[Cite as Henderson v. Canton City Schools, 2019-Ohio-610.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
ROSALIND D. HENDERSON                               :        Hon. W. Scott Gwin, P.J.
                                                    :        Hon. Craig R. Baldwin, J.
                        Plaintiff-Appellant         :        Hon. Earle E. Wise, J.
                                                    :
-vs-                                                :
                                                    :        Case No. 2018CA00073
CANTON CITY SCHOOLS, ET AL                          :
                                                    :
                  Defendants-Appellees              :        OPINION




CHARACTER OF PROCEEDING:                                Civil appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2017CV01937

JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 February 19, 2019


APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee Canton City Schools

JENNIFER LAWTHER                                        DARRELL MARKIJOHN
27730 Euclid Avenue                                     3521 Whipple Avenue N.W.
Cleveland, OH 44132                                     Canton, OH 44718

For Bureau of Workers’ Compensation
ZENA ELLIOTT
Assistant Attorney General
20 West Federal Street, 3rd Floor
Youngstown, OH 44503
[Cite as Henderson v. Canton City Schools, 2019-Ohio-610.]


Gwin, P.J.

        {¶1}    Appellant appeals the May 16, 2018 judgment entry of the Stark County

Court of Common Pleas granting appellees’ motion for summary judgment.

                                         Facts & Procedural History

        {¶2}    On March 17, 2014, appellant Rosalind Henderson was injured at work.

Appellant’s workers’ compensation claim was allowed for right shoulder sprain and left

shoulder sprain. Appellant filed two separate motions at the administrative level asking

for further allowance of the claim for “partial thickness tear left supraspinatus.”

        {¶3}    In her first motion, filed on September 12, 2014 with the Bureau of Workers’

Compensation (“BWC”), appellant argued the partial thickness tear left supraspinatus was

directly and proximately caused by the March 17, 2014 injury. The district hearing officer

disallowed her claim and the staff hearing officer affirmed the disallowance. The Industrial

Commission (“IC”) refused her appeal on May 28, 2015. On July 23, 2015, appellant filed

her appeal in the Stark County Court of Common Pleas, Case No. 2015 CV 01521

(“Henderson I”). Appellant voluntarily dismissed Henderson I pursuant to Civil Rule 41(A)

on April 4, 2016.

        {¶4}    In her second motion, filed on July 23, 2015 with the BWC, appellant argued

the partial thickness tear left supraspinatus was substantially aggravated by the March

17, 2014 injury. The district hearing officer disallowed her claim and the staff hearing

officer affirmed the disallowance. The IC refused her appeal on November 24, 2015.

While Henderson I was still pending, appellant filed an appeal of the denial of her second

motion with the Stark County Court of Common Pleas, Case No. 2016 CV 00173,

(“Henderson II”) on January 25, 2016. Appellant did not move to consolidate Henderson
Stark County, Case No. 2018CA00073                                                      3

II with Henderson I. Appellant voluntarily dismissed Henderson II pursuant to Civil Rule

41(A) on September 29, 2016.

      {¶5}   Appellant re-filed Henderson I on March 23, 2017.          Appellant re-filed

Henderson II on September 25, 2017. On February 21, 2018, appellant voluntarily

dismissed Henderson I pursuant to Civil Rule 41(A) for the second time.

      {¶6}   Appellee Canton City Schools filed a motion for summary judgment on

March 2, 2018 in Henderson II, arguing the claim in Henderson II is barred by the doctrine

of res judicata. Attached to the motion for summary judgment is the affidavit of Darrell

Markijohn, counsel for Canton City Schools, stating the documents attached as the

complaints and notices of dismissal, are certified copies.      Appellee BWC joined in

appellee Canton City Schools’ motion for summary judgment on March 16, 2018.

      {¶7}   Appellant filed her memorandum contra to appellees’ motion for summary

judgment on March 16, 2018, arguing res judicata did not bar her claim in Henderson II.

