[Cite as Holmes v. Crawford Machine, Inc., 2011-Ohio-5741.]




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


JEFF HOLMES,

        PLAINTIFF-APPELLANT,                                  CASE NO. 3-11-09

        v.

CRAWFORD MACHINE, INC., ET AL.,                               OPINION

        DEFENDANTS-APPELLEES.


JEFF HOLMES,

        PLAINTIFF-APPELLANT,                                  CASE NO. 3-11-10

        v.

CRAWFORD MACHINE, INC., ET AL.,                               OPINION

        DEFENDANTS-APPELLEES.


JEFF HOLMES,

        PLAINTIFF-APPELLEE,

        v.                                                    CASE NO. 3-11-12

CRAWFORD MACHINE, INC.,

        DEFENDANT-APPELLANT,
        -and-                                                 OPINION

STATE OF OHIO, BWC,

        DEFENDANT-APPELLEE.
Case No. 3-11-09, 10 and 12




            Appeals from Crawford County Common Pleas Court
               Trial Court Nos. 10 CV 0221 and 11 CV 0003

                       Judgment Affirmed in Case No. 3-11-09

                   Judgment Reversed and Cause Remanded
                        in Appellate Case No. 3-11-10

                   Judgment Reversed and Cause Remanded
                        in Appellate Case No. 3-11-12

                     Date of Decision: November 7, 2011



APPEARANCES:

      Barbara A. Knapic and Denise A. Gary for Crawford Machine, Inc.

      Jerald A. Schneiberg and Jennifer L. Lawther for Jeff Holmes

      Kevin Reis for Industrial Commission of Ohio



PRESTON, J.

      {¶1} We are presented with three cases stemming from an injury that

plaintiff/employee, Jeff Holmes (hereinafter “Holmes”), suffered on July 27, 2009

while working for defendant/employer, Crawford Machine, Inc. (hereinafter

“Crawford Machine”). We have elected to consolidate the cases for oral argument

and opinion. Our discussion will be divided by appellate case number.

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Case No. 3-11-09, 10 and 12



                             Appellate Case No. 3-11-09

          {¶2} In appellate case no. 3-11-09, plaintiff-appellant/employee, Holmes,

appeals the Crawford County Court of Common Pleas’ judgment entry finding

him entitled to participate in the workers’ compensation system for only one of six

of his alleged conditions as found by the jury. For the reasons stated herein, we

affirm the trial court’s judgment in this case.

          {¶3} On July 29, 2011, Holmes filed claim no. 09-835696 with the Ohio

Bureau of Workers’ Compensation (hereinafter “BWC”). (Doc. No. 1, Exs. A &

B).      The BWC Administrator originally allowed Holmes’ claim for “electric

current effects” and “sprain left shoulder/arm nos.” (Id., Ex. A). However, on

August 13, 2009, Crawford Machine appealed, and on October 14, 2009, the

District Hearing Officer vacated the Administrator’s order and denied the claim.

(Id.).

          {¶4} On October 19, 2009, Holmes appealed, and, on February 5, 2010, the

Staff Hearing Officer vacated the District Hearing Officer’s order and allowed

Holmes’ claim on the following conditions: (1) Left Shoulder Strain; (2) Electrical

Shock; (3) Low Back Strain; (4) Left Rotator Cuff Tear; (5) Left Posterior

Shoulder Dislocation; and (6) Abrasion Right Fifth Finger. (Id., Ex. B).




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Case No. 3-11-09, 10 and 12



        {¶5} On March 2, 2010, Crawford Machine appealed, but the Industrial

Commission refused the appeal pursuant to R.C. 4123.511(E) on March 10, 2010.

(Id., Ex. C).

        {¶6} On April 30, 2010, Crawford Machine filed a notice of appeal to the

Crawford County Court of Common Pleas pursuant to R.C. 4123.512, which was

assigned trial court case no. 10 CV 0221. (Doc. No. 1).

        {¶7} On May 26, 2010, Holmes filed his petition and complaint seeking a

declaration that he was entitled to participate in the workers’ compensation fund.

