[Cite as Wasinski v. PECO II, Inc., 189 Ohio App.3d 550, 2010-Ohio-4293.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY


WASINSKI,

        APPELLEE,

        v.                                                        CASE NO. 3-10-01

PECO II, INC.,

        APPELLEE;
                                                                  OPINION

RYAN, ADMR.,

        APPELLANT. (Two cases.)



               Appeals from Crawford County Common Pleas Court
                  Trial Court Nos. 06-CV-0068 and 06 CV 0508

     Judgments Affirmed in Part, Reversed in Part and Causes Remanded

                        Date of Decision:        September 13, 2010




APPEARANCES:

        Jetta Mencer, for appellee Jodi Wasinski.

     Richard Cordray, Attorney General, and Kevin J. Reis, Assistant
Attorney General, for appellant.
Case No. 3-10-01 and 3-10-02




       PRESTON, Judge.

       {¶1} Defendant-appellant, administrator, Ohio Bureau of Workers’

Compensation (“BWC”), appeals the January 12, 2010 judgment entry of the

Court of Common Pleas, Crawford County, Ohio, ordering BWC to pay

deposition expenses and mileage expenses to a successful workers’ compensation

claimant, plaintiff-appellee, Jodi D. Wasinski. For the reasons that follow, we

affirm in part and reverse in part.

       {¶2} This is the second time that this particular workers’ compensation

case has been up on appeal. In the prior appeal, this court ultimately affirmed the

trial court’s judgment entry granting Wasinski her right to participate in the

workers’ compensation fund for two conditions. The issue in this appeal deals

with the trial court’s January 12, 2010 judgment entry, which granted Wasinski’s

motion for payment of costs and fees associated with the jury trial pursuant to R.C.

4123.512(D) and (F).

       {¶3} The procedural history of this case is not in dispute. Wasinski was

employed by PECO II, Inc., a company doing business in Crawford County, Ohio.

On or about January 20, 2001, Wasinski was injured in an automobile accident

while she was in Dallas, Texas, on a business trip in the course of her employment


                                       -2-
Case No. 3-10-01 and 3-10-02


with PECO. Wasinski filed an application for payment of compensation and

benefits with the Industrial Commission of Ohio under the Ohio Workers’

Compensation Act. This claim was allowed by the Industrial Commission of Ohio

for injuries described as contusion to scalp and left knee, cervicothoracic strain,

and lumbosacral strain.

      {¶4} On February 7, 2003, Wasinski moved to have her original claim

modified to include the following additional allowances: (1) major depression

single episode and moderate conversion disorder, (2) deferred with dependent

traits, (3) multiple pain sites and neurological symptoms, and (4) pain symptoms

and neurological symptoms, moderate.         Wasinski’s motion was denied by a

district hearing officer on July 23, 2003, and by a staff hearing officer on

September 15, 2003. The Industrial Commission refused Wasinski’s appeal on

October 11, 2003.

      {¶5} On December 8, 2003, Wasinski filed an appeal of the October 11,

2003 decision with the Cuyahoga County Court of Common Pleas pursuant to

R.C. 4123.512.      This case was transferred to the Crawford County Court of

Common Pleas and assigned case No. 04-CV-011. However, on February 23,

2004, the case was dismissed without prejudice pursuant to Civ.R. 41(A)(1). On

February 14, 2006, Wasinski refiled her complaint, naming PECO and appellant,

the administrator of BWC, as defendants. This case was assigned case No. 06-



                                       -3-
Case No. 3-10-01 and 3-10-02


CV-0068. The complaint alleged the right to participate in the benefits of the

workers’ compensation fund for major depression, single episode.

        {¶6} On May 12, 2006, Wasinski filed another motion with the BWC,

requesting that her original claim again be additionally allowed for postural

tachycardia syndrome and autonomic neuropathy. On August 11, 2006, a district

hearing officer granted Wasinski’s motion. PECO appealed the district hearing

officer’s decision, and on September 22, 2006, a staff hearing officer vacated the

district hearing officer’s decision and denied Wasinski’s motion. On October 6,

2006, the Industrial Commission refused Wasinski’s appeal from the staff hearing

officer’s decision.

