Johnson-Floyd v. REM Ohio, Inc. ( 2011 )

[Cite as Johnson-Floyd v. REM Ohio, Inc., 2011-Ohio-6542.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RHODA JOHNSON-FLOYD JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11-CA-25
REM OHIO, INC., ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case Nos. 09CV1171
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
LAUREN N. OSGOOD MICHAEL DEWINE
MARK A. ADAMS Ohio Attorney General
Adams & Gast, LLC
1110 Beecher Crossing North, Suite D SANDRA E. PINKERTON
Columbus, Ohio 43230 Counsel of Record
Assistant Attorney General
Workers’ Compensation Section
150 East Gay Street, 22nd Floor
Columbus, Ohio 43215
Fairfield County, Case No. 11-CA-25 2
Hoffman, P.J.
{¶ 1} Plaintiff-appellant Rhoda Johnson-Floyd appeals the April 5, 2011
Judgment Entry entered by the Fairfield County Court of Common Pleas, which ordered
Defendants-appellees REM Ohio, Inc., et al. to pay her $2000.00 in statutory attorney
fees, following Appellees’ acknowledgement Appellant was entitled to additional
benefits from the Bureau of Workers’ Compensation Fund.
STATEMENT OF THE FACTS AND CASE
{¶ 2} Appellant was injured at work on May 20, 1994. Appellant filed a workers’
compensation claim for the injuries she sustained. The Ohio Bureau of Workers’
Compensation allowed her claims for “lumbar disc displacement, lumbar sprain,
disorders of the sacrum and post-laminectomy syndrome.” Subsequently, in April,
2209, Appellant sought the right to participate for the additional conditions of “lumbar
stenosis of L2-3 and L3-4 and lumbar radiculopathy of L2-3 and L3-4.” The Industrial
Commission of Ohio granted Appellant’s request as to the stenosis and radiculopathy at
L3-4, but denied her request with respect to the stenosis and radiculopathy at L2-3.
{¶ 3} On September 4, 2009, Appellant filed a Notice of Appeal as well as a
Complaint against Appellee Administrator, Bureau of Workers’ Compensation in the
Fairfield County Court of Common Pleas, appealing the denial of the stenosis and
radiculopathy at L2-3 claims pursuant to R.C. 4123.512. The Administrator, with leave,
filed an Answer as well as an initial disclosure of witnesses.
{¶ 4} The parties filed a joint pretrial statement on March 2, 2010. The trial
court conducted a pretrial on March 26, 2010, and scheduled the matter for trial. At the
pretrial, counsel for Appellant anticipated Appellant would either settle the claims or
Fairfield County, Case No. 11-CA-25 3
voluntarily dismiss the pending case because Appellant continued to receive on-going
treatment and disability compensation for the allowed conditions in the claim.
{¶ 5} In June, 2010, counsel for Appellee sent a letter to counsel for Appellant,
indicating Appellant had not yet responded to the interrogatories and requests for
production, and had not signed requested medical releases. Appellant sent responses
to some of the interrogatories in August, 2010. However, those responses did not
include full names and addresses for Appellant’s treating physicians. Ultimately,
Appellee sought a protective order to cancel the deposition of Appellant’s expert, and an
order to compel Appellant to fully respond to discovery. The parties briefed their
respective positions. The trial court ordered Appellant to provide full and complete
responses to Appellee’s interrogatories, and to sign the medical release. The trial court
also granted the protective order and continued the trial date.
{¶ 6} After Appellant responded to discovery, Appellee sought and reviewed
medical records, determined which possible independent medical examiners did not
have conflicts of interest with Appellant’s treating physicians, and named Dr. Matthew
McDaniel as its expert witness and independent examiner. Appellee scheduled Dr.
McDaniel’s trial deposition as well Appellant’s examination by the doctor. Appellant
sought a protective order to prevent the independent medical examination. Appellee
opposed the protective order. The trial court ordered Appellant to submit to the
examination, which she did on January 20, 2011.
{¶ 7} The independent medical examiner found the additional conditions which
Appellant sought to include were directly related to her 1994 injury. After receiving the
report from the independent medical examiner, Appellee agreed to allow the disputed
Fairfield County, Case No. 11-CA-25 4
conditions. Appellee agreed to pay Appellant $2000, in attorney fees. Appellant
refused, and then filed a motion for costs and request for the statutory $2500 maximum
in attorney fees. Appellee filed a memorandum in opposition. Via Judgment Entry filed
April 5, 2011, the trial court awarded Appellant $2000, in attorney fees.
