Wasinski v. PECO II, Inc. ( 2010 )

[Cite as Wasinski v. PECO II, Inc., 189 Ohio App.3d 550, 2010-Ohio-4293.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
WASINSKI,
APPELLEE,
v. CASE NO. 3-10-01
PECO II, INC.,
APPELLEE;
OPINION
RYAN, ADMR.,
APPELLANT. (Two cases.)
Appeals from Crawford County Common Pleas Court
Trial Court Nos. 06-CV-0068 and 06 CV 0508
Judgments Affirmed in Part, Reversed in Part and Causes Remanded
Date of Decision: September 13, 2010
APPEARANCES:
Jetta Mencer, for appellee Jodi Wasinski.
Richard Cordray, Attorney General, and Kevin J. Reis, Assistant
Attorney General, for appellant.
Case No. 3-10-01 and 3-10-02
PRESTON, Judge.
{¶1} Defendant-appellant, administrator, Ohio Bureau of Workers’
Compensation (“BWC”), appeals the January 12, 2010 judgment entry of the
Court of Common Pleas, Crawford County, Ohio, ordering BWC to pay
deposition expenses and mileage expenses to a successful workers’ compensation
claimant, plaintiff-appellee, Jodi D. Wasinski. For the reasons that follow, we
affirm in part and reverse in part.
{¶2} This is the second time that this particular workers’ compensation
case has been up on appeal. In the prior appeal, this court ultimately affirmed the
trial court’s judgment entry granting Wasinski her right to participate in the
workers’ compensation fund for two conditions. The issue in this appeal deals
with the trial court’s January 12, 2010 judgment entry, which granted Wasinski’s
motion for payment of costs and fees associated with the jury trial pursuant to R.C.
4123.512(D) and (F).
{¶3} The procedural history of this case is not in dispute. Wasinski was
employed by PECO II, Inc., a company doing business in Crawford County, Ohio.
On or about January 20, 2001, Wasinski was injured in an automobile accident
while she was in Dallas, Texas, on a business trip in the course of her employment
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with PECO. Wasinski filed an application for payment of compensation and
benefits with the Industrial Commission of Ohio under the Ohio Workers’
Compensation Act. This claim was allowed by the Industrial Commission of Ohio
for injuries described as contusion to scalp and left knee, cervicothoracic strain,
and lumbosacral strain.
{¶4} On February 7, 2003, Wasinski moved to have her original claim
modified to include the following additional allowances: (1) major depression
single episode and moderate conversion disorder, (2) deferred with dependent
traits, (3) multiple pain sites and neurological symptoms, and (4) pain symptoms
and neurological symptoms, moderate. Wasinski’s motion was denied by a
district hearing officer on July 23, 2003, and by a staff hearing officer on
September 15, 2003. The Industrial Commission refused Wasinski’s appeal on
October 11, 2003.
{¶5} On December 8, 2003, Wasinski filed an appeal of the October 11,
2003 decision with the Cuyahoga County Court of Common Pleas pursuant to
R.C. 4123.512. This case was transferred to the Crawford County Court of
Common Pleas and assigned case No. 04-CV-011. However, on February 23,
2004, the case was dismissed without prejudice pursuant to Civ.R. 41(A)(1). On
February 14, 2006, Wasinski refiled her complaint, naming PECO and appellant,
the administrator of BWC, as defendants. This case was assigned case No. 06-
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Case No. 3-10-01 and 3-10-02
CV-0068. The complaint alleged the right to participate in the benefits of the
workers’ compensation fund for major depression, single episode.
{¶6} On May 12, 2006, Wasinski filed another motion with the BWC,
requesting that her original claim again be additionally allowed for postural
tachycardia syndrome and autonomic neuropathy. On August 11, 2006, a district
hearing officer granted Wasinski’s motion. PECO appealed the district hearing
officer’s decision, and on September 22, 2006, a staff hearing officer vacated the
district hearing officer’s decision and denied Wasinski’s motion. On October 6,
2006, the Industrial Commission refused Wasinski’s appeal from the staff hearing
officer’s decision.
{¶7} Consequently, on November 27, 2006, Wasinski filed a notice of
appeal from the Industrial Commission’s October 6, 2006 decision with the
Crawford County Court of Common Pleas. On this same date, Wasinski also filed
a complaint and jury demand in which she alleged her right to participate in the
benefits of workers’ compensation fund for the conditions of postural tachycardia
syndrome and autonomic neuropathy. This matter was assigned case No. 06-CV-
0508.
