[Cite as Johnson-Floyd v. REM Ohio, Inc., 2011-Ohio-6542.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

RHODA JOHNSON-FLOYD                                      JUDGES:
                                                         Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                              Hon. Sheila G. Farmer, J.
                                                         Hon. Patricia A. Delaney, J.
-vs-
                                                         Case No. 11-CA-25
REM OHIO, INC., ET AL.

        Defendants-Appellees                             OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County Court of
                                                     Common Pleas, Case Nos. 09CV1171


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT ENTRY:                              December 8, 2011


APPEARANCES:


For Plaintiff-Appellant                              For Defendants-Appellees


LAUREN N. OSGOOD                                     MICHAEL DEWINE
MARK A. ADAMS                                        Ohio Attorney General
Adams & Gast, LLC
1110 Beecher Crossing North, Suite D                 SANDRA E. PINKERTON
Columbus, Ohio 43230                                 Counsel of Record
                                                     Assistant Attorney General
                                                     Workers’ Compensation Section
                                                     150 East Gay Street, 22nd Floor
                                                     Columbus, Ohio 43215
Fairfield County, Case No. 11-CA-25                                                    2

Hoffman, P.J.


       {¶ 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 R.C. 4123.512. The Administrator, with leave,

filed an Answer as well as an initial disclosure of witnesses.

       {¶ 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
Fairfield County, Case No. 11-CA-25                                                       3


voluntarily dismiss the pending case because Appellant continued to receive on-going

treatment and disability compensation for the allowed conditions in the claim.

      {¶ 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
Fairfield County, Case No. 11-CA-25                                                     4


conditions.    Appellee agreed to pay Appellant $2000, in attorney fees.        Appellant

refused, and then filed a motion for costs and request for the statutory $2500 maximum

in attorney fees. Appellee filed a memorandum in opposition. Via Judgment Entry filed

April 5, 2011, the trial court awarded Appellant $2000, in attorney fees.

       {¶ 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 R.C.

4123.512(F).

       {¶ 12} The decision to grant or deny fees under R.C. 4123.512(F) lies within the

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion. Azbell v. Newark Group, Inc., 5th Dist. No. 07 CA 00001, 2008-Ohio-2639.

An abuse of discretion is more than an error of law or judgment, 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.
Fairfield County, Case No. 11-CA-25                                                       5


       {¶ 13} R.C. 4123.512(F) authorizes the trial court to award attorney fees within a

statutory limit to the successful claimant. The version of R.C. 4123.512(F) applicable to

this matter reads:

       {¶ 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



1
  2006 Am. Sub. S.B. 7, effective August 25, 2006, amended R.C. 4123.512(F) to
increase the statutory maximum attorney fees from $2500 to $4200. The Ohio
Supreme Court held the amendments of S.B. 7 apply only to industrial injuries after
August 25, 2006. Thornton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124,
2009-Ohio-360.
Fairfield County, Case No. 11-CA-25                                                       6


the examination caused this matter to remain unresolved for longer than it otherwise

would.     Though we do not mean to suggest the trial court would have abused its

discretion had it awarded the maximum $2500, we do not find its decision to award

$2000 constitutes an abuse of its discretion.

         {¶ 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} R.C. 4123.512 does not require a trial court to conduct a hearing when

determining whether or how much attorney fees to award. Additionally, via Judgment

Entry filed February 14, 2011, the trial court scheduled a non-oral hearing on

Appellant’s motion for costs and attorney fees and any reply thereto. Appellant did not

request an oral hearing prior to or after receiving this notice.

         {¶ 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
Fairfield County, Case No. 11-CA-25                                               7


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


RHODA JOHNSON-FLOYD                        :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
REM OHIO, INC., ET AL.                     :
                                           :
       Defendants-Appellees                :         Case No. 11-CA-25


       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
