Lead Opinion
{¶ 3} On or about May 6, 2004, Azbell moved to amend his Workers' Compensation participation to include additional allowances for left rotator cuff tendonitis and the aggravation of pre-existing acromioclavicular arthritis. On June 3, 2004, the BWC granted Azbell participation for the additional allowances. The amendment was affirmed by the Industrial Commission. Thereafter, Newark filed a *3 second appeal in the Fairfield County Court of Common Pleas, appealing Azbell's additional allowance for left shoulder tendonitis and the aggravation of pre-existing acromioclavicular arthritis.
{¶ 4} On April 27, 2005, pursuant to R.C.
{¶ 5} On October 31, 2006, a jury was impaneled to determine whether Azbell was eligible for Workers' Compensation benefits. During the trial, and in support of the multiple claimed injuries, Azbell introduced the video taped testimony of his medical expert, Dr. Lowery.
{¶ 6} On November 1, 2006, the jury returned a verdict finding Azbell eligible to participate in the Workers' Compensation fund for the condition of cervical strain but denied his request for participation for left shoulder strain, left shoulder tendonitis and the aggravation of pre-existing acromioclavicular arthritis. On that date, counsel for appellant told the trial court that he would draft an entry which dealt with costs.
{¶ 7} On December 7, 2006, Newark, a successful litigant on three of the four claims, filed a motion for the taxation of costs with a proposed judgment entry. This was filed more than a month after the trial was complete. At that time no proposed judgment entry had been filed with the court by appellant. In the motion, Newark set out the costs for which reimbursement was sought and supported the request with copies of invoices. *4 In addition, the motion was accompanied by a detailed memorandum in support. In the memorandum in support the appellee stated in pertinent part as follows:
{¶ 8} "In his submitted judgment entry, Plaintiff proposes reimbursement from Newark Group for the full amount of the Dr. Lowery's fee for the trial deposition in the amount of $575.00; reimbursement for a copy of both stenographic and videographic transcripts of Dr. Lowery's trial deposition in the amount of $770.00; stenographic transcript of Dr. David in the amount of $95.65; filing fees; and various other miscellaneous expenses. Plaintiff also seeks attorney fees pursuant to R.C.
{¶ 9} "Conversely, in its judgment entry, Newark Group proposes that Plaintiffs costs associated with either the stenographic or videographic deposition transcripts of Dr. Lowery, Dr. David and Dr. Finneran be assessed against the Defendant Administrator, Bureau of Workers' Compensation in light of the jury verdict. Additionally, Newark Group is accountable for only a portion of the fees associated with Dr. Lowery's trial deposition, namely those associated with the `cervical strain' in the amount of $150.00. Newark agrees to the payment of attorney fees to Plaintiff's counsel, in the amount of $2,500.00 pursuant to R.C.
{¶ 10} On December 8, 2006, Azbell, being a successful claimant on one of the four claims, also filed a motion to assign costs and expenses and requested a hearing. Azbell's motion to assign costs did not include a proposed judgment entry or any documentation in support of his costs associated with the litigation.
{¶ 11} On December 8, 2006, the trial court adopted Newark's proposed judgment entry. Pursuant to the entry, the trial court awarded to Newark and against the Bureau of Workers' Compensation, eight hundred and fifty seven dollars and eighty cents ($857.80) in costs, and further awarded Azbell zero dollars ($0.00) in costs. The trial court also ordered each party to bear its/his own court costs and ordered Newark to pay Azbell's attorney's fees in the amount of two thousand and five hundred ($2,500.00) dollars.
{¶ 12} On December 13, 2006, Azbell filed a "Motion in Support of Expenses and Costs". In the motion Azbell listed the following costs for which he sought reimbursement as follows: (1) From the employer: $2,500.00 "for efforts expended in litigation per R.C.
{¶ 13} On December 13, 2006, the trial court issued an entry that stated as follows: *6
{¶ 14} "This matter comes before the Court upon Plaintiffs Motion for a Hearing to Assign Costs and Expenses for Judgment Entry filed on December 8, 2006 and Defendant the Newark Group's Combined Motion for Taxation of Costs filed on December 7, 2006. On December 8, 2006, a Judgment Entry was filed which resolved the pending motions.