{¶8} Case No. 06-CV-0508 and case No. 06-CV-0068 were consolidated
for trial purposes on January 19, 2008, and the matters proceeded to a jury trial on
May 13, 14, 15, and 16, 2008. At the close of all the evidence, the jury returned a
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verdict in favor of Wasinski on both of her proposed conditions. Specifically, the
jury determined that Wasinski was entitled to participate in the benefits of the
workers’ compensation fund for the condition of postural tachycardia syndrome
and for the condition described as major depression, single episode.
{¶9} Subsequently, BWC appealed to this court, asserting various
evidentiary and procedural errors allegedly made by the trial court during the jury
trial. In addition, Wasinski filed a cross-appeal asserting additional errors, most of
which were dependent upon this court sustaining one or more of BWC’s
assignments of error. Ultimately, on July 15, 2009, this court overruled both
Wasinski’s and BWC’s assignments of error, and we affirmed the trial court’s
judgment entry granting Wasinski her right to participate in the workers’
compensation fund for her two proposed conditions. Wasinski v. PECO II, Inc.,
3d Dist. Nos. 3-08-14 and 3-08-16, 2009-Ohio-2615.
{¶10} On August 5, 2009, Wasinski renewed her motion in the trial court
for payment of costs and fees associated with the jury trial proceedings pursuant to
R.C. 4123.512(D) and (F). BWC agreed to some of the costs and fees requested
by Wasinski but objected to the expenses related to two particular depositions and
mileage expenses for Wasinski’s attorney, claiming that they were not authorized
under the statute. On January 12, 2010, the trial court ordered the payment of all
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of the expenses sought by Wasinski, including the following costs at issue in this
appeal:
Deposition witness fee of Robert Jones, M.D. $900.00
Transcript fee for deposition of Robert Jones, M.D. $507.15
Video deposition recording fee for Robert Jones, M.D. $575.00
Mileage travel to deposition of Robert Jones, M.D. $123.32
Mileage to court of appeals argument $ 96.96
Transcript (discovery) deposition of Blair Grubb, M.D. $269.55
{¶11} BWC now appeals and raises three assignments of error. For ease of
our discussion, we elect to address all of BWC’s assignments of error together.
Assignment of Error No. I
The trial court erred in ordering the defendant administrator
to pay, under R.C. 4123.512, the claimant’s expert’s fee, video
deposition expense, transcript deposition expense and counsel’s
mileage to and from the expert’s deposition, when the deposition
was not used at the trial.
Assignment of Error No. II
The trial court erred in ordering the defendant administrator
to pay, under R.C. 4123.512, the claimant’s expense for a transcript
of a discovery deposition of the claimant’s expert, when the
discovery deposition was not used at the trial.
Assignment of Error No. III
The trial court erred in ordering defendant administrator to
pay, under R.C. 4123.512, claimant’s counsel’s mileage expense
related to counsel’s travel to and from the court of appeals.
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{¶12} In its three assignments of error, BWC claims that the trial court
erred in granting certain expenses sought by Wasinski because these expenses
were not authorized by the statute. First, BWC claims that it should not have to
pay for the expenses associated with Dr. Jones’s deposition, since Dr. Jones’s
deposition was excluded from being used at trial. Similarly, BWC argues that it
should also not have to pay for Dr. Grubb’s discovery deposition, because the trial
court also excluded it from being used at trial. Finally, BWC claims that it should
not have to pay for Wasinski’s attorney’s mileage expenses associated with
traveling to this court’s oral arguments on the first appeal in 2009.
{¶13} First of all, despite BWC’s argument to the contrary, the decision to
grant or deny fees and costs under R.C. 4123.512(D) and (F) lies within the sound
discretion of the trial court, and we will not disturb its decision absent an abuse of
discretion. Dixon v. Ford Motor Co., 8th Dist. No. 82148, 2003-Ohio-3959, ¶ 5.
See also Azbell v. Newark Group, Inc., 5th Dist. No. 07 CA 00001, 2008-Ohio-
2639, ¶ 22; Murawski v. Tamarkin Co., 9th Dist. No. 23103, 2006-Ohio-4870, ¶ 9,
citing Baycliffs Homeowners Assn., Inc. v. Solomon, 6th Dist. No. OT-05-002,
2005-Ohio-4917, ¶ 59; Hansford v. Midwest Staff Solutions, 8th Dist. No. 87226,
2006-Ohio-5581, ¶ 11, citing Raymond v. Shaker Produce, Inc., 8th Dist. Nos.
84885 and 85391, 2005-Ohio-1670; Kilgore v. Chrysler Corp. (Feb. 4, 2000), 2nd
Dist. Nos. 17906 and 17915, at *7, affirmed (2001), 92 Ohio St.3d 184, 749
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N.E.2d 267. An abuse of discretion is more than an error of law; 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.
