its answer, CHP admitted the allegations regarding her back injury.
                                                3


       {¶7}     Community Health Partners filed a memorandum in opposition to Ms. Miller’s

motion in which it argued that it cannot be barred by the doctrine of res judicata from defending

itself against Ms. Miller’s claims in an employer initiated appeal. Further, CHP asserted that

collateral estoppel is not appropriate because the issue of whether Ms. Miller suffered a

compensable back injury was not actually and directly litigated in her subsequent claim for an

additional psychological allowance. Finally, CHP maintained that it never admitted that Ms.

Miller’s work-related injury was a compensable claim.

       {¶8}    In its order granting Ms. Miller’s motion for summary judgment, the trial court

stated as follows:

       This Court agrees with [Ms. Miller’s] characterization of the facts. The
       [Industrial Commission’s] order regarding [Ms. Miller’s] psychological
       allowances is now final[,] and implicit therein is that the underlying back injury is
       valid and compensable, therefore the appeal based upon the allowances for the
       underlying back injury cannot be considered separately. According to the
       doctrine of res judicata, where a valid, final judgment is rendered upon the merits,
       all subsequent actions based upon any claim arising out of the same transaction or
       occurrence that was the subject matter of the previous action are barred. This is
       [the] case here in that res judicata bars [] CHP from relitigating the issue of [Ms.
       Miller’s] back injury that already had come to a valid, final ruling on the merits in
       the order by the [Industrial Commission] regarding [Ms. Miller’s] psychological
       allowance. By failing to exercise their right to appeal that decision, [] CHP has
       accepted that ruling and the implications thereof as final and must accept the
       consequences of that procedural decision.

(Emphasis sic.) (Citations omitted.)

       {¶9}    Community Health Partners timely appealed, and raises two assignments of error

for our consideration.

                                                II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
       [MS. MILLER] MAY RAISE THE DEFENSE OF CLAIM PRECLUSION RES
       JUDICATA.
                                                4


       {¶10} In its first assignment of error, CHP argues that only a defending party in an

action can assert claim preclusion res judicata, and, as such, the trial court’s decision has “no

legal basis” and must be reversed as a matter of law.

       {¶11} An appellate court reviews an award of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). It applies the same standard as the trial court,

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7,

12 (6th Dist.1983). Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in the favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record

that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,

292-93 (1996). Specifically, the moving party must support its motion by pointing to some

evidence in the record indicated in Civ.R. 56(C). Id. Once this burden is satisfied, the non-

moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at

293; Civ.R. 56(E).

       {¶12} Civ.R. 56(C) provides that, in reviewing a motion for summary judgment, the

court should review “the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact[.]” Further, when affidavits

are submitted in support of or in opposition to motions for summary judgment, Civ.R. 56(E)

provides that the affidavits “shall be made on personal knowledge, shall set forth such facts as
                                                  5


would be admissible in evidence, and shall show affirmatively that the affiant is competent to

testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of

papers referred to in an affidavit shall be attached to or served with the affidavit.”

       {¶13} It is well-settled that res judicata is an affirmative defense. Business Data Sys.,

Inc., v. Gourmet Cafe Corp., 9th Dist. No. 23808, 2008-Ohio-409, ¶ 13. Further, “[t]he doctrine

of res judicata includes the concepts of issue preclusion (collateral estoppel) and claim

preclusion.” Brunswick Hills Twp. Bd. Of Trustees v. Ludrosky, 2012-Ohio-2556, ¶ 9 (9th Dist.)

With regard to claim preclusion, this Court has stated that “[t]he doctrine of res judicata provides

that ‘[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon

any claim arising out of the transaction or occurrence that was the subject matter of the previous

action.”’ Perrine v. Patterson, 9th Dist. No. 22993, 2006-Ohio-2559, ¶ 22, quoting Grava v.

Parkman Twp., 73 Ohio St.3d 379, (1995) syllabus. “Further, application of res judicata requires

that the identical cause of action shall have been previously adjudicated in a proceeding with the

same parties or their privities in the first action, in which the party against whom the doctrine is

sought to be imposed shall have had a full and fair opportunity to litigate the claim.” Fraternal

Order of Police, Akron Lodge No. 7 v. Akron, 9th Dist. No. 23332, 2007-Ohio-958, ¶ 11, citing

Brown v. Dayton, 89 Ohio St.3d 245, 247 (2000); Business Data Systems, Inc. v. Figetakis, 9th

Dist. No. 22783, 2006-Ohio-1036, ¶ 11.

