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Schuller v. United States Steel Corp.9/22/2004
Workers' compensation -- Court costs -- R.C. 4123.512(F) -- Expert witness's fee for live in-court testimony is reimbursable "cost of any legal proceedings," subject to trial court's determination that fee is reasonable.
Submitted May 26, 2004
{ } Plaintiff-appellant, John R. Schuller, filed a workers' compensation claim against his employer, LTV Steel Company, alleging that he had contracted the occupational disease of asbestosis. After Schuller's claim was denied, he appealed the denial to the Court of Common Pleas of Trumbull County. The jury determined that Schuller was entitled to participate in the Workers' Compensation Fund. The court ordered costs to be taxed against the bureau.
{ } Schuller filed a postverdict motion for reimbursement of costs and attorney fees, totalling $9,229.18. The bureau agreed that Schuller was entitled to be reimbursed for his attorney fees ($2,500) and for miscellaneous deposition and filing fee expenses ($1,697.25). However, it objected to the remaining expenses ($5,031.93), including the expert witness fees of Dr. Venizelos, who testified live at trial, and of Dr. Bleggi, whose videotaped deposition was played at trial. The trial court agreed and authorized reimbursement for only those expenses and fees agreed to by the bureau.
{ } The court of appeals affirmed that part of the trial court's decision denying Schuller's request for reimbursement for Dr. Venizelos's live in-court testimony. However, it allowed reimbursement for Dr. Bleggi's videotaped trial deposition fee and, therefore, reversed the trial court's decision on this point. The court then certified its decision to be in conflict with the First District Court of Appeals' decision in Dean v. Conrad (1999), 134 Ohio App.3d 367, 731 N.E.2d 212, and the Eighth District Court of Appeals' decision in Dixon v. Ford Motor Co., Cuyahoga App. No. 82148, 2003-Ohio-3959, 2003 WL 21710796. This appeal is before this court upon our determination that a conflict exists.
{ } The certified issue for our review is " hether an expert's witness fee for live in-court testimony is a reimbursable cost of legal proceedings pursuant to R.C. 4123.512(F)." For the reasons that follow, we answer this question in the affirmative and reverse the judgment of the court of appeals in part and remand this cause to the trial court for further proceedings.
{ } R.C. 4123.512(F) provides for the reimbursement of the "cost of any legal proceedings" incurred by claimants who bring successful workers' compensation appeals. This section states:
{ } "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 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 attorney's fee shall not exceed twenty-five hundred dollars."
{ } In our prior decisions, we have interpreted the phrase "cost of any legal proceedings" broadly, recognizing that the purpose of allowing reimbursement under R.C. 4123.512 is "to minimize the actual expense incurred by an injured employee who establishes his or her right to participate in the fund." Moore v. Gen. Motors Corp., Terex Div.(1985), 18 Ohio St.3d 259, 261-262, 18 OBR 314, 480 N.E.2d 1101 (construing former R.C. 4123.519, the predecessor of R.C. 4123.512). In order to ensure that a successful claimant is not penalized for pursu
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