Keener v. Buehrer

• Decision Date: 22 September 2017
• Docket Number: C.A. CASE NO. 27537
• Citation: 2017 Ohio 7749
• Parties: DARRELL KEENER Plaintiff-Appellant v. STEPHEN BUEHRER, ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION, et al. Defendants-Appellees
• Court: Ohio Court of Appeals

2017 Ohio 7749

DARRELL KEENER Plaintiff-Appellant v. STEPHEN BUEHRER, ADMINISTRATOR,BUREAU OF WORKERS' COMPENSATION, et al. Defendants-Appellees

C.A. CASE NO. 27537

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

September 22, 2017

T.C. NO. 16-CV-2562

(Civil Appeal from Common Pleas Court)

OPINION

GARY D. PLUNKETT, Atty. Reg. No. 0046805, 3033 Kettering Blvd., Point West, Suite 201, Dayton, Ohio 45439 Attorney for Plaintiff-Appellant

DAVID C. KORTE, Atty. Reg. No. 0019382 and MICHELLE D. BACH, Atty. Reg. No. 0065313 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 West First Street, Suite 200, Dayton, Ohio 45402 Attorneys for Defendant-Appellee Northmont City School District

DONOVAN, J.

{¶ 1} This matter is before the Court on the April 12, 2017 Notice of Appeal of Darrell Keener. Keener appeals from the Final Judgment Entry of the trial court, following a jury trial, reflecting the jury's verdict that Keener has the right to participate in the workers' compensation system for the condition of left inguinal hernia in Claim No. 14-858351, and further ordering the Northmont City School District ("Northmont") to pay Keener "and his attorneys reimbursement for litigation expenses of $2,838.82 and attorney fees of $4,200.00, with interest at the statutory rate from the date of this Final Judgment Entry." At issue herein are the cost of the video deposition of Dr. James deCaestecker, Keener's expert witness, which the trial court taxed to Keener, and the cost of the deposition transcript of Dr. Seth Vogelstein, the expert witness for Northmont City School District, which the trial court also taxed to Keener. For the reasons set forth herein, the judgment of the trial court as to the cost of deCaestecker's video deposition is reversed, and the judgment of the trial court as to the cost of Vogelstein's deposition transcript is affirmed.

{¶ 2} Keener filed his Notice of Workers' Compensation Appeal on May 20, 2016, in the trial court. After trial, Keener filed, on February 17, 2017, a "Motion for Order on Plaintiff's Application for Award of Attorney's Fees and Expenses." The Motion provides that Keener "is entitled to a recovery of his expenses in the amount of $3,246.82 and his attorneys are entitled to a fee of $4,200.00." According to Keener, awarding him "all of the expenses he has incurred in the prosecution of his successful workers' compensation case furthers the stated policy of the Legislature - that injured workers' are entitled to be fully compensated for all expense they have incurred in successfully asserting their right to participate in the workers' compensation system." Keener argued that the "Legislature, in enacting the expense-reimbursement provision of R.C. 4123.512 was mindful of the fact that injured workers are often not in a position to absorb the cost of establishing their right to participate in the workers' compensation system," and that if employers are unsuccessful in litigating a workers' compensation matter, "they are responsible for the successful claimant's expenses in proving their right." Attached in part is an "Application for Award of Attorney Fees and Expenses," as well as a "List of Expenses," an "Itemized Statement of Attorney Fees," and the Affidavit of Gary D. Plunkett. The "List of Expenses" includes: $205.00 for "Accurate Legal Videos; Videographer Fee for Dr. [deCaestecker] Deposition," and $203.00 for "Mike Mobley Reporting; Deposition Transcript of Dr. Vogelstein." Keener directed the trial court's attention to Kilgore v. Chrysler Corp., 92 Ohio St.3d 184, 749 N.E.2d 267 (2001), and this Court's decision in Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871, 2003-Ohio-6673.