        {¶7} Consequently, on November 27, 2006, Wasinski filed a notice of

appeal from the Industrial Commission’s October 6, 2006 decision with the

Crawford County Court of Common Pleas. On this same date, Wasinski also filed

a complaint and jury demand in which she alleged her right to participate in the

benefits of workers’ compensation fund for the conditions of postural tachycardia

syndrome and autonomic neuropathy. This matter was assigned case No. 06-CV-

0508.

        {¶8} Case No. 06-CV-0508 and case No. 06-CV-0068 were consolidated

for trial purposes on January 19, 2008, and the matters proceeded to a jury trial on

May 13, 14, 15, and 16, 2008. At the close of all the evidence, the jury returned a



                                       -4-
Case No. 3-10-01 and 3-10-02


verdict in favor of Wasinski on both of her proposed conditions. Specifically, the

jury determined that Wasinski was entitled to participate in the benefits of the

workers’ compensation fund for the condition of postural tachycardia syndrome

and for the condition described as major depression, single episode.

       {¶9} Subsequently, BWC appealed to this court, asserting various

evidentiary and procedural errors allegedly made by the trial court during the jury

trial. In addition, Wasinski filed a cross-appeal asserting additional errors, most of

which were dependent upon this court sustaining one or more of BWC’s

assignments of error. Ultimately, on July 15, 2009, this court overruled both

Wasinski’s and BWC’s assignments of error, and we affirmed the trial court’s

judgment entry granting Wasinski her right to participate in the workers’

compensation fund for her two proposed conditions. Wasinski v. PECO II, Inc.,

3d Dist. Nos. 3-08-14 and 3-08-16, 2009-Ohio-2615.

       {¶10} On August 5, 2009, Wasinski renewed her motion in the trial court

for payment of costs and fees associated with the jury trial proceedings pursuant to

R.C. 4123.512(D) and (F). BWC agreed to some of the costs and fees requested

by Wasinski but objected to the expenses related to two particular depositions and

mileage expenses for Wasinski’s attorney, claiming that they were not authorized

under the statute. On January 12, 2010, the trial court ordered the payment of all




                                        -5-
Case No. 3-10-01 and 3-10-02


of the expenses sought by Wasinski, including the following costs at issue in this

appeal:

      Deposition witness fee of Robert Jones, M.D.                 $900.00
      Transcript fee for deposition of Robert Jones, M.D.          $507.15
      Video deposition recording fee for Robert Jones, M.D.        $575.00
      Mileage travel to deposition of Robert Jones, M.D.           $123.32
      Mileage to court of appeals argument                         $ 96.96
      Transcript (discovery) deposition of Blair Grubb, M.D. $269.55

      {¶11} BWC now appeals and raises three assignments of error. For ease of

our discussion, we elect to address all of BWC’s assignments of error together.




                            Assignment of Error No. I

             The trial court erred in ordering the defendant administrator
      to pay, under R.C. 4123.512, the claimant’s expert’s fee, video
      deposition expense, transcript deposition expense and counsel’s
      mileage to and from the expert’s deposition, when the deposition
      was not used at the trial.

                           Assignment of Error No. II

             The trial court erred in ordering the defendant administrator
      to pay, under R.C. 4123.512, the claimant’s expense for a transcript
      of a discovery deposition of the claimant’s expert, when the
      discovery deposition was not used at the trial.

                           Assignment of Error No. III

             The trial court erred in ordering defendant administrator to
      pay, under R.C. 4123.512, claimant’s counsel’s mileage expense
      related to counsel’s travel to and from the court of appeals.