(Doc. No. 4). On June 22, 2010, Crawford Machine filed its answer. (Doc. No. 7).

        {¶8} The matter proceeded to jury trial on February 1-3, 2011. (Doc. No.

109). The jury rendered six verdicts, finding that Holmes was not entitled to

participate in the workers’ compensation fund for the following conditions: (1)

electrical shock; (2) left shoulder strain; (3) left rotator cuff tear; (4) low back

strain; and (5) left posterior shoulder dislocation. (Doc. Nos. 94, 96, 98, 100, 102).

However, the jury found that Holmes was entitled to participate in the workers’

compensation fund for the “abrasion right fifth finger” condition. (Doc. No. 104).

        {¶9} On March 2, 2011, Holmes filed a notice of appeal, which was

assigned appellate case no. 3-11-05. (Doc. No. 105).          On March 21, 2011,

however, this Court dismissed it for lack of a final, appealable order. (Doc. No.

108).

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Case No. 3-11-09, 10 and 12



        {¶10} On March 23, 2011, the trial court filed its judgment entry declaring

that Holmes was not entitled to participate in the workers’ compensation fund for

the five conditions mentioned above but was allowed to participate in the fund for

the condition of “abrasion right fifth finger,” as determined by the jury. (Doc. No.

109).

        {¶11} On April 19, 2011, Holmes filed a notice of appeal from the trial

court’s judgment entry, which was assigned appellate case no. 3-11-09. (Doc. No.

114).

        {¶12} Holmes now appeals, raising three assignments of error for our

review. We elect to discuss Holmes’ first and third assignments of error together.

                       ASSIGNMENT OF ERROR NO. I

        THE TRIAL COURT ERRED BY ADMITTING THE
        REPORTS FROM DONAN ENGINEERING, CARTER
        ELECTRIC, DR. JONES AND DR. BARKETT INTO
        EVIDENCE SINCE THE REPORTS ARE HEARSAY AND DO
        NOT FALL WITHIN ANY HEARSAY EXCEPTION.

                      ASSIGNMENT OF ERROR NO. III

        THE TRIAL COURT ERRED BY ADMITTING THE
        REPORTS   OF    DONAN   ENGINEERING,   CARTER
        ELECTRIC, DR. JONES AND DR. BARKETT SINCE THE
        REPORTS WERE NEEDLESS PRESENTATION OF
        CUMULATIVE EVIDENCE.

        {¶13} In his first assignment of error, Holmes argues that the trial court

erred by admitting the reports of Donan Engineering, Carter Electric, Dr. Jones,

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Case No. 3-11-09, 10 and 12



and Dr. Barkett into evidence since those reports were inadmissible hearsay.

Specifically, Holmes argues that the reports were not business records under

Evid.R. 803(6) since they were letters addressed to either Crawford Machine or

defense counsel and prepared for litigation. In his third assignment of error,

Holmes argues that the trial court erred by admitting the aforementioned reports

since opinion testimony was offered into evidence concerning the reports thereby

rendering the reports cumulative evidence.

       {¶14} We begin by acknowledging that a trial court has discretion to

determine whether to admit or exclude evidence. Krischbaum v. Dillon (1991), 58

Ohio St.3d 58, 66, 567 N.E.2d 1291. Therefore, an appellate court will not disturb

a trial court’s decision on the exclusion or admission of evidence absent an abuse

of discretion. Id. An abuse of discretion suggests the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶15} Hearsay evidence is defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Evid.R. 801(C). The Ohio Rules of Evidence

forbid the use of hearsay evidence at trial absent a recognized exception. Evid.R.

