[Cite as Carrigan v. Shaferly Excavating, Ltd., 2011-Ohio-5587.]




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




KEVIN R. CARRIGAN,

        PLAINTIFF-APPELLANT,                                       CASE NO. 13-11-08

        v.

SHAFERLY EXCAVATING LTD., ET AL.,                                  OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 10 CV 0036

                       Judgment Reversed and Cause Remanded

                           Date of Decision: October 31, 2011




APPEARANCES:

        Theodore A. Bowman for Appellant

        William S. Alge, Jr. for Appellee, Shaferly Excavating, Ltd.

        Robert Eskridge for Appellee, Admr. Bureau of Workers’ Comp.
Case No. 13-11-08



ROGERS, P.J.

       {¶1} Plaintiff-Appellant, Kevin Carrigan (“Carrigan” or “Claimant”),

appeals the judgment of the Court of Common Pleas of Seneca County denying

reimbursement for a portion of the costs he incurred during the litigation of his

claim for workers’ compensation benefits. On appeal, Carrigan asserts that the

trial court erred in denying a portion of the costs without explanation and seeks

modification of the judgment entry to award him those costs pursuant to R.C.

4123.512(D) and (F). Finding that the trial court abused its discretion in denying

the costs of legal proceedings, we reverse the decision of the trial court.

       {¶2} The pertinent facts of this case are not in dispute. Carrigan was

employed by Shaferly Excavating, Ltd. on July 1, 2009. On that date, during the

course of his employment, he was injured. Carrigan filed a claim with the Ohio

Bureau of Workers’ Compensation (“the BWC”) on July 14, 2009. The Industrial

Commission ultimately disallowed his claim, and Carrigan filed an appeal in the

Seneca County Court of Common Pleas on January 21, 2010, pursuant to R.C.

4123.512. The case proceeded to a jury trial in January, 2011. The trial court

granted defendants’ motion for a directed verdict under Civ.R. 50 for the claims of

skin sensation disturbance and disc degeneration. The jury found that Carrigan

was entitled to participate in the state fund for the cervical disc herniation C5-6.



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        {¶3} Carrigan filed a motion for costs and statutory attorney’s fees pursuant

to R.C. 4123.512(D) and (F) including the amount of $4,200.00 for statutory

attorney’s fees and $6,383.30 for the costs of legal proceedings. The BWC filed a

motion in opposition through which it agreed to pay $4,200.00 in attorney’s fees

pursuant to R.C. 4123.512(F), the fees charged by the Claimant’s expert physician,

Dr. Clark, for his deposition on December 21, 2010, in the amount of $2,485.00,1

the Claimant’s transcript of Dr. Clark’s deposition which took place on November

23, 2010 in the amount of $308.14, the Claimant’s copy of the transcript of the

deposition of Dr. Shiple, the BWC’s expert physician, in the amount of $177.00,

and the fee for the lay witnesses at trial in the amount of $18.00.

        {¶4} The BWC contested payment for the other requests. Specifically, it

argued that it must pay either the stenographic deposition cost of Dr. Clark’s

December 21, 2010 deposition or the video costs of the deposition, but not both, as

the costs are duplicative.              The BWC contested payment of Dr. Shiple’s

stenographic deposition as it was never filed with the trial court as required by

R.C. 4123.512(D). The BWC argued that the remaining costs are not expressly

included in R.C. 4123.512 and are therefore, not taxable as costs of legal




1
 This amount consisted of a thirty minute legal conference which cost $580 and the physician’s fee for a
one hour video deposition which cost $1,270.00 as well as an additional physician’s fee for a thirty minute
expense for the video deposition in the amount of $635.00

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proceedings.        Further, the BWC argued that these remaining expenses are

discovery expenses, not used in the presentation at trial.

