RHODA JOHNSON-FLOYD v. REM OHIO, INC., ET AL.
Case No. 11-CA-25
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 8, 2011
2011-Ohio-6542
Hon. William B. Hoffman, P.J., Hon. Sheila G. Farmer, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case Nos. 09CV1171; JUDGMENT: Affirmed
For Plaintiff-Appellant
LAUREN N. OSGOOD
MARK A. ADAMS
Adams & Gast, LLC
1110 Beecher Crossing North, Suite D
Columbus, Ohio 43230
For Defendants-Appellees
MICHAEL DEWINE
Ohio Attorney General
SANDRA E. PINKERTON
Counsel of Record
Assistant Attorney General
Workers’ Compensation Section
150 East Gay Street, 22nd Floor
Columbus, Ohio 43215
{¶ 1} Plaintiff-appellant Rhoda Johnson-Floyd appeals the April 5, 2011 Judgment Entry entered by the Fairfield County Court of Common Pleas, which ordered Defendants-appellees REM Ohio, Inc., et al. to pay her $2000.00 in statutory attorney fees, following Appellees’ acknowledgement Appellant was entitled to additional benefits from the Bureau of Workers’ Compensation Fund.
STATEMENT OF THE FACTS AND CASE
{¶ 2} Appellant was injured at work on May 20, 1994. Appellant filed a workers’ compensation claim for the injuries she sustained. The Ohio Bureau of Workers’ Compensation allowed her claims for “lumbar disc displacement, lumbar sprain, disorders of the sacrum and post-laminectomy syndrome.” Subsequently, in April, 2209, Appellant sought the right to participate for the additional conditions of “lumbar stenosis of L2-3 and L3-4 and lumbar radiculopathy of L2-3 and L3-4.” The Industrial Commission of Ohio granted Appellant‘s request as to the stenosis and radiculopathy at L3-4, but denied her request with respect to the stenosis and radiculopathy at L2-3.
{¶ 3} On September 4, 2009, Appellant filed a Notice of Appeal as well as a Complaint against Appellee Administrator, Bureau of Workers’ Compensation in the Fairfield County Court of Common Pleas, appealing the denial of the stenosis and radiculopathy at L2-3 claims pursuant to
{¶ 4} The parties filed a joint pretrial statement on March 2, 2010. The trial court conducted a pretrial on March 26, 2010, and scheduled the matter for trial. At the pretrial, counsel for Appellant anticipated Appellant would either settle the claims or
{¶ 5} In June, 2010, counsel for Appellee sent a letter to counsel for Appellant, indicating Appellant had not yet responded to the interrogatories and requests for production, and had not signed requested medical releases. Appellant sent responses to some of the interrogatories in August, 2010. However, those responses did not include full names and addresses for Appellant‘s treating physicians. Ultimately, Appellee sought a protective order to cancel the deposition of Appellant‘s expert, and an order to compel Appellant to fully respond to discovery. The parties briefed their respective positions. The trial court ordered Appellant to provide full and complete responses to Appellee‘s interrogatories, and to sign the medical release. The trial court also granted the protective order and continued the trial date.
{¶ 6} After Appellant responded to discovery, Appellee sought and reviewed medical records, determined which possible independent medical examiners did not have conflicts of interest with Appellant‘s treating physicians, and named Dr. Matthew McDaniel as its expert witness and independent examiner. Appellee scheduled Dr. McDaniel‘s trial deposition as well Appellant‘s examination by the doctor. Appellant sought a protective order to prevent the independent medical examination. Appellee opposed the protective order. The trial court ordered Appellant to submit to the examination, which she did on January 20, 2011.
{¶ 7} The independent medical examiner found the additional conditions which Appellant sought to include were directly related to her 1994 injury. After receiving the report from the independent medical examiner, Appellee agreed to allow the disputed
{¶ 8} It is from this judgment entry, Appellant appeals, assigning as error:
{¶ 9} “I. IN THIS WORKERS’ COMPENSATION ACTION, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE FULL AMOUNT OF ATTORNEY FEES UNDER OHIO REV. C §4123.512(F) WHERE THE RECORD CONTAINS EVIDENCE THAT COUNSEL EARNED THE FULL AMOUNT.
{¶ 10} “II. IN THIS WORKERS’ COMPENSATION ACTION, THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING A HEARING GIVING COUNSEL THE OPPORTUNITY TO BE HEARD REGARDING ATTORNEY FEES.”
I
{¶ 11} In her first assignment of error, Appellant maintains the trial court abused its discretion in denying her the full amount of attorney fees allowed by
{¶ 12} The decision to grant or deny fees under
{¶ 14} “The 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.”1
{¶ 15} We find the trial court did not abuse its discretion in limiting the amount of attorney fees awarded to Appellant to $2000. In the motion for costs and fees, counsel for Appellant detailed the work she performed in preparing the matter for trial, from the filing of the initial Notice of Appeal and Complaint with the Fairfield County Court of Common Pleas, to responding to numerous motions filed by Appellee. Counsel did not include an affidavit or time sheet stating the number of hours she worked on the case or her hourly rate. Upon review, we find some of the work counsel for Appellant performed was necessitated by her own actions. Appellant failed to timely respond to Appellee‘s discovery requests, thus requiring Appellee to file a motion to compel to which Appellant then responded. Appellant filed a motion for a protective order to prevent the independent medical examination. It appears Appellant‘s counsel‘s attempts to avoid
{¶ 16} Appellant‘s first assignment of error is overruled.
II
{¶ 17} In her second assignment of error, Appellant asserts the trial court abused its discretion by failing to conduct an oral hearing on her motion for attorney fees. We disagree.
{¶ 18}
{¶ 19} Appellant‘s second assignment of error is overruled.
{¶ 20} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer
HON. SHEILA G. FARMER
s/ Patricia A. Delaney
HON. PATRICIA A. DELANEY
RHODA JOHNSON-FLOYD v. REM OHIO, INC., ET AL.
Case No. 11-CA-25
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer
HON. SHEILA G. FARMER
s/ Patricia A. Delaney
HON. PATRICIA A. DELANEY