Breidenbach v. Conrad

• Decision Date: 30 October 1997
• Docket Number: No. 13-97-6,13-97-6
• Parties: BREIDENBACH, Appellant, v. CONRAD, Admr., et al., Appellees. *
• Court: Ohio Court of Appeals

Page 640

122 Ohio App.3d 640

702 N.E.2d 509

BREIDENBACH, Appellant, v. CONRAD, Admr., et al., Appellees. ^*

No. 13-97-6.

Court of Appeals of Ohio,

Third District, Seneca County.

Decided Oct. 30, 1997.

Stewart Jaffy & Associates Co., L.P.A., Stewart Jaffy, Marc J. Jaffy and Erick Bravo, Columbus, for appellant.

Betty D. Montgomery, Attorney General, and Reeve Kelsey, Assistant Attorney General, Toledo, for appellee James Conrad, Administrator, Bureau of Workers' Compensation.

Thompson Hine & Flory, L.L.P. and Scott Armour, Columbus, for appellee American Standard, Inc.

EVANS, Presiding Judge.

Robert E. Breidenbach ("appellant") appeals from a judgment of the Common Pleas Court of Seneca County denying him recovery of certain costs in connection with his workers' compensation claim.

After initially receiving an adverse decision from the Industrial Commission of Ohio on his workers' compensation claim, Breidenbach appealed his case to the Court of Common Pleas of Seneca County under the authority of R.C. 4123.512. A trial ensued and Breidenbach's right to participate in the workers' compensation fund for a disk herniation was upheld. No appeal was taken from the judgment entry granting Breidenbach the right to participate in the fund.

Shortly thereafter, Breidenbach filed a motion for taxation of costs, seeking reimbursement from his employer pursuant to R.C. 4123.512(D) and (F) for certain costs and expenses related to his workers' compensation claim. Specifically, Breidenbach requested payment for the following: $875 in fees for his expert witness, Dr. Gase; $459 for a stenographic copy of Dr. Gase's deposition; $300.03 for a videotaped copy of Dr. Gase's deposition; $151.80 for a copy of the deposition transcript of opposing parties' expert witness, Dr. Riethmiller's; and $67.50 for attorney travel expenses. It was not disputed that Breidenbach was entitled to the $875 in expert witness fees and the $151.80 for the cost of Dr. Reithmiller's deposition transcript. The trial court allowed these costs. However, the remaining costs of videotaped and stenographic copies of Dr. Gase's deposition and attorney travel fees were challenged by Breidenbach's employer, American Standard, Inc., and the Administrator of the Bureau of Workers' Compensation ("appellees"). In accordance with the reasoning espoused in George v. Administrator (1997), 120 Ohio App.3d 106, 696 N.E.2d 1101, the trial court granted Breidenbach only one of the requested costs of deposition, $459 for stenographic costs, ¹ and denied recovery for the videotape expenses. The trial court also denied Breidenbach recovery of attorney travel expenses.

Breidenbach now challenges the trial court's decision denying these costs, asserting two assignments of error.

Assignment of Error I

"The trial court erred in not awarding Mr. Breidenbach the costs of both the videotaped and stenographic version of Dr. Andre Gase's deposition."

Assignment of Error II

"The trial court erred in denying Mr. Breidenbach costs for his counsel's travel to the depositions of Drs. Gase and Riethmiller."

In his first assignment of error, appellant contends that he should be able to recover costs for both the videotape and stenographic versions of Dr. Gase's deposition under either R.C. 4123.512(D) as a cost of deposition or (F) as a cost of litigation.

R.C. 4123.512 contains two provisions for a claimant to recoup costs of litigation which are relevant to appellant's assignments of error. The narrower provision is R.C. 4123.512(D), which provides:

"* * * 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 * * *. The bureau of workers' compensation shall pay the cost of the deposition filed in court and of copies of the 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. * * *"

The Supreme Court of Ohio in Akers v. Serv-A-Portion (1987), 31 Ohio St.3d 78, 31 OBR 190, 508 N.E.2d 964, syllabus, has interpreted this subsection of R.C. 4123.512 to provide that stenographic and reproduction costs of depositions be paid from the Industrial Commission Surplus Fund whether or not the claimant successfully establishes a right to participate under the Workers' Compensation Act. The fund can then be reimbursed by the employer if the claimant is successful in his action, as in this case. The intent behind R.C. 4123.512(D) was to "relieve a claimant from additional charges that are required when testimony is presented by deposition, rather than by a witness in court." Perry v. Connor (1983), 8 Ohio App.3d 283, 284, 8 OBR 376, 378, 456 N.E.2d 1340, 1342; but, cf., Moore v. Gen. Motors Corp. (1985), 18 Ohio St.3d 259, 18 OBR 314, 480 N.E.2d 1101.

