I respectfully dissent. Resolution 98-1-02 of the Industrial Commission of Ohio Adjudicatory Resolutions specifically provides for Greene v.Conrad (Aug. 21, 1997), Franklin App. No. 96APE12-1780, unreported, to apply to claims that are denied "for the reason that the claimant did not provide all the information requested by the Bureau of Workers' Compensation to establish a claim[.]" The *Page 503 resolution does not require that the claim be denied for the sole reason that the claimant did not provide all the information requested to establish a claim.
Ohio law provides that the workers' compensation laws are to be liberally construed in favor of employees. Bailey v. Republic EngineeredSteels, Inc. (2001), 91 Ohio St.3d 38. See, also, R.C. 4123.95. As such, since the Bureau of Workers' Compensation ("BWC") cited as one of its reasons for denying appellant's claim the fact that she had not provided the requested information, Greene applies. This statement appears in the same paragraph and immediately after the BWC's statement that appellant "did not meet her burden of proof." The failure of a party to meet their burden of proof is usually used synonymously with failure to establish a claim. Consequently, due to our mandate to liberally construe the workers' compensation law in favor of the employee, I would reverse.
I am additionally troubled about the preclusive effect of a denial of a claim at the BWC since BWC no longer conducts adjudicative hearings. InGreene, the Tenth District Court of Appeals expressed its concern over the res judicata issue in the following text:
[A]s the Supreme Court pointed out in State, ex rel. Crabtree v. Ohio Bur. of Workers' Comp. (1994), 71 Ohio St.3d 504, 644 N.E.2d 361, today the BWC does not conduct such hearing * * *
The doctrine of res judicata is applicable to the orders of administrative agencies, but only when the order is the product of administrative proceedings that are "of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding." Set Products, Inc. v. Bainbridge Twp. Bd. of ZoningAppeals (1987), 31 Ohio St.3d 260, 263, 510 N.E.2d 373 (quoting Superior'sBrand v. Lindley [1980], 62 Ohio St.2d 133, 403 N.E.2d 996, syllabus); see Cincinnati Bell Tel. Co. v. Pub. Util. Comm. (1984), 12 Ohio St.3d 280,283, 466 N.E.2d 848 (holding that doctrine was inapplicable because FCC order was legislative rather than adjudicative in nature); Gerstenbergerv. Macedonia (1994), 97 Ohio App.3d 167, 173-174, 646 N.E.2d 489 (holding that doctrine was inapplicable to prior civil service commission order because, inter alia, city did not have opportunity to fully litigate all issues presented); Independence v. Maynard (1985), 25 Ohio App.3d 20,28, 495 N.E.2d 444 (holding that doctrine was inapplicable to EPA order granting landfill installation permit), certiorari denied (1986),475 U.S. 1082, 106 S.Ct. 1459, 89 L.Ed.2d 717. In defining the scope of judicial review of administrative proceedings under R.C. 2506.01, the Supreme Court held: "Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence." M.J. Kelley Co. v.Cleveland *Page 504 (1972), 32 Ohio St.2d 150, 290 N.E.2d 562, paragraph two of the syllabus. The Second Restatement of Judgments adopts the doctrine of resjudicata as to any "adjudicative determination by an administrative tribunal * * * only insofar as the proceedings resulting in the determination entailed the essential elements of adjudication." Restatement of the Law 2d, Judgments (1980) 266, Section 83. Comment b to Section 83 summarizes this requirement as that of "the essential procedural characteristics of a court." Id. at 269.
The doctrine of res judicata does not apply to the ministerial acts of administrative agencies. In Reich v. Youghiogheny and Ohio Coal Co. (C.A.6 1995), 66 F.3d 111, 115, the court held that the doctrine did not apply to a calculation of interest due on benefits owed by a coal operator under the Black Lung Benefits Act: "The fact that the agency's initial demand was a ministerial act and not a final order makes res judicata inapplicable." In a different context, the Supreme Court of Ohio referred to the power of the BWC as being ministerial. In State ex rel. Crabtreev. Ohio Bur. of Workers' Comp. (1994), 71 Ohio St.3d 504, 644 N.E.2d 361, the court stated:
"* * * The bureau's role is ministerial, not deliberative. The bureau gives way to the commission when a party contests an award, necessitating a weighing of evidence and a judgment. The bureau then makes the payments based upon the commission's judgments.
"* * *
"The bureau correctly notes that R.C. 4121.39(A) directs the bureau to `review and process all applications for claims.' `Review and process,' however, does not equate to `affirmatively adjudicate' all applications for claims. * * *" Id. at 507-508.
Although this issue is not dispositive here, I share these same concerns as well. *Page 505