                                       -6-
Case No. 3-10-01 and 3-10-02


       {¶12} In its three assignments of error, BWC claims that the trial court

erred in granting certain expenses sought by Wasinski because these expenses

were not authorized by the statute. First, BWC claims that it should not have to

pay for the expenses associated with Dr. Jones’s deposition, since Dr. Jones’s

deposition was excluded from being used at trial. Similarly, BWC argues that it

should also not have to pay for Dr. Grubb’s discovery deposition, because the trial

court also excluded it from being used at trial. Finally, BWC claims that it should

not have to pay for Wasinski’s attorney’s mileage expenses associated with

traveling to this court’s oral arguments on the first appeal in 2009.

       {¶13} First of all, despite BWC’s argument to the contrary, the decision to

grant or deny fees and costs under R.C. 4123.512(D) and (F) lies within the sound

discretion of the trial court, and we will not disturb its decision absent an abuse of

discretion. Dixon v. Ford Motor Co., 8th Dist. No. 82148, 2003-Ohio-3959, ¶ 5.

See also Azbell v. Newark Group, Inc., 5th Dist. No. 07 CA 00001, 2008-Ohio-

2639, ¶ 22; Murawski v. Tamarkin Co., 9th Dist. No. 23103, 2006-Ohio-4870, ¶ 9,

citing Baycliffs Homeowners Assn., Inc. v. Solomon, 6th Dist. No. OT-05-002,

2005-Ohio-4917, ¶ 59; Hansford v. Midwest Staff Solutions, 8th Dist. No. 87226,

2006-Ohio-5581, ¶ 11, citing Raymond v. Shaker Produce, Inc., 8th Dist. Nos.

84885 and 85391, 2005-Ohio-1670; Kilgore v. Chrysler Corp. (Feb. 4, 2000), 2nd

Dist. Nos. 17906 and 17915, at *7, affirmed (2001), 92 Ohio St.3d 184, 749



                                         -7-
Case No. 3-10-01 and 3-10-02


N.E.2d 267. An abuse of discretion is more than an error of law; rather, it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶14} Under R.C. 4123.512, a claimant who successfully appeals from a

denial of benefits is entitled to recovery of certain costs of litigation. Specifically,

R.C. 4123.512(D) and (F) govern a claimant’s recovery of costs of an appeal to

the trial court.     R.C. 4123.512(D) concerns the payment for physicians’

depositions filed with the court:

               Any party may file with the clerk prior to the trial of the
       action a deposition of any physician taken in accordance with the
       provisions of the Revised Code, which deposition may be read in the
       trial of the action even though the physician is a resident of or
       subject to service in the county in which the trial is had. 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.

Under this provision, regardless of the outcome of the claimant’s appeal, the

claimant is entitled to be reimbursed for the costs of his or her own doctor’s

deposition if the deposition is filed with the court. Kilgore, 92 Ohio St.3d at 186,

749 N.E.2d 267.       While R.C. 4123.512(D) allows reimbursement regardless

whether the claimant wins or loses, it only pertains to a very specific type of costs.

R.C. 4123.512(F), on the other hand, allows for a broader type of reimbursable



                                         -8-
Case No. 3-10-01 and 3-10-02


costs, but only if the claimant is successful on appeal and has been deemed

eligible to participate in the workers’ compensation fund. In particular, R.C.

4123.512(F) provides:

               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 forty-two hundred dollars.1

Besides determining whether a claimant has been successful, the key to allowing

costs under this provision is whether it qualifies as R.C. 4123.512(F)’s “costs of

any legal proceedings.”