{¶ 15} "Upon consideration, therefore, the above Motions are hereby DENIED as moot. With the denial of the above Motions, the Judgment Entry filed on December 8, 2006 is now a final appealable order * * *."
{¶ 16} On January 3, 2007, the trial court issued a Nunc Pro Tunc Judgment Entry which was identical to the December 8, 2006, Judgment Entry except that the Nunc Pro Tunc Judgment Entry did not contain the language from the original December 8, 2006, Judgment Entry which had indicated "approved by and copies to" the parties. The Nunc Pro Tunc Judgment Entry replaced the "approved by and copies to" with "copies to" the parties language.
{¶ 17} Azbell now seeks to appeal from the December 8, 2006, December 13, 2006 and January 3, 2007 (nunc pro tunc), judgment entries, setting forth the following assignments of error:2
{¶ 18} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO AWARD STENOGRAPHIC DEPOSITION COSTS TO APPELLANT ACCORDING TO R.C.
{¶ 19} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO AWARD THE COSTS OF THE TRIAL TO APPELLANT ACCORDING TO R.C. 4321.512(F).
{¶ 20} "III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR FAILING TO GIVE APPELLANT'S COMPLETE JURY INSTRUCTION STATING THAT AN "AGGRAVATION" INCLUDES AN INJURY HAVING SOME REAL ADVERSE EFFECT, EVEN IF THAT EFFECT IS RELATIVELY SLIGHT."
{¶ 22} The decision to grant or deny costs to a successful claimant lies in the trial court's sound discretion. Pritchard v. Administrator,Bureau Workers Compensation, Tuscarawas App. No. 97APPD080053 (April 29, 1988), unreported; Hansford v. Midwest Staff Solutions, Cuyahoga App. No. 87226,
{¶ 23} R.C.
{¶ 24} "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 * * * 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. * * *"
{¶ 25} Newark concedes that pursuant to R.C.
{¶ 26} We do not accept that argument of appellee. Appellee never challenged the amount of appellant's costs to the trial court. In fact, appellee informed the trial court of some of appellant's costs. In appellee's motion filed on December 8, 2006, appellee stated that the appellant requested reimbursement for costs as follows: "the full amount of the Dr. Lowery's fee for the trial deposition in the amount of $575.00; reimbursement for a copy of both stenographic and videographic transcripts of Dr. *9 Lowery's trial deposition in the amount of $770.00; [and the] stenographic transcript of Dr. David in the amount of $95.65."
{¶ 27} Therefore, we find that the trial court abused its discretion in failing to award to appellant the stenographic costs for the depositions of Dr. Lowery and Dr. David as required by R.C.
{¶ 28} For these reasons we hereby sustain appellant's first assignment of error.
{¶ 30} Initially we note that, R.C.
{¶ 31} The decision to grant or deny costs to a successful claimant lies in the trial court's sound discretion. Pritchard v. Administrator,Bureau Workers Compensation, supra; Hansford v. Midwest StaffSolutions, supra. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.Blakemore, supra.
{¶ 32} R.C.
{¶ 33} "[t]he 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."4 See also, Moore v. General MotorsCorp. (1985),
{¶ 34} "Under this section, the costs or fee is recoverable if it is `reasonable litigation expenses that might have the effect of unreasonably dissipating a claimant's award.'" Hansford v. Midwest StaffSolutions, Supra at paragraph 23, citing Kilgore v. ChryslerCorporation,
{¶ 35} In Bulstrom v. Administrator, Bureau Workers'Compensation, Stark App. No. 2004CA00307,
{¶ 36} "Costs" are generally defined as the statutory fees to which officers, witnesses, jurors, and others are entitled for their services in an action and which the statute authorizes to be taxed and included in the judgment. Cave v. Conrad (2002),
{¶ 37} In Moore, the court recognized that as a matter of public policy, the fee paid to an expert in the preparation and giving of a deposition is payable to a successful claimant. Id.,
{¶ 38} In Bulstrom v. Administrator, Ohio Bureau of Workers'Compensation, supra, this court examined whether a successful claimant was entitled to a dual recovery for both stenographic deposition costs and videotape deposition costs. This *12
Court followed the decision in State ex rel. Williams v. Colasurd,
{¶ 39} In this case, appellant characterizes himself as a successful claimant, because he was successful in being awarded participation for cervical strain, one of his four claims. Appellee claims to be a successful litigant because appellant was denied participation for three of his four claims including, left shoulder strain, left shoulder tendonitis and the aggravation of pre-existing acromioclavicular arthritis. Appellee is not a claimant.