Attached to the memorandum contra to the motion for summary judgment is the affidavit

of C. Bradley Howenstein, counsel for appellant, stating the attached documents are true

and accurate copies from the IC’s system.

      {¶8}   Appellee Canton City Schools filed a reply in support of their motion on

March 29, 2018.

      {¶9}   The trial court issued a judgment entry granting appellees’ motions for

summary judgment on May 16, 2018. The trial court found both Henderson I and

Henderson II arise out of the same March 17, 2014 workplace injury and thus the same

transaction, but allege two different substantive theories of causation. The trial court

found that, under the holding of the Ohio Supreme Court in Starkey, appellant was entitled
Stark County, Case No. 2018CA00073                                                          4

to present her theory of substantial aggravation in Henderson I, but she did not, and res

judicata bars claims that arise out of the same transaction that were or might have been

brought in an earlier proceeding. The trial court noted appellant concedes the second

voluntary dismissal of Henderson I operates as an adjudication of the merits of the claim.

The trial court found this case involves the same parties, the same transaction or

occurrence (the March 17, 2014 workplace injury), and the same injury (a partial thickness

tear left supraspinatus) as that at issue in Henderson I, and thus the claim in Henderson

II is barred by res judicata.

       {¶10} Appellant appeals the May 16, 2018 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

       {¶11} “I. WHERE THE INDUSTRIAL COMMISSION CONDUCTS SEPARATE

ADJUDICATIONS OF THE SAME CONDITIONS UNDER DIFFERENT CAUSAL

THEORIES, APPELLANT IS NOT PRECLUDED BY COLLATERAL ESTOPPEL FROM

PURSUING SEPARATE COURT APPEALS OF THE DENIALS OF THOSE

CONDITIONS, AS THE CONDITIONS WERE NOT FULLY LITIGATED IN THE EARLIER

ADJUDICATION BY THE COMMISSION.

       {¶12} “II. THE SUMMARY JUDGMENT GRANTED BY THE LOWER COURT IS

INAPPROPRIATE AS A MATTER OF LAW ON THE UNDISPUTED FACTS.”

                                   Summary Judgment Standard

       {¶13} Civ.R. 56 states, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in
Stark County, Case No. 2018CA00073                                                     5


      the action, show that there is no genuine issue of material fact and that the

      moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable minds

      can come to but one conclusion and that conclusion is adverse to the party

      against whom the motion for summary judgment is made, that party being

      entitled to have the evidence or stipulation construed mostly strongly in the

      party’s favor. A summary judgment, interlocutory in character, may be

      rendered on the issue of liability alone although there is a genuine issue as

      to the amount of damages.

      {¶14} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

      {¶15} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Stark County, Case No. 2018CA00073                                                         6

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243

                                              I. & II.

       {¶16} We consider appellant’s assignments of error together because they are

interrelated. Appellant argues the trial court erred in granting summary judgment to

appellees based upon res judicata. Appellees contend the trial court properly granted

them summary judgment pursuant to the doctrine of res judicata.

       {¶17} The doctrine of res judicata precludes “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.” State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio

St.3d 649, 687 N.E.2d 768 (1998). In order to apply the doctrine of res judicata, we must

conclude the following: “(1) there was a prior valid judgment on the merits; (2) the second

action involved the same parties as the first action; (3) the present action raises claims

that were or could have been litigated in the prior action; and (4) both actions arise out of

the same transaction or occurrence.” Grava v. Parkman Twp., 70 Ohio St.3d 379, 653

N.E.2d 226 (1995). Res judicata extends to claims that “were or could have been

litigated” in the first action. State ex rel. Massey v. Stark Cty. Common Pleas Ct., 5th

Dist. Stark No. 2017CA00003, 2017-Ohio-1351; Franklin v. Brown, 5th Dist. Richland No.

16CA24, 2016-Ohio-7032.