{¶14} Under R.C. 4123.512, a claimant who successfully appeals from a
denial of benefits is entitled to recovery of certain costs of litigation. Specifically,
R.C. 4123.512(D) and (F) govern a claimant’s recovery of costs of an appeal to
the trial court. R.C. 4123.512(D) concerns the payment for physicians’
depositions filed with the court:
Any party may file with the clerk prior to the trial of the
action a deposition of any physician taken in accordance with the
provisions of the Revised Code, which deposition may be read in the
trial of the action even though the physician is a resident of or
subject to service in the county in which the trial is had. The bureau
of workers’ compensation shall pay the cost of the stenographic
deposition filed in court and of copies of the stenographic deposition
for each party from the surplus fund and charge the costs thereof
against the unsuccessful party if the claimant’s right to participate or
continue to participate is finally sustained or established in the
appeal.
Under this provision, regardless of the outcome of the claimant’s appeal, the
claimant is entitled to be reimbursed for the costs of his or her own doctor’s
deposition if the deposition is filed with the court. Kilgore, 92 Ohio St.3d at 186,
749 N.E.2d 267. While R.C. 4123.512(D) allows reimbursement regardless
whether the claimant wins or loses, it only pertains to a very specific type of costs.
R.C. 4123.512(F), on the other hand, allows for a broader type of reimbursable
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costs, but only if the claimant is successful on appeal and has been deemed
eligible to participate in the workers’ compensation fund. In particular, R.C.
4123.512(F) provides:
The cost 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 or the commission if the commission or
the administrator rather than the employer contested the right of the
claimant to participate in the fund. The attorney’s fee shall not
exceed forty-two hundred dollars.1
Besides determining whether a claimant has been successful, the key to allowing
costs under this provision is whether it qualifies as R.C. 4123.512(F)’s “costs of
any legal proceedings.”
{¶15} Significantly, over the last several years, the Ohio Supreme Court
has consistently construed the term “cost of any legal proceedings” liberally in
favor of employees. See Cave v. Conrad (2002), 94 Ohio St.3d 299, 301, 762
N.E.2d 991. In Moore v. General Motors Corp. (1985), 18 Ohio St.3d 259, 262,
480 N.E.2d 1101, the court held that “the cost of any legal proceedings authorized
by this section” included the fees charged by an expert witness whose deposition
was used in a workers’ compensation hearing. A few years later, the Supreme
1
The prior version of the R.C. 4123.512(F) prescribed that the maximum amount of attorney fees was
$2,500. Effective June 30, 2006 (approximately four months after Wasinski had filed her first complaint
with the trial court), the statutorily prescribed maximum award of attorney fees was increased from $2,500
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Case No. 3-10-01 and 3-10-02
Court held that “[p]ursuant to R.C. 4123.512(F), reasonable videotaped deposition
expenses may be taxed as costs and awarded to a successful workers’
compensation claimant.” Cave, 94 Ohio St.3d 299, at syllabus. Similarly, in
Kilgore, 92 Ohio St.3d 184, 749 N.E.2d 267, at syllabus, the court expanded the
phrase even more and held that “an attorney’s travel expenses incurred in taking a
deposition of an expert are a reimbursable ‘cost of any legal proceedings’ under
R.C. 4123.512(F).” Finally, and most recently, in Schuller v. United States Steel
Corp., 103 Ohio St.3d 157, 2004-Ohio-4753, 814 N.E.2d 857, at syllabus, the
court declared that “[a]n expert witness’s fee for live in-court testimony is a
reimbursable cost of legal proceedings pursuant to R.C. 4123.512(F), subject to
the trial court’s determination that the fee is reasonable.”
{¶16} Central to all of the court’s decisions was the rationale that R.C.
4123.512(D) and (F) were “‘designed to minimize the actual expense incurred by
an injured employee who establishes his or her right to participate in the fund.’”
Cave, 94 Ohio St.3d at 301, quoting Moore, 18 Ohio St.3d at 261-262. The court
has stated that by enacting R.C. 4123.512(F), the General Assembly “‘has
demonstrated its intent that a claimant’s recovery shall not be dissipated by
reasonable litigation expenses connected with the preparation and presentation of
an appeal.’” Id., quoting Moore at 262. Despite its consistent liberal
to $4,200. Here, the trial court awarded Wasinski attorney’s fees in the amount of $2,500. Neither party
disputes the specific award of attorney fees in this particular case.
