746 N.E.2d 1179 | Ohio Ct. App. | 2000
DECISION AND JUDGMENT ENTRY The Administrator of the Bureau of Workers' Compensation ("BWC") appeals from a judgment entered by the Pike County Court of Common Pleas ordering the BWC to reimburse appellee Yulonda Cave for the videography costs of the depositions of her expert witnesses. The BWC assigns the following error:
The trial court erred in taxing the videographer charges for the video-tape depositions of two physicians, who testified on behalf of the plaintiff-claimant, to the defendant, Administrator of the Bureau of Workers' Compensation under R.C.
4123.512 (F).
For the reasons that follow, we affirm the trial court's judgment. *204
Following the denial of her workers' compensation claim by the Industrial Commission, Ms. Cave filed a notice of appeal with the Pike County Court of Common Pleas. At the subsequent jury trial, Ms. Cave presented the deposition testimony of Drs. Michael Kelly and Thomas Hawk via video. The jury returned a verdict in favor of Ms. Cave and a judgment was entered reflecting this finding. No appeal was taken from the jury's verdict.
The trial court also determined that Ms. Cave was entitled to recover certain costs from the BWC but did not determine whether Ms. Cave could recover the videography costs associated with the depositions of the physicians. Thereafter, Ms. Cave filed a motion requesting $335.50 for the videotaping of Dr. Kelly's deposition and $255.00 for the videotaping of Dr. Hawk's deposition. The BWC contested this motion at a hearing. The trial court ruled that the videotape deposition costs were to be paid by the BWC pursuant to R.C.
R.C.
* * * The bureau of workers' compensation shall pay the cost of the stenographic 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 Ohio Supreme Court interpreted this "cost of the deposition" provision as requiring the BWC to pay the stenographic and reproduction costs of depositions. If the claimant is unsuccessful, the bureau absorbs the costs from its "surplus fund" without charging them against the employee or employer. Only if the claimant successfully establishes a right to participate in the workers' compensation system may the bureau charge the costs against the unsuccessful employer. Akers v.Serv-A-Portion (1987),
R.C.
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 *205 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 BWC argues that R.C.
The BWC relies primarily on State ex rel. Williams v. Colasurd (1995),
In Colasurd, supra, the Supreme Court of Ohio held that "costs" are not synonymous with "expenses" unless expressly made so by statute.
However, the BWC's reliance on Colasurd is misplaced. In Colasurd, the claimant was unsuccessful and the Court looked only to a "cost of the deposition" provision, similar to R.C.
The BWC also directs us to decisions by other appellate courts that have held subsection (D) applies specifically to deposition costs and (F) applies to the more general cost of the legal proceedings. Thus, it contends that videography costs arising from the depositions could only be recoverable if allowed under (D). See, e.g., George, supra. We reject this argument. While we agree with the principle that specific provisions control over general provisions, *206 that principle is inapplicable here. This argument fails to take into account the fact that subsection (D) allows recovery for deposition costs to any claimant whereas subsection (F) allows recovery of costs only if a claimant is successful. Based on a review of the entire statutory scheme, it is clear that the legislature intended for successful claimants to recover significantly more costs than unsuccessful claimants; subsection (F) allows for such recovery. If the legislature included videography costs under subsection (D), the BWC would be required to pay these costs to both groups of claimants. That result is clearly not intended by the legislature.
Further, the BWC's position is inconsistent with the Supreme Court of Ohio's ruling in Moore v. General Motors Corp. (1985),
The Court stated that:
* * * the language of R.C.
4123.519 , as interpreted pursuant to the mandates of R.C.4123.95 , is designed to minimize the actual expense incurred by an injured employee who establishes his or her right to participate in the fund. Under the terms of participation in the State Insurance Fund, a claimant may recover relatively modest amounts. That is why Benda v. Fana [(1967),10 Ohio St.2d 259 ], is not applicable. * * *
The legislature pursuant to R.C.
Id. at 261-262.
The BWC argues that Moore should be narrowly interpreted as only allowing a successful claimant to recover the expert witness fees associated with the *207 physicians' depositions. Further, the BWC contends that the body of the Moore opinion is inconsistent with the syllabus in that the opinion uses the "cost of the depositions" provision and the "cost of the legal proceedings" provision interchangeably.
Both points raised by the BWC are technically correct, but we believe the Moore rationale cannot be ignored. While Moore addressed expert witness fees and Ms. Cave is seeking videography costs, both are reasonable expenses resulting from the legal proceedings. See Pritchardv. Administrator, Bureau of Workers' Compensation (Apr. 29, 1998), Tuscarawas App. No. 97APD080053, unreported (stating that "[a]lthough utilization of dual forms of a deposition during trial and trial preparation may not be necessary, such use of videotapes and transcriptions is reasonable"). Further, while Moore was frequently unclear as to which cost provision it was discussing, the syllabus and a careful reading of the opinion leave no doubt that the court allowed expert witness fees under the "cost of the legal proceedings" provision. Therefore, we find Moore to be supportive of Ms. Cave's position that, as a successful claimant, she is entitled to recover the videography costs associated with the physicians' depositions under R.C.
In sum, we find that the workers' compensation statute must be liberally construed in favor of employees and their families. As R.C.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
Kline, P.J. *Grey, J.: Concur in Judgment and Opinion
For the Court, William H. Harsha, Judge
*Lawrence Grey, retired judge, is sitting by assignment of the Ohio Supreme Court for the Fourth Appellate District. *208