       {¶18} In this case, Henderson II involves the same parties as Henderson I. Both

actions arise out of the same transaction or occurrence, the March 17, 2014 workplace

injury, and the same injury, a partial thickness tear left supraspinatus. There is a final

adjudication on the merits of the claim in Henderson I because, as appellant concedes,
Stark County, Case No. 2018CA00073                                                          7


when a plaintiff files “two unilateral notices of dismissal under Civ.R. 41(A)(1)(a) regarding

the same claim, the second notice of dismissal functions as an adjudication of the merits

of that claim, regardless of any contrary language in the second notice.” Olynyk v. Scoles,

114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254.           An adjudication on the merits

pursuant to the double-dismissal rule is a bar to a future action asserting the same claim

under the doctrine of res judicata. Id. Accordingly, the only issue is whether the present

action raises claims that were or could have been litigated in the prior action.

       {¶19} Appellant first argues res judicata is inapplicable where a claimant is

pursuing different causal theories. We disagree.

       {¶20} In Starkey v. Builders FirstSource Ohio Valley, L.L.C., 130 Ohio St.3d 114,

2011-Ohio-3278, 956 N.E.2d 267, the Ohio Supreme Court addressed the following

issue: “whether a claim for a certain condition by way of direct causation must necessarily

include a claim for aggravation of that condition for purposes of either R.C. 4123.512 or

res judicata.” The Supreme Court answered affirmatively and stated “a claim for a certain

condition by way of direct causation must necessarily include a claim for aggravation of

that condition.” Id. The Court held that because aggravation of a preexisting condition is

a type of causation, it is not a separate condition or distinct injury. Id. The Court reasoned

that in an R.C. 4123.512 appeal from the IC’s order, though the appeal is de novo, the

claimant’s right to participate in the fund is for a specific injury, not a specific type of

causation. Id. Further, that a claimant is not required to advance a specific theory of

causation at the administrative level to utilize that theory in common pleas court because

R.C. 4123.512 allows a claimant to introduce new evidence, provided the evidence

relates to the same condition or injury. Id.
Stark County, Case No. 2018CA00073                                                         8

       {¶21} In Robinson v. AT&T Network Systems, the Tenth District found the

appellant’s second R.C. 4123.512 appeal was barred by res judicata. 10th Dist. Franklin

No. 02AP-807, 2003-Ohio-1513. Like in this case, the only distinguishing factor between

the appellant’s two cases in Robinson was “whether the accident directly caused, or

served to aggravate, the injury.” Id. The Court found “advancing a new theory of

causation is not tantamount to trying to prove a new injury” and simply advancing a new

theory of causation “presents a claim that for all intents and purposes, is identical to that

of the first” and is barred by res judicata. Id.; see also Holbrook v. OhioHealth Corp., 10th

Dist. Franklin No. 14AP-507, 2015-Ohio-2354 (holding res judicata barred the appellant

from pursuing a second claim for substantial aggravation because substantial aggravation

does not give rise to a separate claim). While we ultimately determined res judicata did

not apply because the parties agreed there were four distinct injuries or conditions

presented in each appeal, this Court has previously favorably cited Robinson for the

proposition that a claimant must present all possible theories of causation for one injury

in a single proceeding. Banner v. Fresh Mark, Inc., 5th Dist. Stark No. 2006CA00055,

2007-Ohio-3359.

       {¶22} Pursuant to Starkey and Robinson, appellant was entitled to present her

theory of substantial aggravation in Henderson I even if it had not been adjudicated

administratively, because the partial thickness tear left supraspinatus had been

addressed administratively on the theory of direct causation, and she is allowed to present

evidence on any theory of causation in her R.C. 4123.512 appeal. Thus, the claim in

Henderson II was or could have been litigated in Henderson I.
Stark County, Case No. 2018CA00073                                                        9

       {¶23} Additionally, Henderson I was pending twice at the same time Henderson II

was pending. Appellant could have sought to consolidate Henderson I and Henderson

II, pursuant to Civil Rule 18, during the times they were both pending from January 25,

2016 to April 4, 2016 and again from September 25, 2017 to February 21, 2018.