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interpretation of R.C. 4123.512(F), the Ohio Supreme Court has recognized
employers’ concerns:
Appellants paint a picture of trial courts overwhelmed by
requests for reimbursement for staples, paper clips, and, presumably,
a claimant’s lawyer’s lucky tie if they are used in a successful
appeal. However, our decision today does not allow reimbursement
for everyday costs of doing business. It applies to costs bearing a
direct relation to a claimant’s appeal that lawyers traditionally
charge to clients and that also have a proportionally serious impact
on a claimant’s award. As in the case at bar, approval of an
attorney’s travel expenses incurred in taking an expert’s deposition
is subject to the trial court’s determination of their reasonable
necessity to the presentation of the claimant’s appeal.
Kilgore, 92 Ohio St.3d at 187-188. Nevertheless, the court has repeatedly held
that R.C. 4123.512(F) allows reimbursement for reasonable litigation expenses
that “bear[] a direct relation to a claimant’s appeal that lawyers traditionally
charge to clients and that also have a proportionally serious impact on a claimant’s
award.” Id. at 188.
{¶17} In this particular case, we believe that Dr. Jones’s and Dr. Grubb’s
depositions were reasonable litigation expenses connected with the preparation
and presentation of Wasinski’s appeal that essentially bore a direct relation to the
success of her appeal even though they were not admitted at trial. Dr. Jones was
one of Wasinski’s treating physicians and was treating Wasinski for one of the
conditions (depression) that she was trying to seek coverage for in the workers’
compensation fund. Despite Dr. Jones’s deposition being inadmissible at trial, Dr.
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Jones’s deposition led to Wasinski presenting another physician’s testimony, Dr.
Egan, at trial with respect to the issue of Wasinski’s depression. Ultimately, the
jury found that the depression was a sufficient basis for Wasinski to participate in
the workers’ compensation fund. Thus, Dr. Jones’s deposition was instrumental in
Wasinski’s preparation and presentation of her claim for depression at trial, and
therefore we find that it was reasonable and within the trial court’s discretion to
have allowed for the reimbursement expenses concerning Dr. Jones’s deposition.
{¶18} In addition, we also believe that reimbursing Wasinski for Dr.
Grubb’s discovery deposition was reasonable under the circumstances. Despite
BWC’s assertion that Dr. Grubb’s discovery deposition was properly excluded as
evidence at trial, Civ.R. 32, which governs the use of depositions in all court
proceedings, does not distinguish between trial and discovery depositions.
Beckman v. Yellow Freight Sys., Inc. (Feb. 12, 1997), 9th Dist. No. 17845, at *3,
citing Van Meter v. Coates (Aug. 12, 1992), 9th Dist. No. 91CA005220. See also
Coxson v. Miller (Mar. 26, 1999), 11th Dist. No. 97-T-0179, 1999 WL 266691, at
*2, citing Dodson v. Oclese (Sept. 30, 1987), 11th Dist. No. 3733, 1987 WL
18028, at *5. The rule specifically provides that a deposition of a witness “may be
used by any party for any purpose” so long as the witness is a medical expert.
(Emphasis added.) Civ.R. 32(A)(3)(e). Dr. Grubb was a medical expert;
therefore, filing Dr. Grubb’s discovery deposition in anticipation of using it at the
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trial was both reasonable and permissible under the civil rules. Therefore, it was
likewise reasonable for the trial court to have granted the reimbursement of its cost
considering the deposition costs were incurred for the purposes of presenting
Wasinski’s appeal. See Bramely v. Painesville (Dec. 26, 1997), 11th Dist. No. 97-
L-038, at *4 (finding that the trial court erred in not awarding workers’
compensation claimant costs for the discovery deposition of a medical expert,
since it was arguably incurred for the purposes of advancing claimant’s appeal).
{¶19} Overall, in light of the Ohio Supreme Court’s broad interpretation of
the phrase “cost of any legal proceedings” in R.C. 4123.512(F), we believe that it
was reasonable, and certainly within the trial court’s discretion, to have allowed
the costs associated with Dr. Jones’s deposition and Dr. Grubb’s discovery
deposition to be reimbursed, since they were directly related to Wasinski’s appeal
and thus could be considered as “cost[s] of any legal proceedings” under R.C.
4123.512(F).
{¶20} However, despite our position above, we believe that it was
unreasonable to have allowed Wasinski to be reimbursed for her attorney’s
mileage to and from the court of appeals for purposes of attending oral arguments
for the prior appeal because that expense was not a cost directly related to
Wasinski’s appeal but rather an everyday cost of doing business. Furthermore,
while we acknowledge that this court was willing to expand the Supreme Court’s
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holding in Kilgore in our recent decision of Ley v. Procter & Gamble Co., 3d Dist.