802. Evid.R. 803, however sets forth the following exception to the hearsay rule:



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Case No. 3-11-09, 10 and 12



      (6) Records of regularly conducted activity. A memorandum,
      report, record, or data compilation, in any form, of acts, events,
      or conditions, made at or near the time by, or from information
      transmitted by, a person with knowledge, if kept in the course of
      a regularly conducted business activity, and if it was the regular
      practice of that business activity to make the memorandum,
      report, record, or data compilation, all as shown by the
      testimony of the custodian or other qualified witness or as
      provided by Rule 901(B)(1), unless the source of information or
      the method or circumstances of preparation indicate lack of
      trustworthiness. The term “business” as used in this paragraph
      includes business, institution, association, profession, occupation,
      and calling of every kind, whether or not conducted for profit.

“‘Evid.R. 803(6) does not preclude the admissibility of opinions or diagnoses

contained in medical records or reports as long as they satisfy the foundational

authentication requirements of Evid.R. 803(6) and do not violate other evidentiary

rules (e.g. R.C. 2317.02(B); Evid.R. 402 and Evid.R. 702).’” Wasinski v. PECO II,

Inc., 3d Dist. Nos. 3-08-14, 3-08-16, 2009-Ohio-2615, ¶20, quoting Smith v.

Dillard’s Dept. Stores, Inc., 8th Dist. No. 75787, 2000-Ohio-2689.

      {¶16} Pat Baker, an electrician with Carter Electric, testified that, on or

about August 27, 2009, he inspected Acme Machine No. 28 at Crawford Machine.

(Feb. 2, 2011 Tr., Vol. II at 306-08). Baker identified defendant’s exhibit F as a

true and accurate copy of the report he prepared afterwards. (Id. at 317). Baker

testified that, based upon his examination of the machine and the statements he

collected concerning how the accident allegedly happened, Holmes could not have

sustained an electrical shock from the machine. (Id. at 318-19). Baker testified

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Case No. 3-11-09, 10 and 12



that Holmes could not have sustained an electrical shock “[b]ecause all the power

coming into the machine was through [a] disconnect, and the disconnect was

locked open and there was no other power source to the machine.” (Id. at 319).

         {¶17} Frank Miller, Jr., an electrical engineer with Donan Engineering,

testified that, in August 2009, he inspected Acme Machine No. 28 at Crawford

Machine at their request after an employee reported being shocked while working

on the machine. (Feb. 3, 2011 Tr., Vol. III at 445-47). After examining the

machine, Miller concluded that it was properly wired, and that Holmes was not

electrically shocked from it. (Id. at 447-48, 479). Miller identified defendant’s

exhibit M1 as a true and accurate copy of his investigation report. (Id. at 458).

Miller identified defendant’s exhibit M as a true and accurate copy of the

addendum to his earlier report (D’s Ex. M1), which was kept in the ordinary

course of his business. (Id. at 462). Miller testified that, as he stated in the

addendum to his earlier report, Holmes could not have suffered an electrical shock

from the machine. (Id. at 463).       On cross-examination, Miller testified that

Crawford Machine requested that he prepare reports based upon his investigation.

(Id. at 466). When asked whether Crawford Machine requested the reports for

litigation, Miller responded, “[i]nitially, it was not for litigation purposes. They,

basically, wanted to know what is wrong with this machine, if anything at all.”

(Id.).

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Case No. 3-11-09, 10 and 12



       {¶18} Dr. Jack Jones identified defendant’s Exhibit S as a true and accurate

copy of the report he prepared following his July 2010 examination of Holmes,

which report was kept in the ordinary course of his business. (Feb. 2, 2011 Tr.,

Vol. II at 330, 332-33). Dr. Jones testified that, prior to his July 2010 examination

of Holmes, he had an opportunity to review Holmes’ treatment records,

subsequent evaluations, surgical records, and physical therapy records. (Id. at

332). Dr. Jones testified that, after the July 2010 examination and his report, he

had the opportunity to review: Holmes’ medical records related to his two

previous workers’ compensation claims involving his lower back; a recent MRI of

Holmes’ lumbar spine; and the reports from Donan Engineering and Carter

Electric. (Id. at 333-34). Dr. Jones identified defendant’s exhibit T as a true and

accurate copy of the addendum to his report, which was kept in the ordinary

course of his business and made eleven days after he examined Holmes. (Id. at

334-35). Dr. Jones testified that Holmes did not suffer an electrical shock. (Id. at

360-61). When asked why he had that opinion, Dr. Jones testified:

       First, the electrical journeyman I guess two days after the injury
       found no flaws or defects with the machine that could have
       caused it. The forensic engineer from Donan Engineering found
       no way or evidence that any kind of arcing or any kind of
       electrical shock could have been sustained. And the -- there was
       no elevation in the muscle enzymes a few hours after this injury
       occurred in the emergency room or for several days thereafter
       that would suggest that kind of a severe tonic clonic kind of
       muscle contraction injury.