{¶ 8} It is from this judgment entry, Appellant appeals, assigning as error:
{¶ 9} “I. IN THIS WORKERS’ COMPENSATION ACTION, THE TRIAL COURT
ABUSED ITS DISCRETION IN DENYING THE FULL AMOUNT OF ATTORNEY FEES
UNDER OHIO REV. C §4123.512(F) WHERE THE RECORD CONTAINS EVIDENCE
THAT COUNSEL EARNED THE FULL AMOUNT.
{¶ 10} “II. IN THIS WORKERS’ COMPENSATION ACTION, THE TRIAL COURT
ABUSED ITS DISCRETION IN NOT HOLDING A HEARING GIVING COUNSEL THE
OPPORTUNITY TO BE HEARD REGARDING ATTORNEY FEES.”
I
{¶ 11} In her first assignment of error, Appellant maintains the trial court abused
its discretion in denying her the full amount of attorney fees allowed by R.C.
4123.512(F).
{¶ 12} The decision to grant or deny fees under R.C. 4123.512(F) lies within the
sound discretion of the trial court and will not be disturbed absent an abuse of
discretion. Azbell v. Newark Group, Inc., 5th Dist. No. 07 CA 00001, 2008-Ohio-2639.
An abuse of discretion is more than an error of law or judgment, rather, it implies that
the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140.
Fairfield County, Case No. 11-CA-25 5
{¶ 13} R.C. 4123.512(F) authorizes the trial court to award attorney fees within a
statutory limit to the successful claimant. The version of R.C. 4123.512(F) applicable to
this matter reads:
{¶ 14} “The costs of any legal proceedings authorized by this section, including
an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the
effort expended, in the event the claimant's right to participate or to continue to
participate in the fund is established upon the final determination of an appeal, shall be
taxed against the employer* * * The attorney's fees shall not exceed twenty-five hundred
dollars.”1
{¶ 15} We find the trial court did not abuse its discretion in limiting the amount of
attorney fees awarded to Appellant to $2000. In the motion for costs and fees, counsel
for Appellant detailed the work she performed in preparing the matter for trial, from the
filing of the initial Notice of Appeal and Complaint with the Fairfield County Court of
Common Pleas, to responding to numerous motions filed by Appellee. Counsel did not
include an affidavit or time sheet stating the number of hours she worked on the case or
her hourly rate. Upon review, we find some of the work counsel for Appellant performed
was necessitated by her own actions. Appellant failed to timely respond to Appellee’s
discovery requests, thus requiring Appellee to file a motion to compel to which Appellant
then responded. Appellant filed a motion for a protective order to prevent the
independent medical examination. It appears Appellant’s counsel’s attempts to avoid
1
2006 Am. Sub. S.B. 7, effective August 25, 2006, amended R.C. 4123.512(F) to
increase the statutory maximum attorney fees from $2500 to $4200. The Ohio
Supreme Court held the amendments of S.B. 7 apply only to industrial injuries after
August 25, 2006. Thornton v. Montville Plastics & Rubber, Inc., 121 Ohio St. 3d 124,
2009-Ohio-360.
Fairfield County, Case No. 11-CA-25 6
the examination caused this matter to remain unresolved for longer than it otherwise
would. Though we do not mean to suggest the trial court would have abused its
discretion had it awarded the maximum $2500, we do not find its decision to award
$2000 constitutes an abuse of its discretion.
{¶ 16} Appellant’s first assignment of error is overruled.
II
{¶ 17} In her second assignment of error, Appellant asserts the trial court abused
its discretion by failing to conduct an oral hearing on her motion for attorney fees. We
disagree.
{¶ 18} R.C. 4123.512 does not require a trial court to conduct a hearing when
determining whether or how much attorney fees to award. Additionally, via Judgment
Entry filed February 14, 2011, the trial court scheduled a non-oral hearing on
Appellant’s motion for costs and attorney fees and any reply thereto. Appellant did not
request an oral hearing prior to or after receiving this notice.
{¶ 19} Appellant’s second assignment of error is overruled.
{¶ 20} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Fairfield County, Case No. 11-CA-25 7
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RHODA JOHNSON-FLOYD :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
REM OHIO, INC., ET AL. :
:
Defendants-Appellees : Case No. 11-CA-25
For the reasons stated in our accompanying Opinion, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY