VICTORIA KLOEPFER, Petitioner and Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Insurer and Respondent for BECHTEL CONSTRUCTION CO., Employer and Respondent.
No. 94-336
Supreme Court of Montana
July 25, 1995
272 Mont. 78 | 899 P.2d 1081 | 52 St. Rep. 663
Submitted on Briefs March 16, 1995.
For Respondent: Steven S. Carey, Garlington, Lohn & Robinson, Missoula.
For Amicus: Patrick R. Sheehy, Halvorson, Sheehy & Plath, Billings (Montana Trial Lawyers Association).
This is an appeal from the Order Awarding Costs of the Workers’ Compensation Court which disallowed as a recoverable cost the expert witness fee of $750 charged for the deposition testimony of Victoria Kloepfer‘s treating physician. We reverse.
The only question on appeal is whether the Workers’ Compensation Court erred when it disallowed the payment of $750 as the fee charged by claimant‘s treating physician for the taking of a deposition based upon the Witty rationale.
Victoria Kloepfer (Kloepfer) sustained an injury to her back on April 14, 1992, while undergoing physical therapy at the Billings Clinic Work Hardening Center (Clinic) where she was undergoing treatment for an existing occupational disease of her arm. Kloepfer‘s physician, Peter V. Teal, M.D., testified that she had in fact injured her back at the Clinic. Dr. Teal‘s testimony was presented to the court by way of a deposition taken in his office on September 14, 1993, for which he charged Kloepfer $750.
The Workers’ Compensаtion Court ordered that Kloepfer receive occupational disease benefits and medical and hospital benefits for her back injury. The court also awarded Kloepfer her costs. The cоurt permitted the costs of medical records but denied Kloepfer the $750 cost for Dr. Teal‘s deposition fee.
Kloepfer filed a Request for Redetermination of Costs and the parties further briefed the issue. The court again denied the $750 stating that “irrespective of past practice” it had to follow the directives set out in Witty v. Pluid (1986), 220 Mont. 272, 714 P.2d 169; and Baeta v. Don Tripp Trucking (1992), 254 Mont. 487, 839 P.2d 566.
Kloepfer appeals the Workers’ Compensation Court‘s denial of the $750 for Dr. Teal‘s deposition.
Did the Workers’ Compensation Court err when it disallowed as a recoverable cost the expert witness fee of $750 charged for the deposition testimony of Victoria Kloepfer‘s treating physician?
Kloepfer argues that the Workers’ Compensation Court misconstrued the case law upon which it relied. Further, Kloepfer contends that the court has historically awarded witness fees for testimony by way of deposition.
The insurer argues that
Our standard of review is whether or not the Workers’ Compensation Court correсtly interpreted the law. Russette v. Chippewa Cree Housing Authority (1994), 265 Mont. 90, 874 P.2d 1217. The District Court disallowed the $750 charged by Kloepfer‘s physician for his deposition based upon the court‘s conclusion that Witty and Baeta were precedent for its decision.
Witty was a case tried in District Court in which the court had to reconсile two conflicting civil procedure statutes dealing with the compensation for witnesses who appear at trial:
Witnesses in courts of record and before certain court officers. (1) Witness fees are as follows:
(a) for attending in аny civil or criminal action or proceeding before any court of record, referee, or officer authorized to take deposi-tions or commissioners to assess damages or otherwise, for еach day, $10 ...
Costs generally allowable. A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:
....
(2) the expenses of taking depositions;
....
(9) such other reasonable and necessary expenses as are taxablе according to the course and practice of the court or by express provision of law.
In Witty, we concluded that the specific statute,
The statutes governing workеrs’ compensation claims direct the Workers’ Compensation Court to be bound by “the Montana Administrative Procedure Act” and the “common law and statutory rules of evidence.”
Yet, we decided in Baeta that
A claimant, like any other party, is still subject to the mandates of
§ 25-10-201, MCA , and the court‘s authority to tax costs. There can be no question that even under the “net recovery” concept, the court has discretion in determining fees. The same holds true for costs, subject to the mandates of§ 25-10-201, MCA . We hold that the Workers’ Compensation Court did not abuse its discretion in its award of costs.
Section 25-10-201, MCA , is a general statute which governs the award of costs and was made applicable to workers’ compensation cases in Baeta v. Don Tripp Trucking (1992), 254 Mont. 487, 493-94, 839 P.2d 566, 570. ...
The statutes applicable to the Workers’ Compensation Court were not considered in either Baeta or Stevens. In pertinent part these workers’ compensation statutes provide:
Costs and attorneys’ fees payable on denial of claim or termination of benefits later found compensable. (1) The insurer shall pay reasonable costs and attorney fees as established by the workers’ compensation court if:
(a) the insurer denies liability for a claim for compensation or terminates compensation benefits;
(b) the claim is later adjudged compensable by the workers’ compensation court .... (Emphasis added.)
Costs and attorneys’ fees that may be assessed against an insurer by workers’ compensation judge. (1) If an insurer pays or submits a written offer of payment of compensation under chapter 71 or 72 of this title but controversy relates to the amount of compensation due, the case is brought before the workers’ compensation judge for adjudication of the controversy, and the award granted by the judge is greater than the amount paid or offered by the insurer, a reasonable attorney‘s fee and costs as established by the workers’ compensation judge if the case has gone to a heаring may be awarded by the judge in addition to the amount of compensation. (Emphasis added.)
The above statutes establish that “reasonable costs and attorney‘s fees” may be awarded in workers’ compensation cases. As a result, the costs payable in Workers’ Compensation Court under the reasonable costs standard are not necessarily comparable to the standard applied in normal district court cases.
Medical depositions have been consistently used in workers’ compensation cases and the costs of such testimony have been routinely allowed by workers’ compensation judges. We cоnclude that the
We also point out that the statutes covering workers’ compensation state that the “assessments” made by the Workers’ Compensation Judge are the exclusive assessments that can be levied against an insurer for disputes arising under Chapter 71. See
We specifically overrule Baeta and Stevens in their holding that
We hold that the Workers’ Compensation Court erred in disallowing the payment of $750 as the cost of taking the trеating physician‘s deposition.
We amend the Order Awarding Costs entered by the Workers’ Compensation Court and hold that Kloepfer shall recover the sum of $750 as the expert witness fee for Dr. Teal.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT and LEAPHART concur.
JUSTICE NELSON specially concurs.
I concur in the result reached in our opinion, but I disagree in our decision to overrule Baeta and Stevens. That is unnecessary, and neither the parties nor amicus requested that we overrule either of those cases. The problem in this case is not Baeta or Stevens. The problem is Witty and the Court‘s assumption that because Witty, a district court case, interpreted
Similarly, while Stevens relied on Baeta, Stevens did not address Witty. We simply pointed out that Baeta made
Given that Witty was a district court case rather than a workers’ compensation case; given that
Accordingly, I specially concur only in the result of our decision.
JUSTICE GRAY concurs in the foregoing special concurrence.