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Gibson v. Barmet Aluminum Corp.8/30/2000
f such claim, provided a copy of his February 8, 1993 MRI as well as Dr. Casiano's report of March 15, 1996 . Dr. Casiano, in his report, once again relies on appellant's MRI and Dr. Tatsumi's March 6, 1993, report in determining that appellant's "disc herniation L3-L4 is directly related to patient's injury of 2-25-90 (sic)." Dr. Casiano, between 1993 to 1996, updated his medical opinion but the information he relied upon for his diagnosis of appellant's condition remained the same as the information he relied on in 1993. Based on the foregoing, we concur with appellees that the same evidence, namely appellant's 1993 MRI and Dr. Tatsumi's March 6, 1993, report, supported appellant's earlier bulging disc L3-4 claim and his later herniated disc L3-4 claim. As is stated above, appellant's bulging disc claim was fully litigated. Although the ICO disallowed appellant's bulging disc claim after finding that it was not related to his February 5, 1990, industrial injury, appellant did not appeal such decision to the Tuscarawas County Court of Common Pleas. Clearly, the issue of whether the injury to appellant's disc at L3-4 was related to such accident was "actually and directly" at issue in appellant's 1993 proceeding before the ICO. The doctrine of issue preclusion, therefore, bars appellant from now litigating the issue of whether his herniated disc L3-4 claim is a direct result of his industrial accident. We further find that appellant's claim for "herniated disc L3-L4" is barred by the doctrine of claim preclusion. Appellant, in 1993, filed a motion to reactivate his claim to secure an additional allowance for the condition of "disc herniation of L3-L4 and L4-L5." However, at the hearing held on September 3, 1993, appellant amended his request for an additional allowance to only request an allowance for "bulging disc L3-4" and dismissed his request for an allowance for "disc herniation L3-4 and L4-5." Although appellant's bulging disc claim was disallowed by the ICO, appellant did not appeal the disallowance to the court of common pleas. Pursuant to a C-86 motion filed on March 20, 1996, appellant requested that his claim "be further recognized for disc herniation L3-L4." Clearly, appellant could have pursued such claim in the 1993 proceeding since the same evidence, namely, his MRI and Dr. Casiano's report, supported both appellant's bulging disc claim and his herniated disc claim. Appellant, however, voluntarily chose not to do so. Pursuant to the doctrine of claim preclusion, appellant, therefore, is now barred from litigating such claim. In sum, appellant argues that his claim for disc herniation at L3-4 is different from his claim for bulging disc at L3-4. We find that, for purposes of the case sub judice, it is irrelevant whether bulging and herniated discs are the same condition or different conditions. Whatever the nature of the condition, it was determined in 1994 that the condition was not related to appellant's 1990 industrial injury. In addition, the claim that the disc at L3-4 was herniated rather than bulging could have been raised during the 1993 - 1994 proceedings. In fact, the appellant initially requested that benefits be allowed based on a disc herniation at L3-L4 in his 1993 claim but appellant asked that that request be dismissed. The MRI that was relied upon to determine whether the disc was herniated or bulging was the same in both appellant's 1993 claim and his 1996 claim. Based on the foregoing, we find that the trial court did not err in granting appellees' motion for summary judgment. Appellant's sole assignment of error is, therefore, overruled.
The judgment of the Tuscarawas County Court of Common Pleas is affirmed.
By Edwards, J. Hoffman, P.J. and Farmer, concurs
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