Moreover, the Supreme Court of Ohio has held that the "cost of deposition" clause in this subsection ² is limited in that it does not provide for payment of multiple forms of deposition testimony. State ex rel. Williams v. Colasurd (1995), 71 Ohio St.3d 642, 646 N.E.2d 830. Following the result suggested in State ex rel. Hakos v. Colasurd (Dec. 28, 1993), Franklin App. No. 92AP-1151, unreported, 1993 WL 540288, the Supreme Court agreed that " 'a claimant initially has the option of using a written deposition or videotape. The costs of one of these forms of deposition is reimbursable.' " (Emphasis added.) Id. at 644, 646 N.E.2d at 832, quoting Hakos, supra.

Reimbursement for other costs of litigation are provided for in R.C. 4123.512(F); however, unlike R.C. 4123.512(D), recovery of these costs is entirely conditioned on the claimant's success in establishing his right to participate in the fund. R.C. 4123.512(F) states:

"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 twenty-five hundred dollars."

Under this subsection, additional costs such as expert witness fees and attorneys fees have been held recoverable. Moore, 18 Ohio St.3d 259, 18 OBR 314, 480 N.E.2d 1101.

In the instant case, appellant was successful in asserting his right to participate in the Workers' Compensation Fund. Therefore, appellant is entitled to collect, under R.C. 4123.512(F), the "cost of any legal proceeding" associated with that claim in addition to the more limited "cost of deposition" recovery under R.C. 4123.512(D).

It is appellant's contention that because Seneca County Loc.R. 16.01 required him to file a transcribed version of Dr. Gase's testimony in addition to the videotape used at trial, his costs of deposition were uncontrollably increased. Therefore appellant argues, he should be permitted to recover both his stenographic and videographic expenses under R.C. 4123.512(D) or, in the alternative, under R.C. 4123.512(F) as a cost of a legal proceeding.

The issue we first address is whether additional deposition costs required under local court rules qualify as a "cost of deposition" under R.C. 4123.512(D). When construing the cost reimbursement provisions contained in R.C. 4123.512, the Supreme Court has often quoted the axiom that " ' "[c]osts" are not synonymous with expenses unless expressly made so by statute.' " Colasurd, 71 Ohio St.3d at 643, 646 N.E.2d at 832, quoting Benda v. Fana (1967), 10 Ohio St.2d 259, 263, 39 O.O.2d 410, 413, 227 N.E.2d 197, 201; see, also, Moore, 18 Ohio St.3d at 260, 18 OBR at 315-316, 480 N.E.2d at 1102; Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d 925; State ex rel. Michaels v. Morse (1956), 165 Ohio St. 599, 607, 60 O.O. 531, 535, 138 N.E.2d 660, 666 ("the subject of costs is one entirely of statutory allowance and control"). We agree with the court in George v. Administrator, supra, which states that "the mere fact that the costs of preparing a transcript was an expense required by local rule does not necessarily mean that it is a 'cost' that may be recovered under the statute." 120 Ohio App.3d at 109, 696 N.E.2d at 1103. Decisions regarding the presentation of witness testimony necessarily involve the contemplation of varying levels of expense. We recognize that it was within appellant's discretion to determine which medium to use to present the testimony of Dr. Gase, be it live testimony, deposition transcript, deposition videotape with accompanying transcript, or some combination thereof. Because appellant preferred, for whatever reason, to present Dr. Gase's deposition testimony in videotape format (over a transcript format alone), Loc.R. 16.01 imposed the additional obligation and expense of also providing a transcript to the court. Thus, appellant, through his election, voluntarily agreed to incur the additional transcript expense imposed by Loc.R. 16.01. As the Supreme Court has made clear in Colasurd, each deposition format or combination of formats is not necessarily compensable under R.C. 4123.512(D). Rather, only one form of deposition costs is compensable under R.C. 4123.512(D). Colasurd, 71 Ohio St.3d at 644, 646 N.E.2d at 832-833. Consequently, we find no error in the trial court's judgment allowing appellant recovery of the cost of the deposition transcript under R.C. 4123.512(D) and denying appellant recovery of the cost of the deposition videotape.

Nor are we persuaded that costs incurred in connection with depositions that are not covered under R.C. 4123.512(D) can be collected...