        {¶5} The trial court held a hearing on the matter on February 18, 2011. The

judgment entry in its entirety read:

        This cause came on for a hearing on Plaintiff’s Amended Motion
        for [c]osts and statutory attorney fees filed January 26, 2011 in
        this case. A hearing was held on February 18, 2011. Present at
        the hearing by telephone conference were Theodore A. Bowman,
        plaintiff’s counsel, and Carolyn S. Bowe, counsel for Defendant
        Administrator [BWC]. After hearing arguments from counsel,
        the Court finds that certain costs and attorney fees shall be
        awarded to plaintiff in this case, pursuant to R.C. 4123.512(D)
        and (F).
        The following costs of Plaintiff shall be paid by the
        administrator to the Plaintiff or his counsel in this case:
        1. Statutory attorney fees                             $ 4,200.00
        2. Dr. Clark’s video deposition costs                  $ 635.00
        3. Dr. Clark’s video deposition costs                  $ 1,850.002
        4. Dr. Shiple discovery deposition costs               $ 143.60
        5. Dr. Clark discovery deposition costs                $ 308.143
        6. Dr. Shiple deposition costs                         $ 177.00
        7. Dr. Clark deposition costs                          $ 457.40
        8. Witness fees                                        $ 18.00
                                                 TOTAL         $ 7,789.14
         All other costs are DENIED.
         It is so ORDERED.




2
  This fee includes a $580.00 charge for a thirty minute legal conference with Dr. Clark on the same date as
the deposition on December 21, 2010. The trial court denied this same $580.00 fee for a thirty minute legal
conference with Dr. Clark on the same date as his deposition on November 23, 2010.
3
  The amount requested was $319.40 for the deposition on November 23, 2010. The trial court denied
reimbursement for the delivery fee of $11.24. However, the trial court granted reimbursement for shipping
and handling of Dr. Clark’s stenographic transcripts of his deposition occurring on December 21, 2010.

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(Docket No. 77). It is from this judgment Carrigan appeals asserting the following

assignment of error for our review.

                              Assignment of Error

      THE TRIAL COURT ERRED IN DENYING A
      SUBSTANTIAL PORTION OF THE ACTUAL OUT-OF-
      POCKET COSTS INCURRED BY A WORKERS’
      COMPENSATION CLAIMANT IN CONNECTION WITH
      THE PREPARATION AND PRESENTATION OF HIS
      SUCCESSFUL APPEAL UNDER R.C. 4123.512.

      {¶6} Initially we note that Appellant raises in his reply brief the issue of

Appellee’s alleged untimely filing of its brief. Appellant asserts that Appellee’s

brief was untimely as it was due May 23, 2011 but was not filed until May 24,

2011. Appellant requests this Court to strike Appellee’s brief pursuant to Loc.R. 9

and App.R. 18 and reverse the decision of the trial court based on Appellant’s

brief. We decline to strike Appellee’s brief as it was not untimely. App.R. 14(C)

grants an additional three days from the due date if the filing is served via mail.

As Appellee’s brief was served via mail, it was not due until May 26, 2011. As it

was received on May 24, 2011, the brief was timely and we decline to strike it.

      {¶7} In his sole assignment of error, Carrigan argues that he should have

been reimbursed for the out-of-pocket legal expenses incurred by him or by his

counsel in connection with the appeal filed from the Industrial Commission

pursuant to R.C. 4123.512. He asserts that when a claimant is found to be eligible


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to participate in the fund, R.C. 4123.512(F) mandates a broad recovery for the

costs associated with the legal proceedings as the statute is designed to minimize

the actual expenses incurred by the injured worker.

       {¶8} The BWC contends that the trial court did not err in denying a portion

of the requested expenses. First, the BWC argues that the fees and expenses

related to Dr. Shiple’s deposition must be denied because his deposition was never

filed with the trial court. Second, the BWC argues that it must pay either the

stenographic cost of Dr. Clark’s deposition or the videotaped deposition as the

costs are duplicative and not allowed under Breidenbach v. Conrad. The BWC

argues that the remaining expenses are not reimbursable as they are not expressly

permitted by statute and were not used at trial, but rather are discovery costs,

distinguishable from costs associated with presenting evidence at trial.