{¶ 40} Appellee argues that, in accordance with the holding inBooher v. Honda of America Mfg. Inc. (1996),
{¶ 41} In Booher, the Workers' Compensation claimant presented the testimony of two medical experts. One medical expert testified on behalf of the claimant's right to participate for a lumbar sprain. The second expert witness testified on behalf of the claimant's right to participate for a herniated disc. After the presentation of evidence the claimant was successful in asserting her right to participate in the Workers' Compensation Fund for the lumbar sprain but was unsuccessful with regard to her second claim for a herniated disc. After a hearing on the taxation of costs, the trial court apportioned expert fees, by each individual expert, and in accordance with each party's success in the litigation. Because the medical expert witness fees were easily distinguishable with regard to each claim the court denied the claimant reimbursement for the medical expert witness fees for her unsuccessful claim, (i.e. the herniated disc). Therefore, it appears that based on the circumstances of the claimant in the Booher case, the court found the litigation expenses to be clearly distinguishable and easily apportioned based on a claimant's success in the litigation. Furthermore, the Boohler court did not address reasonable litigation expenses such as the filing fee and juror fees.
{¶ 42} In this case, unlike Booher, appellant only presented the videotaped testimony of one medical expert, Dr. Lowery. Dr. Lowery testified in support of all four of Azbell's claims for participation. Dr. Lowery's testimony included a history of appellant's medical diagnosis and treatment, as well as an expert opinion as to whether the injuries, and the aggravation of the pre-existing injuries, were work related. Dr. Lowery's expert medical testimony stemmed from one course of interrelated, ongoing medical treatment. It would be difficult, if not impossible for the trial court to determine what percentage of *14 the doctor's testimony was relevant to a particular injury. It would be equally difficult to then determine a percentage of apportionment for medical expert fees and costs.
{¶ 43} Accordingly, based upon the circumstances present in this case, and construing the Workers' Compensation statute in favor of the claimant as being a "successful claimant" entitled to reimbursement of reasonable litigation fees and expenses, we find that the trial court erred in failing to award to appellant, Dr. Lowery's expert witness fee.
{¶ 44} We further find that appellant is entitled to an award for either the stenographic deposition costs or the videotape deposition costs for the same witness, but not both.
{¶ 45} With regard to the costs of the action, the statute states that a successful claimant shall be awarded "[t]he costs of any legal proceedings authorized by this section," (i.e. 4123). R.C. 4123.51.2(F). The record indicates that appellant's filing fees and other court costs for the case sub judice would have been the same for one claim as they were for four. Additionally, the decision that appellant could participate in the Workers' Compensation Act for cervical strain, made him a successful claimant entitled to full reimbursement for all reasonable costs associated with the litigation. We believe that this conclusion is in accordance with the philosophy that the workers' compensation statutes are to be liberally construed in favor of the claimant. See R.C.
{¶ 46} For these reasons we find that the trial court abused its discretion in failing to award to appellant the reasonable litigation expenses which include any court costs for the jury that was impaneled on October 31, 2006, and one hundred and thirty dollars ($130.00) for the trial court's filing fee. *15
{¶ 47} Accordingly appellant's second assignment of error is well taken and is hereby sustained.