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Case No. 3-11-09, 10 and 12




On cross-examination, Dr. Jones testified that, in his first report, he did not have

an opinion regarding Holmes’ left shoulder sprain, electrical shock effects, low

back strain, left rotator cuff tear, left posterior shoulder dislocation, or the

abrasion, but he did have an opinion concerning those conditions in his second

report. (Id. at 392). Dr. Jones testified that, between his first and second reports,

he reviewed the reports of Donan Engineering and Carter Electric. (Id.). When

asked if he based the opinion found in his second report on these reports, Dr. Jones

testified “[t]hat was part of it, yes.” (Id.). Dr. Jones testified that, if Holmes did

sustain an electrical shock, it could have caused the aforementioned conditions.

(Id. at 395).

       {¶19} Dr. Robert Barkett, Jr. testified that he has been Holmes’ family

doctor for the past four years. (Id. at 411-12). Dr. Barkett identified defendant’s

exhibit X as a true and accurate copy of the report kept in the ordinary course of

business, which he prepared after he had an opportunity to review the reports of

Donan Engineering and Carter Electric. (Id. at 416-17). Dr. Barkett testified that

the Donan Engineering and Carter Electric reports contradicted Holmes’ version

of how the injury occurred. (Id. at 417-18). Dr. Barkett testified that he rendered

his first opinion after reading Dr. Zuesi’s and Dr. Novak’s reports and the

emergency room records, but he had to “reevaluate the situation” after reading the


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Case No. 3-11-09, 10 and 12



Donan Engineering and Carter Electric reports. (Id. at 418). Dr. Barkett testified

that, when he first saw Holmes, Holmes’ “symptoms were absolutely consistent

with an electrical injury”; however, his opinion changed after he read the Donan

Engineering and Carter Electric reports indicating that Holmes could not have

sustained an electrical shock. (Id. at 418-20). On cross-examination, Dr. Barkett

testified that his opinion that Holmes did not sustain an electrical shock was based

solely upon the Donan Engineering and Carter Electric reports. (Id. at 429). He

further testified that his opinion would be that Holmes sustained his injuries as a

result of the July 27, 2009 incident if it was discovered that those reports were

inaccurate. (Id. at 430).

       {¶20} Upon review of the foregoing testimony, we cannot conclude that the

trial court abused its discretion by admitting the reports of Donan Engineering

(D’s Exs. M & M1), Carter Electric (D’s Ex. F), Dr. Jones (D’s Exs. S & T), and

Dr. Barkett (D’s Ex. X). With respect to the Donan Engineering reports, Miller,

who conducted the forensic analysis of Acme Machine No. 28, authenticated

defendant’s exhibits M and M1 as true and accurate copies of his reports made

shortly after his examination of the machine in question. Miller further testified

that the reports were kept in the ordinary course of the business.    Nevertheless,

Holmes argues that these records were not trustworthy because they were made for

the purposes of litigation, citing Johnson v. Cassens Transport Co., 158 Ohio

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Case No. 3-11-09, 10 and 12



App.3d 193, 2004-Ohio-4011, 814 N.E.2d 545. In Johnson, we determined that a

trial court’s decision to exclude from evidence letters written by the claimant’s

attending physician to the claimant’s counsel in response to counsel’s inquiry after

litigation had begun was not unreasonable. 2004-Ohio-4011, at ¶19. Johnson does

not set forth a rule of mandatory exclusion as Holmes would have; rather, it

merely affirmed the trial court’s discretion in determining that the letters in that

case were not admissible under Evid.R. 803(6) because either “the source of

information or the method or circumstances of preparation indicate lack of

trustworthiness.” Furthermore, in this case the reports were not sent to counsel in

response to counsel’s inquiry after litigation had begun as in Johnson; rather, the

reports were sent to the employer after the employer hired Donan Engineering to

inspect the suspect machine. Even if the trial court erred in admitting the reports,

the trial court’s error was harmless since the reports were merely cumulative of

Miller’s testimony at trial. See Johnson, 2004-Ohio-4011, at ¶23; State v.