        {¶15} Significantly, over the last several years, the Ohio Supreme Court

has consistently construed the term “cost of any legal proceedings” liberally in

favor of employees. See Cave v. Conrad (2002), 94 Ohio St.3d 299, 301, 762

N.E.2d 991. In Moore v. General Motors Corp. (1985), 18 Ohio St.3d 259, 262,

480 N.E.2d 1101, the court held that “the cost of any legal proceedings authorized

by this section” included the fees charged by an expert witness whose deposition

was used in a workers’ compensation hearing. A few years later, the Supreme



1
 The prior version of the R.C. 4123.512(F) prescribed that the maximum amount of attorney fees was
$2,500. Effective June 30, 2006 (approximately four months after Wasinski had filed her first complaint
with the trial court), the statutorily prescribed maximum award of attorney fees was increased from $2,500


                                                  -9-
Case No. 3-10-01 and 3-10-02


Court held that “[p]ursuant to R.C. 4123.512(F), reasonable videotaped deposition

expenses may be taxed as costs and awarded to a successful workers’

compensation claimant.” Cave, 94 Ohio St.3d 299, at syllabus. Similarly, in

Kilgore, 92 Ohio St.3d 184, 749 N.E.2d 267, at syllabus, the court expanded the

phrase even more and held that “an attorney’s travel expenses incurred in taking a

deposition of an expert are a reimbursable ‘cost of any legal proceedings’ under

R.C. 4123.512(F).” Finally, and most recently, in Schuller v. United States Steel

Corp., 103 Ohio St.3d 157, 2004-Ohio-4753, 814 N.E.2d 857, at syllabus, the

court declared that “[a]n expert witness’s fee for live in-court testimony is a

reimbursable cost of legal proceedings pursuant to R.C. 4123.512(F), subject to

the trial court’s determination that the fee is reasonable.”

        {¶16} Central to all of the court’s decisions was the rationale that R.C.

4123.512(D) and (F) were “‘designed to minimize the actual expense incurred by

an injured employee who establishes his or her right to participate in the fund.’”

Cave, 94 Ohio St.3d at 301, quoting Moore, 18 Ohio St.3d at 261-262. The court

has stated that by enacting R.C. 4123.512(F), the General Assembly “‘has

demonstrated its intent that a claimant’s recovery shall not be dissipated by

reasonable litigation expenses connected with the preparation and presentation of

an appeal.’”        Id., quoting Moore at 262.                  Despite its consistent liberal


to $4,200. Here, the trial court awarded Wasinski attorney’s fees in the amount of $2,500. Neither party
disputes the specific award of attorney fees in this particular case.


                                                - 10 -
Case No. 3-10-01 and 3-10-02


interpretation of R.C. 4123.512(F), the Ohio Supreme Court has recognized

employers’ concerns:

              Appellants paint a picture of trial courts overwhelmed by
       requests for reimbursement for staples, paper clips, and, presumably,
       a claimant’s lawyer’s lucky tie if they are used in a successful
       appeal. However, our decision today does not allow reimbursement
       for everyday costs of doing business. It applies to costs bearing a
       direct relation to a claimant’s appeal that lawyers traditionally
       charge to clients and that also have a proportionally serious impact
       on a claimant’s award. As in the case at bar, approval of an
       attorney’s travel expenses incurred in taking an expert’s deposition
       is subject to the trial court’s determination of their reasonable
       necessity to the presentation of the claimant’s appeal.

Kilgore, 92 Ohio St.3d at 187-188. Nevertheless, the court has repeatedly held

that R.C. 4123.512(F) allows reimbursement for reasonable litigation expenses

that “bear[] a direct relation to a claimant’s appeal that lawyers traditionally

charge to clients and that also have a proportionally serious impact on a claimant’s

award.” Id. at 188.

       {¶17} In this particular case, we believe that Dr. Jones’s and Dr. Grubb’s

depositions were reasonable litigation expenses connected with the preparation

and presentation of Wasinski’s appeal that essentially bore a direct relation to the

success of her appeal even though they were not admitted at trial. Dr. Jones was

one of Wasinski’s treating physicians and was treating Wasinski for one of the

conditions (depression) that she was trying to seek coverage for in the workers’

compensation fund. Despite Dr. Jones’s deposition being inadmissible at trial, Dr.



                                       - 11 -
Case No. 3-10-01 and 3-10-02


Jones’s deposition led to Wasinski presenting another physician’s testimony, Dr.