       {¶14} Additionally, “[i]n Ohio, res judicata embraces the doctrine of collateral

estoppel.” Ohio Cas. Ins. Co. v. Hamel, 3 Ohio App.3d 278, 279 (1st Dist.1981). The doctrine of

collateral estoppel states that “if an issue of fact or law actually is litigated and determined by a

valid and final judgment, such determination being essential to that judgment, the determination

is conclusive in a subsequent action between the parties, whether on the same or a different
                                                  6


claim.” Hicks v. De La Cruz, 52 Ohio St.2d 71, 74 (1977). “Collateral estoppel precludes the

relitigation of an issue that has been ‘actually and necessarily litigated and determined in a prior

action.’” Krahn v. Kinney, 43 Ohio St.3d 103, 107 (1989), quoting Goodson v. McDonough

Power Equip., Inc., 2 Ohio St.3d 193, 195 (1983).

       {¶15} Here, although the parties discussed both concepts of res judicata below, the trial

court appears to have relied upon res judicata in its claim preclusion form. The trial court cited

Grava and concluded that Community Health Partners should be precluded from relitigating

whether Ms. Miller’s 2006 back injury is a compensable claim under workers’ compensation law

because “a valid, final ruling on the merits” already existed as to the back injury through the

order allowing the psychological condition. In Starkey v. Builders Firstsource Ohio Valley,

L.L.C., 195 Ohio App.3d 179, 2011-Ohio-4220, ¶ 15 (1st Dist.), the First District Court of

Appeals addressed whether it is proper for a claimant to assert the doctrine of res judicata against

an employer in an employer initiated R.C. 4123.512 appeal, stating:

       The Ohio Supreme Court has consistently [held] that in an employer-initiated
       R.C. 4123.512 appeal, it is the claimant, not the employer, who presents a claim
       for relief. Res judicata operates to preclude a party in a previous lawsuit from
       relitigating a claim in a subsequent lawsuit. Under the doctrine, a valid final
       judgment rendered upon the merits bars all subsequent actions based upon any
       claim arising out of the transaction or occurrence that was the subject matter of
       the previous action.

(Internal citations and quotations omitted.) Id. See also Robinson v. B.O.C. Group, Gen. Motors

Corp., 81 Ohio St.3d 361, 365-66 (1998). We agree with our sister court and conclude that, in

the present matter, the doctrine of res judicata should not have been applied against Community

Health Partners. In filing its R.C. 4123.512 appeal, CHP was not bringing a claim, but rather

defending against Ms. Miller’s claim. See Starkey at ¶ 15. “‘The doctrine of res judicata

requires a plaintiff to present every ground for relief in the first action, or be forever barred from
                                                 7


asserting it.’” (Emphasis added.) Brown v. Dayton, 89 Ohio St.3d 245, 248 (2000), quoting Natl.

Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990). Further, in an employer-initiated

appeal, brought pursuant to R.C. 4123.512, the claimant is considered the plaintiff.            See

Robinson at 364-370. Finally, there is no evidence in the record that the issue of whether Ms.

Miller actually suffered a work-related, compensable back injury was ever actually and

necessarily litigated in the subsequent action allowing an additional psychological condition.

See Krahn at 107.

       {¶16} We note that even if the trial court would have relied upon res judicata in its issue

preclusion form (collateral estoppel) to grant summary judgment in favor of Ms. Miller, this

Court’s decision would remain the same. In Brunswick, 2012-Ohio-2556, at ¶ 11, we concluded

that “issue preclusion can only be applied against parties who have had a prior full and fair

opportunity to litigate their claims.” (Internal quotations and citations omitted.) As stated above,

there is no evidence that CHP was afforded a full and fair opportunity to litigate whether Ms.

Miller suffered a compensable back injury, and, as such, it should not be barred by the offensive

use of collateral estoppel.

       {¶17} Therefore, based upon the record before us, we conclude that the trial court erred

as a matter of law in granting Ms. Miller’s motion for summary judgment on the basis of res

judicata.

       {¶18} CHP’s first assignment of error is sustained.

                                    ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
       RES JUDICATA BARS A DEFENDANT-EMPLOYER’S TIMELY FILED
       NOTICE OF APPEAL FOR THE PHYSICAL ALLOWANCES OF A
       WORKERS’ COMPENSATION CLAIM WHEN [] [CHP] DID NOT FILE A
       NOTICE OF APPEAL IN A SUBSEQUENT CLAIM FOR A
       PYSCHOLOGICAL ALLOWANCE.
                                                 8


       {¶19} Due to our resolution of Community Health Partner’s first assignment of error, its

second assignment of error is moot, and, therefore, we decline to address it. See App.R.

12(A)(1)(c).

                                                III.

       {¶20} CHP’s first assignment of error is sustained, and its second assignment of error is

moot. The judgment of Lorain County Court of Common Pleas is reversed, and the matter is

remanded for further proceedings consistent with this decision.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                        9




WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

THOMAS R. WYATT and JERRY P. CLINE, Attorneys at Law, for Appellant.

CHRISTOPHER G. WINCEK and DARYL GAGLIARDI, Attorneys at Law, for Appellee.