Tomlinson (1986), 33 Ohio App.3d 278, 281, 515 N.E.2d 963 (“where a declarant

is examined on the same matters as contained in impermissible hearsay statements

and where admission is essentially cumulative, such admission is harmless.”). For

all these reasons, we cannot conclude that the trial court erred by admitting the

Donan Engineering reports into evidence.



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Case No. 3-11-09, 10 and 12



      {¶21} With respect to the Carter Electric report, the trial court’s admission

of this evidence was harmless error. Although Baker testified that the report was a

true and accurate copy of his prepared report, he never actually testified that the

report was prepared in the ordinary course of the business as required under

Evid.R. 803(6). Lingo v. Leeper, 2nd Dist. No. 18865, 2002-Ohio-1205, at *2

(“Although Dr. Shear authenticated the report and its contents, he did not testify

that this report is an ordinary part of his business. Thus, the trial court could

reasonably conclude that this report is hearsay and it may be excluded.”).

Nevertheless, the trial court’s error in admitting the Carter Electric report was

harmless because the report was merely cumulative of Baker’s testimony at trial.

See Johnson, 2004-Ohio-4011, at ¶23; Tomlinson, 33 Ohio App.3d at 281.

      {¶22} We also cannot conclude that the trial court abused its discretion by

admitting Dr. Jones’ and Dr. Barkett’s reports into evidence. Holmes argues that

the physician reports were inadmissible under Evid.R. 803(6) because they were

essentially letters sent to defense counsel after legal proceedings began. Although

the trustworthiness of these reports is more questionable since they were submitted

to defense counsel after legal proceedings began similar to the reports in Johnson,

supra, it was still within the trial court’s discretion to allow the reports into

evidence. Regardless, any error in the admission of these reports would also be

harmless error because the reports were cumulative of Dr. Jones’ and Dr. Barkett’s

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Case No. 3-11-09, 10 and 12



testimony at trial. See Johnson, 2004-Ohio-4011, at ¶23; Tomlinson, 33 Ohio

App.3d at 281.

         {¶23} In his third assignment of error, Holmes’ argues that the trial court

erred by admitting the aforementioned reports because they were cumulative of

the testimony presented at trial.

         {¶24} Holmes did not object to the admission of the aforementioned reports

on the basis that they constituted cumulative evidence; and therefore, Holmes has

waived all but plan error on this issue. (Feb. 3, 2011 Tr., Vol. III at 483, 487, 490-

91). Proctor v. Wolber, 3d Dist. No. 5-01-38, 2002-Ohio-2593, ¶51. In civil

appeals, “the plain error doctrine is not favored and may be applied only in the

extremely rare case involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the basic fairness, integrity,

or public reputation of the judicial process, thereby challenging the legitimacy of

the underlying judicial process itself.” Goldfuss v. Davidson (1997), 79 Ohio St.3d

116, 679 N.E.2d 1099, syllabus. Holmes has failed to demonstrate that the trial

court’s admission of the cumulative evidence in this case constitutes civil plain

error.

         {¶25} Holmes’ first and third assignments of error are, therefore, overruled.




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Case No. 3-11-09, 10 and 12



                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED BY NOT STRIKING THE
       TESTIMONY OF DR. JONES AND DR. BARKETT IN
       VIOLATION OF EVIDENCE RULE 703.

