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Cave v. Conrad2/27/2002
Workers' compensation - Pursuant to R.C. 4123.512(F), reasonable videotaped deposition expenses may be taxed as costs and awarded to a successful workers' compensation claimant in an action brought pursuant to R.C. 4123.512.
Submitted December 11, 2001
On March 6, 1985, appellee, 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.
Pursuant to R.C. 4123.512, appellee filed an appeal from the denial of this claim on March 10, 1997, to the Pike County Court of Common Pleas. A jury trial was held, during which appellee presented the videotaped deposition testimony of two expert witnesses, Dr. Thomas J. Hawk and Dr. R. Michael Kelly. The jury returned a verdict in favor of appellee, finding that she was entitled to an award from the Workers' Compensation Fund for the condition of disc herniation. On October 12, 1999, the trial court entered judgment on the verdict and, pursuant to R.C. 4123.512(D) and (F), further ordered the Bureau of Workers' Compensation to pay appellee certain expenses incurred by her in connection with her trial.
The trial court also permitted appellee 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 deposition expenses to be paid by the bureau as "cost of legal proceedings" pursuant to R.C. 4123.512(F).
Appellant, the Administrator of Workers' Compensation, filed an appeal to the Pike County Court of Appeals. The sole issue raised by appellant was in regard to the trial court's order awarding appellee the expenses of the videotaping. The court of appeals affirmed the trial court's ruling. Cave v. Conrad (2000), 140 Ohio App.3d 202, 746 N.E.2d 1179. This cause is now before this court upon the allowance of a discretionary appeal.
Both the trial court and the court of appeals held that R.C. 4123.512(F) entitled appellee as the prevailing party to recover from the bureau the videotaped deposition expenses as the "cost of any legal proceeding." Both courts arrived at this conclusion even though R.C. 4123.512(D) also required the bureau to pay appellee the costs of stenographic transcription of the same depositions.
Appellant questions the propriety of assessing "dual payments" for both videotaped deposition costs and stenographic deposition costs. Appellant contends that neither the bureau nor a self-insured employer should ever be responsible for paying both. We disagree.
R.C. 4123.512 sets forth the procedure in cases of injury or occupational disease whereby a claimant or an employer may appeal an order of the Industrial Commission or an order of a staff hearing officer from which the commission has refused to hear an appeal. R.C. 4123.512 contains two provisions, R.C. 4123.512(D) and (F), whereby a claimant may recover costs of an appeal.
R.C. 4123.512(D) provides:
"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."
In Akers v. Serv-A-Portion, Inc. (1987
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