       {¶9} 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 will not be disturbed

absent an abuse of discretion. Wasinksi v. PECO II, Inc., 189 Ohio App.3d 550,

554-55, 939 N.E.2d 883, 2010-Ohio-4293; Ley v. Proctor & Gamble Co., 3d Dist.

No. 1-09-41, 2010-Ohio-834, ¶47, citing Dixon v. Ford Motor Co., 8th Dist. No.

82148, 2003-Ohio-3959, ¶5. 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



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unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140.

      {¶10} R.C. 4123.512 provides that a claimant who successfully appeals the

denial of workers’ compensation benefits is entitled to recovery of certain costs.

Specifically, R.C. 4123.512(D) and (F) govern a claimant’s reimbursement of

costs of an appeal to the trial court. Reimbursement for a claimant’s physicians’

depositions is addressed by R.C. 4123.512(D), which provides:

      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 . . . 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 . . . is finally sustained or established in the appeal.

      {¶11} Thus, 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 v.

Chrysler Corp., 92 Ohio St.3d 184, 186, 749 N.E.2d 267, 2001-Ohio-166. R.C.

4123.512(F) is a broader provision which allows reimbursement for costs of legal

proceedings and attorney’s fees if the claimant is successful on appeal and has

been found eligible to participate in the workers’ compensation fund.         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

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       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.

       {¶12} Thus, a successful claimant is entitled to recover expenses that

qualify as “costs of legal proceedings” pursuant to R.C. 4123.512(F).

“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.” Wasinski, 189 Ohio App.3d at 556, citing Cave v. Conrad, 94 Ohio

St.3d 299, 301, 762 N.E.2d 991, 2002-Ohio-793, Moore v. General Motors Corp.

(1985), 18 Ohio St.3d 259, 262, 480 N.E.2d 1101, Schuller v. United States Steel

Corp., 103 Ohio St.3d 157, 814 N.E.2d 857, 2004-Ohio-4753. The Ohio Supreme

Court explained that R.C. 4123.512(D) and (F) were designed to minimize the

actual expense incurred by an injured employee who established his or her right to

participate in the fund. Because a claimant who may rightfully participate in the

fund must incur additional out-of-the-ordinary expenses during an appeal in order

to establish that right while other claimants do not incur those additional expenses,

R.C. 4123.512(F) serves to diminish that incongruity. Kilgore, 92 Ohio St.3d at

187.



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       {¶13} The relevant statutory language of R.C. 4123.512(F), “cost of any

legal proceedings,” 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.” Schuller, 103 Ohio St.3d at

159, citing Kilgore, 92 Ohio St.3d at 188. Reasonable litigation expenses that

might have the effect of unreasonably dissipating a claimant’s award are

reimbursable. Kilgore, 92 Ohio St.3d at 188, citing Moore, 18 Ohio St.3d at 262.

This Court has held that expenses incurred in connection with the preparation and

presentation of a claimant’s appeal are reimbursable. Wasinski, 189 Ohio App.3d

at 557 (holding that the trial court did not abuse its discretion in awarding the costs

of two physicians’ depositions despite the failure to use one of them as evidence at

trial as the deposition that was ultimately determined to be inadmissible

nonetheless led to the second physician’s testimony that was admitted and was

therefore   instrumental    in   preparing     and   presenting   claimant’s   claim).

“Reimbursement for such expenses is subject to the trial court’s determination of

their reasonable necessity to the presentation of the claimant’s appeal.” Schuller,

103 Ohio St.3d at 159, citing Kilgore, 92 Ohio St.3d at 188.

       {¶14} In the present case, Carrigan argues that the trial court abused its

discretion by denying six costs he requested for reimbursement, specifically: 1)

Claimant’s expert physician’s fee for a legal conference held on the same date as

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Case No. 13-11-08



his first deposition in the amount of $580.00,4 2) the costs for the videotaped

deposition of Dr. Clark’s second deposition in the amount of $330.93, 3) the

physician’s fees for the deposition of Dr. Shiple in the amount of $1,000.00,5 4)

the cost for the stenographic deposition of Carrigan’s deposition in the amount of

$279.00, 4) the costs for the court reporter’s attendance at four witness’

depositions in the amount of $195.00, and 5) the costs for the stenographic

transcripts of the depositions of those four witnesses in the amount of $297.20.