       {¶26} In his second assignment of error, Holmes argues that the trial court

erred by failing to strike Dr. Jones’ and Dr. Barkett’s testimony since their

opinions were based upon the erroneously admitted hearsay contained in the

Donan Engineering and Carter Electric reports contrary to Evid.R. 703.

       {¶27} Evid.R. 703 requires that: “[t]he facts or data in the particular case

upon which an expert bases an opinion or inference may be those perceived by the

expert or admitted in evidence at the hearing.”

       {¶28} This argument lacks merit. As Holmes implicitly acknowledges, the

Donan Engineering and Carter Electric reports, upon which Dr. Jones and Dr.

Barkett relied, were admitted into evidence as required under Evid.R. 703.

Holmes’ argument, however, is that those reports should not have been admitted

for the reasons he articulated in his first and third assignments of error; and

therefore, Evid.R. 703 was not satisfied. Since we have already determined that

the trial court did not commit reversible error by admitting the reports into




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Case No. 3-11-09, 10 and 12



evidence, and the reports were, in fact, admitted into evidence, we must also reject

Holmes’ argument concerning Evid.R. 703.1

        {¶29} Holmes’ third assignment of error is, therefore, overruled.

        {¶30} Having found no error prejudicial to Holmes in the particulars

assigned and argued herein, we affirm the judgment of the trial court in appellate

case no. 3-11-09 (trial court case no. 10 CV 0221).

                                Appellate Case No. 3-11-10

        {¶31} In appellate case no. 3-11-10, plaintiff-appellant/employee, Holmes,

appeals the Crawford County Court of Common Pleas’ judgment entry dismissing

his subsequent complaint and petition to participate in the workers’ compensation

fund for additional allowances related to the same July 27, 2009 incident. For the

reasons stated herein, we reverse the trial court’s judgment in this case.

        {¶32} On April 22, 2009, Holmes filed a motion with the BWC seeking the

following additional allowances arising from his July 27, 2009 workplace injury:

(1) acute glenoid labral tear left shoulder; (2) impingement syndrome left

shoulder; (3) acute tendinosis left shoulder; and (4) substantial aggravation of pre-

existing condition—osteoarthritis left shoulder. (Doc. No. 1, Ex. A).

        {¶33} On August 18, 2010, the District Hearing Officer allowed all the

additional claims. (Id.). On September 2, 2010, Crawford Machine appealed, and,
1
  In fact, at oral argument, Holmes conceded that the success of his second assignment of error was
contingent upon the success of his first assignment of error.

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Case No. 3-11-09, 10 and 12



on October 21, 2010, a Staff Hearing Officer affirmed. (Id., Ex. B). On November

3, 2010, Crawford Machine appealed again, but, on November 10, 2010, the

Industrial Commission refused the appeal. (Id., Ex. C).

       {¶34} On January 3, 2011, Crawford Machine filed a notice of appeal with

the Crawford County Court of Common Pleas pursuant to R.C. 4123.512. (Doc.

No. 1). The matter was assigned trial court case no. 11 CV 0003. (Id.).

       {¶35} On February 2, 2011, Holmes filed a complaint and petition seeking

a declaration of his right to participate in the workers’ compensation fund for the

four additional allowances. (Doc. No. 5).

       {¶36} On March 10, 2011, Crawford Machine filed a Civ.R. 12(B)(6)

motion to dismiss the complaint and petition, and the trial court subsequently

granted the motion to dismiss on April 14, 2011. (Doc. Nos. 8, 11).

       {¶37} On May 11, 2011, Holmes filed a notice of appeal from the trial

court’s judgment, which was assigned appellate case no. 3-11-10. (Doc. No. 13).

This case was originally placed on our accelerated calendar, but we have elected,

pursuant to Loc.R. 12(5), to issue a full opinion in lieu of a summary journal entry.

       {¶38} Holmes now appeals raising one assignment of error for our review.

                          ASSIGNMENT OF ERROR

       THE LOWER COURT ERRED IN GRANTING THE
       DEFENDANT-EMPLOYER’S MOTION TO DISMISS AS


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Case No. 3-11-09, 10 and 12



       THERE EXISTS A SET OF FACTS THAT WARRANT
       PLAINTIFF-APPELLANT RECOVERING.