{¶ 49} A trial court is required to charge the jury with instructions that are an accurate and complete statement of the applicable law.Marshall v. Gibson (1985),
{¶ 50} A charge to the jury should be a plain, distinct, and unambiguous statement of the law that is applicable to the case, made before the jury, by the proof adduced." Marshall v Gibson,
{¶ 51} A trial court is not required to give a proposed instruction in the precise language provided, even if the proposed instruction states an applicable rule of law. Henderson v. Spring Run Allotment (1994),
{¶ 52} A trial court's failure to give a proposed jury instruction is only reversible error if the defendant demonstrates that the trial court abused its discretion, and that the defendant was prejudiced by the court's refusal to give the proposed instruction. Jaworowski v. Med.Radiation Consultants (1991),
{¶ 53} An abuse of discretion connotes more than an error of law or judgment; rather, it suggests that the lower court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, supra. When applying the foregoing standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio StateMed. Bd. (1993),
{¶ 54} In this case, the trial court instructed the jury in accordance with 3 O.J.I. 365.13 as follows: "Employers take their employees as they find them and assume the risk of having an employee's pre-exiting condition made worse by some injury which would not hurt or bother a perfectly healthy person. It is not necessary for the employee to prove the aggravation is substantial in order to participate in the Workers' Compensation Fund."
{¶ 55} The trial court declined to supplement the language pursuant to the footnote in Schell v. Globe Trucking, Inc. (1990),
{¶ 56} Upon a review, we find that the Schell case involved a dispute over whether the aggravation of a pre-existing injury must be substantial in order for a claimant to participate in Workers' Compensation Fund. The Schell court held in the syllabus that "a workers' compensation claimant who has proven a work-related aggravation of a pre-existing condition is not required to prove that the aggravation is substantial in order to be entitled to a determination of the extent of his participation in the State Insurance Fund." This holding is essentially quoted in the language of 3 O.J.I. 365.13 which was given as the jury instruction in this case. The entire footnote inSchell reads, "We assume that an `aggravation' of a pre-existing condition that was so negligible as not to be of any consequence would not be what the General Assembly had in mind by the term `injury' for workers' compensation purposes. However, an aggravation of a pre-existing condition having some real adverse effect, even if that *18
effect was relatively slight, would be within our understanding of the definition of `injury' for this purpose." We find that the second sentence in this footnote does not make a significantly different statement than the one the Ohio Supreme Court made in the syllabus. In addition, the second sentence of the footnote was made to elaborate the first sentence of the footnote. Essentially, we conclude that the footnote language is not as different from appellant's proposed jury instruction as to cripple the entire charge. See, Walker v. Conrad, Montgomery App. No. 19704,
{¶ 57} Therefore, we conclude that appellant's proposed jury instruction would not have provided the jury with a more complete instruction of the applicable law. For this reason we do not find that the instruction was prejudicial and/or that the trial court abused its discretion in instructing the jury pursuant to the standard Ohio Jury Instructions.
{¶ 58} In addition, Rep. R. 1(B)(2) of the Ohio Supreme Court Rules for the Reporting of Opinions states, "If there is disharmony between the syllabus of an opinion and its text or footnotes, the syllabus controls." The version of this rule in effect prior to May 1, 2002, read, "The syllabus of a Supreme Court Opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the court on adjudication." In other words, if there is a substantive difference between what the footnote says and what the syllabus says, the syllabus controls.
{¶ 59} Accordingly, appellant's third assignment of error is hereby overruled.
{¶ 60} The Judgment of the Fairfield County Court of Common Pleas is affirmed as to the trial court's granting of and denial of appellant's right to participate in the *19 benefits of the Ohio Workers' Compensation Act. The judgment of the Fairfield County Court of Common Pleas is reversed as to the allocation of the costs. The matter is hereby remanded for further proceedings in accordance with this opinion and applicable law.
Gwin, P.J. concur and Hoffman, J. concurs in part and dissents in part
Notes
Concurrence Opinion
{¶ 61} I concur in the majority's analysis and disposition of Appellant's first and second assignments of error. I respectfully dissent from the majority's analysis and disposition of Appellant's third assignment of error.
{¶ 62} Unlike the majority, I believe there is a significant difference between a non-substantial aggravation of a pre-existing condition and an aggravation of a preexisting condition having some real adverse effect, even if that effect was relatively slight.5 Although concededly difficult, if not outright impossible to quantify, I, nonetheless, believe there is a substantive difference. Applying the instruction given by the trial court, a jury might reasonably find an aggravation of a pre-existing condition, although it had a relatively slight adverse effect, still could fall short of being "not substantial". I find a jury would be more apt to find an aggravation of a pre-existing condition which produces a relatively slight adverse effect than it would to find an aggravation of that pre-existing condition "not substantial". Accordingly, I would also sustain Appellant's third assignment of error.