{¶ 3} On February 28, 2017, "Defendant, Northmont City Schools', Memorandum in Opposition to Plaintiff's Motion for Order on Plaintiff's Application for Award of Attorney Fees and Expenses" was filed. Therein, Northmont noted that it did not object to awarding Keener's counsel fees in the amount of $4,200.00, but it objected to the payment of $205.00 for the videographic expense of the deposition of Dr. deCaestecker, the payment of $203.00 for a certified copy of Dr. Vogelstein's deposition transcript, and the payment of $272.65 for a certified copy of Keener's deposition transcript. Regarding deCaestecker's deposition, Northmont asserted that Keener "may recover the stenographic or videographic expenses of a physician's videotaped deposition, but not both." Regarding Vogelstein's deposition, Northmont asserted that Keener's expense for obtaining a transcript of Northmont's expert should not be taxed as a cost to Northmont, since the transcript was filed on February 2, 2017, and available through the clerk's office. Northmont asserted that "according to the time records attached to Plaintiff's Motion * * *, Plaintiff's counsel spent no time preparing for trial between the date of Dr. Vogelstein's deposition on January 19 and February 10. By that time, a copy of Dr. Vogelstein's deposition had been available through the clerk for over a week." Therefore, according to Northmont, "Plaintiff's counsel's expense for obtaining a certified copy of the deposition transcript was not a necessary cost." Finally, regarding Keener's deposition, Northmont asserted that the original transcript of Keener's deposition was filed on January 24, 2017, and Keener's counsel's "expense for obtaining a certified copy of the deposition transcript was not a necessary expense." Northmont relied upon State ex rel. Williams v. Colasurd, 71 Ohio St.3d 642, 646 N.E.2d 830 (1995), George v. Administrator, Ohio Bureau of Workers' Compensation, 120 Ohio App.3d 106, 696 N.E.2d 1101 (2d Dist. 1997), and Robinson v. Conrad, 2d Dist. Darke No. 1604, 2003-Ohio-2961.

{¶ 4} Keener filed "Plaintiff's Reply to Defendant's Memorandum in Opposition" on March 6, 2017. Therein he asserted that "more recent case law has expressly held that reasonable videotaped deposition expenses could be awarded to a successful workers' compensation claimant," pursuant to R.C. 4123.512(F), "and notwithstanding that the costs of stenographic transcription of the same deposition are reimbursable under R.C. 4123.512(D)." He argued that "fees for certified copies of the defense expert's deposition transcript and Plaintiff's deposition transcript should also be reimbursed as the 'cost of any legal proceeding' under R.C. 4123.512(F)." According to Keener, these "expenses have a direct relation to a claimant's appeal. The transcripts were reviewed in preparation [for] trial and then relied upon at the trial itself." Keener asserted that Northmont "forced" him "to file an appeal with this Court in order to establish his right to participate in the workers' compensation system," and he "incurred certain expenses, including the fee associated with the videographic deposition and the costs of ordering certified copies of depositions and, as part of the litigation process." Keener directed the trial court's attention in part to Cave v. Conrad, 94 Ohio St.3d 299, 2002-Ohio-793, 762 N.E.2d 991, and Carrigan v. Shaferly Excavating Ltd., 3rd Dist. Seneca No. 13-11-08, 2011-Ohio-5587.

{¶ 5} In its April 10, 2017 order, the trial court determined as follows (footnotes omitted):

R.C. 4123.512 demands that the costs and attorney fees of litigation shall be granted to Plaintiffs in this case. That rationale being "that statutes providing for reimbursement of costs to successful claimants in workers' compensation appeals are designed to minimize the actual expenses incurred by an injured employee who establishes his or her right to participate in the fund. Accordingly, in enacting statutes such as 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 pursuant to" R.C. 4123.512.

However, not every expense is recoverable. The Second District has held that, while "reasonable videotaped deposition expenses" are reimbursable, a claimant may not recover the costs of both the stenographic and videographic expenses of depositions of medical expert witnesses.

In Robinson v. Conrad, [2d Dist. Darke No.1604, 2003-Ohio-2961, ¶ 19-21,] the [Second] District further held that a successful claimant could not recover the costs of a perpetuation deposition transcript when the original was filed with the court, as such cost was merely for convenience and not born of necessity.

Therefore, this Court finds that Plaintiff may not receive compensation for the videographic expense of Dr. [d]eCaestecker's deposition ($205) and Dr. Vogelstein's perpetuation steno transcript ($203).

However, Robinson is silent on the issue of a party's deposition transcript. Given that the rationale of R.C. 4123.512(F) * * * is to minimize Plaintiff's costs incurred for the successful prosecution of his claim, the court awards Plaintiff the costs of his deposition transcript.

The Motion is GRANTED in part and OVERRULED [in] part and Plaintiff is awarded $4200 as and for attorneys' fees and $2838.82 as and for litigation expenses.

( The court indicated in a footnote that $2838.82 represents the amount Keener sought in his motion less the $408.00 for the doctors' video and transcript.)

{¶ 6} Keener asserts one assignment of error herein as follows:

THE TRIAL COURT ERRED IN DENYING ALL OF THE COSTS OF PLAINTIFF'S OUT-OF-POCKET COSTS INCURRED IN CONNECTION WITH THE PREPARATION AND PRESENTATION OF HIS SUCCESSFUL APPEAL UNDER R.C. 4123.512.

{¶ 7} In Bland v. Ryan, 2d Dist. Montgomery No. 24826, 2012-Ohio-3176, this

Court noted that the "decision to grant or deny fees and costs under R.C. 4123.512(F) lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. * * *." Id., ¶ 7. " 'Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. ...