       {¶39} In his sole assignment of error, Holmes argues that the trial court

erred by dismissing his complaint under Civ.R. 12(B)(6) because he stated a claim

of entitlement to participate in the workers’ compensation fund.

       {¶40} “A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint.” State ex

rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548, 605

N.E.2d 378, citing Assn. for Defense of Washington Local School Dist. v. Kiger

(1989), 42 Ohio St.3d 116, 117, 537 N.E.2d 1292. See, also, Davis v. Widman,

184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶10. For that reason, a

trial court may not rely upon evidence or allegations outside the complaint when

ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander (1997), 79

Ohio St.3d 206, 207, 680 N.E.2d 985.

       {¶41} To sustain a Civ.R. 12(B)(6) dismissal, “it must appear beyond doubt

that the plaintiff can prove no set of facts in support of the claim that would entitle

the plaintiff to relief.” LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323,

2007-Ohio-3608, 872 N.E.2d 254, ¶14, citing Doe v. Archdiocese of Cincinnati,

109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. Additionally, the

complaint’s allegations must be construed as true, and any reasonable inferences


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must be construed in the nonmoving party’s favor. Id., citing Maitland v. Ford

Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶11; Kenty v.

Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 418, 650 N.E.2d 863.

       {¶42} This court reviews a trial court’s decision to grant or deny a Civ.R.

12(B)(6) motion de novo. RMW Ventures, L.L.C. v. Stover Family Invest., L.L.C.,

161 Ohio App.3d 819, 2005-Ohio-3226, 832 N.E.2d 118, ¶8, citing Hunt v.

Marksman Prod. (1995), 101 Ohio App.3d 760, 762, 656 N.E.2d 726. As such,

we may substitute, without deference, our judgment for that of the trial court.

Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d

340, 346, 604 N.E.2d 808.

       {¶43} Crawford Machine, in its motion to dismiss, alleged that Holmes’

“[c]omplaint fails to state a claim upon which relief can be granted given that it

has already been determined that [he] is not entitled to participate in the workers’

compensation fund for any of the left shoulder conditions in his underlying

workers’ compensation claim.” (Doc. No. 8). Crawford Machine, in its response

to Holmes’ brief in opposition, stated: “[i]t has already been determined by a jury

in this court that [Holmes] did not sustain an electrical shock in the course and

scope of his employment with the Defendant.” (Doc. No. 10).            Attached to

Crawford Machine’s motion to dismiss, and in support thereof, were the jury

verdict forms in trial court case no. 10 CV 0221. (Doc. No. 8, attached).

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Case No. 3-11-09, 10 and 12



       {¶44} Although the word “res judicata” never actually appears in the

defendant’s motion or response, Crawford Machine confirmed that res judicata

was the basis of its Civ.R. 12(B)(6) motion at oral argument. Civ.R. 12(B) does

not list res judicata among the defenses that may be raised by a motion to dismiss,

and therefore, a defendant may not raise res judicata in a Civ.R. 12(B) motion.

Hillman v. Edwards, 10th Dist. No. 10AP-950, 2011-Ohio-2677, ¶14, citing State

ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109, 579 N.E.2d 702. “The

necessity of relying on matters outside the pleadings to establish res judicata also

precludes the use of a Civ.R. 12(B)(6) motion to dismiss for raising that defense.”

Id., citing Musa v. Gillett Communications, Inc. (1997), 119 Ohio App.3d 673,

680, 696 N.E.2d 227.

       {¶45} Read in a light most favorable to him, Holmes’ petition stated a

claim for entitlement to participate in the workers’ compensation fund. Holmes’

petition alleged, in pertinent part, that: (1) Crawford Machine was amenable to the

Workers’ Compensation Act; and (2) on July 27, 2009, he sustained an injuries to

his left shoulder, low back, and right hand arising out of and in the course of his

employment with Crawford Machine. (Doc. No. 5). Reviewing the record in light

of Crawford Machine’s oral argument before this Court, it is clear that the trial

court dismissed Holmes’ complaint under Civ.R. 12(B)(6) based upon res judicata,

which was erroneous.

