CAVE, APPELLEE, v. CONRAD, ADMR., APPELLANT, ET AL.
No. 00-2083
Supreme Court of Ohio
Submitted December 11, 2001—Decided February 27, 2002.
94 Ohio St.3d 299 | 2002-Ohio-793
APPEAL from the Court of Appeals for Pike County, No. 00CA645.
Workers’ compensation—Pursuant to
SYLLABUS OF THE COURT
Pursuant to
DOUGLAS, Acting C.J.
{¶ 1} On March 6, 1985, аppellee, Yolanda Cave, suffered an industrial injury during the course of and arising from her employment. The Industrial Commission allowed appellee’s initial claim for injuries sustained to her neck and back. On May 13, 1996, appellee sought to reactivate her workers’ compensation claim by filing for recognition of an additional medical condition, disc herniation. The Industrial Commission denied this additional condition.
{¶ 2} Pursuant to
{¶ 3} The trial court also permitted apрellee to file a motion to tax as costs certain expenses for videotaping the depositions of Drs. Hawk and Kelly. Following a hearing on the motion, the trial court ordered the videotaped depositiоn expenses to be paid by the bureau as “cost of legal proceedings” pursuant to
{¶ 5} Both the trial court and the court of appeals held that
{¶ 6} Appellant questions the propriety of assessing “dual payments” for both videotaped deposition costs and stenographic deposition сosts. Appellant contends that neither the bureau nor a self-insured employer should ever be responsible for paying both. We disagree.
{¶ 7}
{¶ 8}
“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.”
{¶ 9} In Akers v. Serv-A-Portion, Inc. (1987), 31 Ohio St.3d 78, 31 OBR 190, 508 N.E.2d 964, the court interpreted paragraph six of former
{¶ 10}
“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 employеr or the commission if the commission or the administrator rather than the employer contested the right of the claimant to participate in the fund.”
{¶ 11} This court has on prior occasions concluded that the phrase “cost of any legal proceedings” in
{¶ 12} Central to the court’s dispositions in Moore and Kilgore was the rationale that statutes providing for reimbursement of costs to successful claimants in workers’ compensation appeals are “designed to minimize the actual expеnse incurred by an injured employee who establishes his or her right to participate in the fund.” Moore, 18 Ohio St.3d at 261-262, 18 OBR at 316, 480 N.E.2d at 1103. Accordingly, in enacting statutes such as
{¶ 13} Appellant also argues that costs taxable to the nonprevailing party are allowed only by authority of statute. Appellant contends that according to Williamson v. Ameritech Corp. (1998), 81 Ohio St.3d 342, 691 N.E.2d 288, there is no statute allowing deposition expenses to be taxed and included in the judgment.
{¶ 14} It is true that “[t]his court has consistently limited the
{¶ 15} Notwithstanding, we find this argument of appellant not to be well taken. What appellant fails to recognize is that a distinct difference exists bеtween civil cases in general and those involving workers’ compensation claims. The court noted in Moore that compared to a tort action where more than mere economic losses may be sought, “[u]nder the terms of participation in the State Insurance Fund, a claimant may recover relatively modest amounts.” Moore, 18 Ohio St.3d at 262, 18 OBR at 316, 480 N.E.2d at 1103. Thus, because a workers’ compensation claim is confined to recovery of only part of a claimant’s economic loses, and “costs” are expressly provided for in
{¶ 16} Moreover, the Ohio Rules of Superintendence have made videotaped deposition costs an exception to the long-standing principle that costs are allowed solely by statutory authority. Wе have previously recognized that videotaped depositions are governed by the Ohio Rules of Superintendence. State ex rel. Williams v. Colasurd (1995), 71 Ohio St.3d 642, 645-646, 646 N.E.2d 830, 833, citing Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 216, 21 OBR 228, 231, 487 N.E.2d 347, 349. In Williams, the court found that former C.P.Sup.R. 12(D)(1) allowed for various expenses associatеd with videotaped depositions and specified “by whom the costs are to be assumed.” Id. at 645, 646, 646 N.E.2d at 833; see 59 Ohio St.2d xxxvii for former C.P.Sup.R. 12. Similar provisions are now in Sup.R. 13,1 which provides, “The reasonable expense of recording testimony оn videotape, the expense of playing the videotape recording at trial, and the expense of playing the videotape recording for the purpose of ruling upon objections shall be allocated as costs in the proceeding in accordance with Civil Rule 54.”2 Sup.R. 13(D)(2).
{¶ 17} Furthermore, in Barrett v. Singer Co. (1979), 60 Ohio St.2d 7, 14 O.O.3d 122, 396 N.E.2d 218, the court held, “The expense of videotape depositions not used as evidence at trial is to be borne by the party taking such depositions and not taxed as costs in the action.” (Emphasis added.) Id. at syllabus. See, also, Fairchild v. Lake Shore Elec. Ry. Co. (1920), 101 Ohio St. 261, 128 N.E.2d 168, paragraph three of the syllabus (“Either pаrty may take depositions while error proceedings are pending in a reviewing court to reverse the judgment of the trial court. If such depositions are not used, the expense of taking them cannot be taxed in the сosts of the case.”). In Barrett, the court noted that “the judicial decisions prior to the adoption of the Ohio Rules of Superintendence reveal that the expense of depositions taken de bene esse is to be taxed as costs only if the depositions were used at trial, unless there are overriding considerations.” (Emphasis sic.) Id. at 9, 14 O.O.3d at 123, 396 N.E.2d at 219.
{¶ 18} The videography expenses now in dispute concern the videographer’s attendance and the cost of the videotape. The trial court was correct to tаx costs of the videotaped deposition against the bureau. Sup.R. 13(D)(1) does provide, however, that “[t]he expense of videotape as a material shall be borne by the proponent.” Thus, the trial court errеd in including in the award the cost of the videotape as a material.
{¶ 19} Accordingly, we hold that pursuant to
Judgment affirmed in part, reversed in part and cause remanded.
RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in syllabus and judgment.
MOYER, C.J., not participating.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Eric S. Bravo, for appellee.