Egan, at trial with respect to the issue of Wasinski’s depression. Ultimately, the

jury found that the depression was a sufficient basis for Wasinski to participate in

the workers’ compensation fund. Thus, Dr. Jones’s deposition was instrumental in

Wasinski’s preparation and presentation of her claim for depression at trial, and

therefore we find that it was reasonable and within the trial court’s discretion to

have allowed for the reimbursement expenses concerning Dr. Jones’s deposition.

       {¶18} In addition, we also believe that reimbursing Wasinski for Dr.

Grubb’s discovery deposition was reasonable under the circumstances. Despite

BWC’s assertion that Dr. Grubb’s discovery deposition was properly excluded as

evidence at trial, Civ.R. 32, which governs the use of depositions in all court

proceedings, does not distinguish between trial and discovery depositions.

Beckman v. Yellow Freight Sys., Inc. (Feb. 12, 1997), 9th Dist. No. 17845, at *3,

citing Van Meter v. Coates (Aug. 12, 1992), 9th Dist. No. 91CA005220. See also

Coxson v. Miller (Mar. 26, 1999), 11th Dist. No. 97-T-0179, 1999 WL 266691, at

*2, citing Dodson v. Oclese (Sept. 30, 1987), 11th Dist. No. 3733, 1987 WL

18028, at *5. The rule specifically provides that a deposition of a witness “may be

used by any party for any purpose” so long as the witness is a medical expert.

(Emphasis added.)      Civ.R. 32(A)(3)(e).      Dr. Grubb was a medical expert;

therefore, filing Dr. Grubb’s discovery deposition in anticipation of using it at the



                                       - 12 -
Case No. 3-10-01 and 3-10-02


trial was both reasonable and permissible under the civil rules. Therefore, it was

likewise reasonable for the trial court to have granted the reimbursement of its cost

considering the deposition costs were incurred for the purposes of presenting

Wasinski’s appeal. See Bramely v. Painesville (Dec. 26, 1997), 11th Dist. No. 97-

L-038, at *4 (finding that the trial court erred in not awarding workers’

compensation claimant costs for the discovery deposition of a medical expert,

since it was arguably incurred for the purposes of advancing claimant’s appeal).

       {¶19} Overall, in light of the Ohio Supreme Court’s broad interpretation of

the phrase “cost of any legal proceedings” in R.C. 4123.512(F), we believe that it

was reasonable, and certainly within the trial court’s discretion, to have allowed

the costs associated with Dr. Jones’s deposition and Dr. Grubb’s discovery

deposition to be reimbursed, since they were directly related to Wasinski’s appeal

and thus could be considered as “cost[s] of any legal proceedings” under R.C.

4123.512(F).

       {¶20} However, despite our position above, we believe that it was

unreasonable to have allowed Wasinski to be reimbursed for her attorney’s

mileage to and from the court of appeals for purposes of attending oral arguments

for the prior appeal because that expense was not a cost directly related to

Wasinski’s appeal but rather an everyday cost of doing business. Furthermore,

while we acknowledge that this court was willing to expand the Supreme Court’s



                                       - 13 -
Case No. 3-10-01 and 3-10-02


holding in Kilgore in our recent decision of Ley v. Procter & Gamble Co., 3d Dist.

No. 1-09-41, 2010-Ohio-834, we find that Ley is distinguishable from the

circumstances in this case.

       {¶21} As we stated above, in Kilgore, the Supreme Court expanded the

phrase “cost[s] of any legal proceedings” and held that “an attorney’s travel

expenses incurred in taking a deposition of an expert are a reimbursable ‘cost of

any legal proceedings’ under R.C. 4123.512(F).” 92 Ohio St.3d 184, at syllabus.