           {¶15} Initially we note that upon reviewing the judgment entry, the motion

for reimbursement, and the attached documentation of appellant’s expenses, the

trial court’s award appears to be arbitrary. As the judgment entry is devoid of any

support in fact or in law for its findings to rebut such appearance, this Court is

incapable of deferring to the trial court’s findings. It is upon this notion that we

proceed.

           {¶16} A review of the motion for reimbursement and the attached

statements reveals that the requested costs appear to be directly related to and

reasonably necessary for the Claimant’s appeal. The BWC argues that according

to this Court’s precedent, duplicative costs for both the transcript and the video of

the deposition are not reimbursable, citing Breidenbach v. Conrad. (1997), 122

Ohio App.3d 640, 702 N.E.2d 509 (Shaw, J., dissenting).
4
    The trial court awarded the same fee for the second deposition.
5
    This deposition was in fact filed with the trial court. Docket No. 49.

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           {¶17} In Breidenbach, this Court held that a successful claimant was not

entitled to both stenographic and video costs of depositions under R.C.

4123.512(D) and/or (F). While it may have aided the BWC’s case, Breidenbach

has been superseded by Cave, in which the Ohio Supreme Court held that

reasonable videotaped deposition expenses may be taxed as costs and awarded to a

successful workers’ compensation claimant under R.C. 4123.512(F). Cave, 94

Ohio St.3d at 302. In Cave, the claimant played the videotaped depositions of two

expert witnesses for the jury at trial.6                      The Supreme Court explained that

Sup.R.13(D)(2) provides that “[t]he reasonable expense of recording testimony on

videotape . . . shall be allocated as costs in the proceeding in accordance with

Civ.R. 54.” Id., citing Sup.R.13(D)(2).                          Accordingly, the Supreme Court

determined that reasonable videotaped deposition expenses could be awarded to a

successful workers’ compensation claimant as “cost[s] of any legal proceedings”

under R.C. 4123.512(F) and notwithstanding that the costs of the stenographic

transcription of the same deposition are reimbursable under R.C. 4123.512(D).

Cave, 94 Ohio St.3d at 300-02.

           {¶18} Further, the BWC argues that the remaining expenses should not

have been reimbursed as they are discovery expenses rather than the expenses

associated with their use at trial, and that because the witness depositions were not

6
    Unlike in Cave, the record before this Court is silent as to what evidence was introduced at trial.

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used at trial, the trial court did not err in failing to order reimbursement. The

BWC cites to other appellate districts that have concluded that discovery expenses

are not reimbursable under subsection (F). This Court stated in Wasinksi, supra,

that Civ.R. 32, which governs the use of depositions in all court proceedings, does

not distinguish between trial and discovery depositions. Further, so long as the

depositions were reasonable litigation expenses connected with the preparation

and presentation of the claimant’s appeal, they bore a direct relation to the

claimant’s success even if not admitted at trial.    Wasinksi, 189 Ohio App.3d at

557.

       {¶19} In the instant case, the record is devoid of any indication of what

evidence was used in the presentation at trial. Nonetheless, it appears that the

costs were, in fact, reasonable and used in the preparation for and in direct relation

to the Claimant’s appeal. Accordingly we sustain Appellant’s assignment of error

and remand this case to the trial court for further consideration in light of the

foregoing analysis.

       {¶20} Having found error prejudicial to Carrigan herein, in the particulars

assigned and argued in his sole assignment of error, we reverse the judgment of

the trial court and remand for further proceedings consistent with this opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded
SHAW and WILLAMOWSKI, J.J., concur.

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