Gibson v. Barmet Aluminum Corp.8/30/2000
enying appellant's request for an allowance for "bulging disc L3-4." On January 14, 1994, appellant filed an appeal from the Canton Regional Board of Review's January 14, 1994, decision. Subsequently, a hearing on appellant's appeal was held on March 29, 1994, before two ICO staff hearing officers. Pursuant to a decision issued on March 29, 1994 , the hearing officers vacated the January 14, 1994, order of the Canton Regional Board and reinstated the district hearing officer's September 3, 1993, order denying the bulging disc at L3-4. No appeal was taken by appellant from the March 29, 1994, order issued by the staff hearing officers. Thereafter, in March of 1996, Dr. Casiano, in a letter to appellant's counsel dated March 15, 1996, once again opined that appellant's disc herniation at L3-L4 was directly related to appellant's February 1990 injury. Subsequently, appellant, on March 20, 1996, filed a C -86 motion with the BWC requesting that appellant's claim be further allowed for disc herniation at L3-L4. Appellant, in support of his motion, included a copy of his February of 1993 MRI and Dr. Casiano's March of 1996 report. A hearing on appellant's C-86 motion was held before an ICO district hearing officer on May 23, 1996. Following the hearing, the hearing officer denied appellant's C-86 motion and specifically disallowed appellant's claim for the condition of "disc herniation L3-L4." After appellant appealed from such decision, a staff hearing officer, following a hearing held on July 1, 1996, affirmed the order of the district hearing officer. Appellant's appeal from the staff hearing officer's July 11, 1996, decision was refused by the ICO. Thereafter, appellant, on September 24, 1998, filed a Notice of Appeal and Complaint with the Tuscarawas County Court of Common Pleas. Although a joint motion for summary judgment was filed by the BWC, the ICO and Barmet Aluminum Corp. on November 19, 1999, the Administrator of the BWC and ICO filed a separate motion for summary judgment three days later. Appellees, in their two motions, argued that appellant's claim for an additional allowance for herniated disc L3-4 was barred by the doctrine of res judicata. A memorandum in opposition to appellees' motions for summary judgment was filed by appellant on December 21, 1999. Pursuant to a Judgment Entry filed on January 5, 2000, the trial court granted the motion for summary judgment filed by appellee Administrator BWC and ICO and ordered that appellant's complaint be dismissed. It is from the trial court's January 5, 2000, Judgment Entry that appellant prosecutes his appeal, raising the following assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN GRANTING THE APPELLEES' MOTION FOR SUMMARY JUDGMENT.
Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35. Civ. R. 56(C) 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 the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... 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 most strongly in the party's fav
Page 1 2 3 4 5 Ohio Employee Leasing Services
Employee Leasing Services
|