In Ley, this court affirmed a judgment reimbursing a claimant for her attorney’s

travel expenses for taking depositions even though the attorney was an out-of-

town attorney and the depositions were taken in the county where the action was

filed. 2010-Ohio-834, ¶ 52. Specifically, this court stated:

       [W]e do not believe that the Court’s holding in Kilgore is as narrow
       as P & G suggests. We believe that the Court’s rationale in Kilgore,
       just like its rationale in all of its recent cases dealing with R.C.
       4123.512(D) and (F), was to allow those expenses that are directly
       related to a claimant’s appeal that an attorney would traditionally
       charge to clients and that would also have a proportionally serious
       impact on the claimant's award. Kilgore, 92 Ohio St.3d at 187. We
       believe that it was reasonable for the trial court to have believed that
       Ley’s out-of-town attorney’s mileage expenses to attend the
       depositions of Ley’s witnesses did bear a direct relationship to Ley’s
       appeal and would have a serious impact on her award if not granted.

Id. Nevertheless, we find the circumstances in this case to be distinguishable from

the facts in Ley. Even though we stated that we did not believe that the court’s

holding in Kilgore was as narrow as the employer suggested and that it was



                                        - 14 -
Case No. 3-10-01 and 3-10-02


reasonable to have allowed plaintiff’s out-of-town attorney to have mileage

expenses for attending depositions of witnesses, extending Kilgore’s ruling in Ley

was logical, since both cases involved attorney’s mileage expenses concerning the

preparation of the claimant’s appeal (i.e. travel expenses to take witnesses’

depositions). See Ley, 2010-Ohio-834, at ¶ 52; Kilgore, 92 Ohio St.3d at 188.

Here, Wasinski’s attorney is asking BWC to reimburse him for mileage to our

courthouse for oral arguments with respect to the first appeal. As the Supreme

Court itself stated in Kilgore, R.C. 4123.512(F) “does not allow reimbursement for

everyday costs of doing business,” and we fail to see how an attorney traveling to a

courthouse would be anything other than an everyday cost of doing business rather

than one directly related to the claimant’s appeal. See Kilgore, 92 Ohio St.3d at

188.

       {¶22} Furthermore, at the time Wasinski filed her first complaint with the

trial court, R.C. 4123.512(F) explicitly prescribed that an attorney may collect fees

in an amount of up to $2,500, and in this particular case, the trial court awarded

$2,500 in fees to Wasinski’s attorney. Besides the statutory fee language and the

Ohio Supreme Court’s ruling in Kilgore, which again only pertained to travel

expenses to and from depositions in preparation of a claimant’s appeal, no other

miscellaneous expenses, such as an attorney’s mileage to a courthouse, have been

provided for in the statute.     Thus, absent express statutory authority to the



                                       - 15 -
Case No. 3-10-01 and 3-10-02


contrary, this court is unwilling to “‘read into a statute something that cannot

reasonably be implied from the statute’s language.’” Breidenbach v. Conrad

(1997), 122 Ohio App.3d 640, 645-646, 702 N.E.2d 509, quoting State ex rel.

Williams v. Colasurd (1995), 71 Ohio St.3d 642, 644, 646 N.E.2d 830, citing

Szekely v. Young (1963), 174 Ohio St. 213, 188 N.E.2d 424, paragraph two of the

syllabus.

       {¶23} Therefore, we find that the reimbursement of mileage to our

courthouse for Wasinski’s attorney for purposes of oral arguments in the first

appeal was unreasonable because it was an everyday cost of doing business and

not one “directly related to the claimant’s appeal.”

       {¶24} Therefore, BWC’s first and second assignments of error are

overruled, and BWC’s third assignment of error is sustained.

       {¶25} Having found no error prejudicial to the appellant in the particulars

assigned and argued with respect to appellant’s first and second assignments of

error, we affirm the judgment of the trial court. However, having found error

prejudicial to the appellant in the particulars assigned and argued with respect to

appellant’s third assignment of error, we reverse the judgment of the trial court,

and we remand the cause for further proceedings consistent with this opinion.

                                                        Judgment affirmed in part
                                                            and reversed in part,
                                                            and cause remanded.



                                        - 16 -
Case No. 3-10-01 and 3-10-02


      ROGERS and SHAW, JJ., concur.




                                      - 17 -