       {¶24} Appellant contends that since the IC separately adjudicated her direct

causation and substantial causation theories separately, she can pursue two cases in

common pleas court. However, the Ohio Supreme Court has held that an R.C. 4123.512

appeal to the common pleas court is a de novo determination of both facts and law, in

which a claimant bears the burden of proving his or her right to participate in the workers’

compensation fund, regardless of the IC’s decision. Bennett v. Admr., Ohio Bureau of

Workers’ Compensation, 134 Ohio St.3d 329, 2012-Ohio-5639, 982 N.E.2d 666. The

common pleas court, or jury, makes a determination de novo, not predicated upon

evidence before the IC, but upon evidence adduced before the common pleas court, and

without consideration of and without deference to the decision of the IC. Id. Accordingly,

the fact that the IC separately adjudicated her theories is not dispositive in an R.C.

4123.512 appeal.

       {¶25} Appellant additionally argues that, pursuant to the Ohio Supreme Court’s

decision in Ward v. Kroger, she could only seek to participate in the fund for those

conditions addressed in the administrative order from which that appeal was taken; thus,

she had to separately appeal the direct causation and substantial aggravation denials.

Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155. Ward holds

that a claimant in an R.C. 4123.512 appeal may seek to participate in the fund only for

those conditions that were addressed in the administrative order from which the appeal
Stark County, Case No. 2018CA00073                                                       10


is taken and states a claimant is not required to litigate distinct conditions in a single

proceeding merely because they affect or involve the same body part. Id.

       {¶26} However, subsequent to Ward, the Ohio Supreme Court stated that Ward

“involved a discrete situation in which a specific medical condition was administratively

considered and the claimant then attempted to add new conditions in his R.C. 4123.512

appeal.” Bennett v. Admr., Ohio Bureau of Workers’ Compensation, 134 Ohio St.3d 329,

2012-Ohio-5639, 982 N.E.2d 666. The Ohio Supreme Court also held that “because

aggravation of a preexisting medical condition is a type of causation, it is not a separate

condition or distinct injury.” Id.; see also Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-

Ohio-3560, 830 N.E.2d 1155 (defining an industrial ‘claim’ in terms of a specific condition

or injury, regardless of the cause.) Ward pertained to alleging new medical conditions.

In this case, appellant did not allege a new medical condition or injury in Henderson II.

Rather, he alleged a new theory of causation. Thus, the holding in Ward is not applicable

to this case.

       {¶27} Appellant contends she could not bring both direct causation and

substantial aggravation theories in the same case in the common pleas court because

she would have to present an expert medical opinion that is contradictory because the

same expert stated her condition was both caused by her industrial incident and was a

preexisting condition that was made worse by that incident. However, appellant could

have sought to consolidate Henderson I and Henderson II pursuant to Civil Rule 18, as

both cases were pending at the same time from January 25, 2016 to April 4, 2016 and

again from September 25, 2017 to February 21, 2018. Additionally, as noted by the Tenth

District, the core of appellant’s claim is whether she should be permitted to participate in
Stark County, Case No. 2018CA00073                                                       11


the workers’ compensation fund for the specific injury of a partial thickness tear left

supraspinatus and she could have argued her entitlement to participate in the workers’

compensation fund by presenting alternative theories of causation: the accident directly

caused the partial thickness tear left supraspinatus or the accident aggravated the partial

thickness tear left supraspinatus.    Robinson v. AT&T Network Systems, 10th Dist.

Franklin No. 02AP-807, 2003-Ohio-1513.

       {¶28} Based on the foregoing, we find the four prongs of the res judicata test are

met in this case, Henderson II is barred by res judicata, and the trial court did not err in

granting appellees’ motion for summary judgment.

       {¶29} The May 16, 2018 judgment entry of the Stark County Court of Common

Pleas is affirmed.


By: Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