No. 1-09-41, 2010-Ohio-834, we find that Ley is distinguishable from the
circumstances in this case.
{¶21} As we stated above, in Kilgore, the Supreme Court expanded the
phrase “cost[s] of any legal proceedings” and held that “an attorney’s travel
expenses incurred in taking a deposition of an expert are a reimbursable ‘cost of
any legal proceedings’ under R.C. 4123.512(F).” 92 Ohio St.3d 184, at syllabus.
In Ley, this court affirmed a judgment reimbursing a claimant for her attorney’s
travel expenses for taking depositions even though the attorney was an out-of-
town attorney and the depositions were taken in the county where the action was
filed. 2010-Ohio-834, ¶ 52. Specifically, this court stated:
[W]e do not believe that the Court’s holding in Kilgore is as narrow
as P & G suggests. We believe that the Court’s rationale in Kilgore,
just like its rationale in all of its recent cases dealing with R.C.
4123.512(D) and (F), was to allow those expenses that are directly
related to a claimant’s appeal that an attorney would traditionally
charge to clients and that would also have a proportionally serious
impact on the claimant's award. Kilgore, 92 Ohio St.3d at 187. We
believe that it was reasonable for the trial court to have believed that
Ley’s out-of-town attorney’s mileage expenses to attend the
depositions of Ley’s witnesses did bear a direct relationship to Ley’s
appeal and would have a serious impact on her award if not granted.
Id. Nevertheless, we find the circumstances in this case to be distinguishable from
the facts in Ley. Even though we stated that we did not believe that the court’s
holding in Kilgore was as narrow as the employer suggested and that it was
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reasonable to have allowed plaintiff’s out-of-town attorney to have mileage
expenses for attending depositions of witnesses, extending Kilgore’s ruling in Ley
was logical, since both cases involved attorney’s mileage expenses concerning the
preparation of the claimant’s appeal (i.e. travel expenses to take witnesses’
depositions). See Ley, 2010-Ohio-834, at ¶ 52; Kilgore, 92 Ohio St.3d at 188.
Here, Wasinski’s attorney is asking BWC to reimburse him for mileage to our
courthouse for oral arguments with respect to the first appeal. As the Supreme
Court itself stated in Kilgore, R.C. 4123.512(F) “does not allow reimbursement for
everyday costs of doing business,” and we fail to see how an attorney traveling to a
courthouse would be anything other than an everyday cost of doing business rather
than one directly related to the claimant’s appeal. See Kilgore, 92 Ohio St.3d at
188.
{¶22} Furthermore, at the time Wasinski filed her first complaint with the
trial court, R.C. 4123.512(F) explicitly prescribed that an attorney may collect fees
in an amount of up to $2,500, and in this particular case, the trial court awarded
$2,500 in fees to Wasinski’s attorney. Besides the statutory fee language and the
Ohio Supreme Court’s ruling in Kilgore, which again only pertained to travel
expenses to and from depositions in preparation of a claimant’s appeal, no other
miscellaneous expenses, such as an attorney’s mileage to a courthouse, have been
provided for in the statute. Thus, absent express statutory authority to the
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contrary, this court is unwilling to “‘read into a statute something that cannot
reasonably be implied from the statute’s language.’” Breidenbach v. Conrad
(1997), 122 Ohio App.3d 640, 645-646, 702 N.E.2d 509, quoting State ex rel.
Williams v. Colasurd (1995), 71 Ohio St.3d 642, 644, 646 N.E.2d 830, citing
Szekely v. Young (1963), 174 Ohio St. 213, 188 N.E.2d 424, paragraph two of the
syllabus.
{¶23} Therefore, we find that the reimbursement of mileage to our
courthouse for Wasinski’s attorney for purposes of oral arguments in the first
appeal was unreasonable because it was an everyday cost of doing business and
not one “directly related to the claimant’s appeal.”
{¶24} Therefore, BWC’s first and second assignments of error are
overruled, and BWC’s third assignment of error is sustained.
{¶25} Having found no error prejudicial to the appellant in the particulars
assigned and argued with respect to appellant’s first and second assignments of
error, we affirm the judgment of the trial court. However, having found error
prejudicial to the appellant in the particulars assigned and argued with respect to
appellant’s third assignment of error, we reverse the judgment of the trial court,
and we remand the cause for further proceedings consistent with this opinion.
Judgment affirmed in part
and reversed in part,
and cause remanded.
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ROGERS and SHAW, JJ., concur.
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