                                       -20-
Case No. 3-11-09, 10 and 12



        {¶46} Holmes’ sole assignment of error is, therefore, sustained.

        {¶47} Having found error prejudicial to Holmes in the particulars assigned

and argued herein, we reverse the judgment of the trial court in appellate case no.

3-11-10 (trial court case no. 11 CV 0003).

                            Appellate Case No. 3-11-12

        {¶48} In appellate case no. 3-11-12, defendant-appellant/employer,

Crawford Machine, appeals the Crawford County Court of Common Pleas’

judgment entry granting plaintiff-appellee/employee, Holmes, attorney’s fees and

costs associated with the prosecution of his workers’ compensation petition in

appellate case no. 3-11-09 (trial court case no. 10 CV 0221). For the reasons

stated herein, we reverse the trial court’s judgment in this case.

        {¶49} On April 5, 2011, after the jury in trial court case no. 10 CV 0221

determined that he was entitled to participate in the workers’ compensation fund

for his right fifth finger abrasion, Holmes filed a motion for attorney’s fees and

costs. (Doc. No. 113). On April 19, 2011, Crawford Machine filed a brief in

opposition. (Doc. No. 117).

        {¶50} On May 11, 2011, without holding a hearing and in a single-

paragraph entry, the trial court awarded Holmes $4,200.00 in attorney’s fees, the

statutory maximum, and $7,551.23 in costs, for a total of $11,751.23. (Doc. No.

118).

                                         -21-
Case No. 3-11-09, 10 and 12



      {¶51} On May 25, 2011, Crawford Machine filed a motion for

reconsideration, and on June 10, 2011, Crawford Machine filed a notice of appeal.

(Doc. Nos. 119, 120). This appeal was assigned appellate case no. 3-11-12.

      {¶52} Crawford Machine now appeals raising one assignment of error.

                         ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED IN GRANTING COSTS AND
      ATTORNEY FEES TO HOLMES.

      {¶53} In their sole assignment of error, Crawford Machine argues that the

trial court erred by taxing it attorney’s fees and costs under R.C. 4123.512(F).

Specifically, Crawford Machine argues that Holmes is not entitled to

reimbursement for attorney’s fees and costs associated with the conditions for

which the jury determined he was ineligible to participate in the workers’

compensation fund; namely, the conditions of: “electrical shock,” “left shoulder

strain,” “left rotator cuff tear,” “low back strain,” and “left posterior shoulder

dislocation.” In support of its argument, Crawford Machine cites this Court’s

decision in Booher v. Honda of Am. Mfg., Inc. (1996), 113 Ohio App.3d 798, 682

N.E.2d 657, appeal denied in Booher v. Honda of Am. Mfg., Inc., (1997), 77 Ohio

St.3d 1525, 674 N.E.2d 376.

      {¶54} Our inquiry begins with the plain language of the statutory authority

at issue. Iams v. DaimlerChrysler Corp., 174 Ohio App.3d 537, 2007-Ohio-6709,


                                      -22-
Case No. 3-11-09, 10 and 12



883 N.E.2d 466, ¶17. “It is a court’s responsibility to enforce the literal language

of a statute wherever possible; to interpret, not legislate. Unless a statute is

ambiguous, the court must give effect to its plain meaning.” Ohio Bur. of Workers’

Comp. v. Dernier, 6th Dist. No. L-10-1126, 2011-Ohio-150, ¶26, citing

Cablevision of the Midwest, Inc. v. Gross (1994), 70 Ohio St.3d 541, 544, 639

N.E.2d 1154; R.C. 1.49. However, if the statute is ambiguous—meaning it is

susceptible to more than one reasonable interpretation—the court may consider

several factors, “including the object sought to be obtained, circumstances under

which the statute was enacted, the legislative history, and the consequences of a

particular construction.” Bailey v. Republic Engineered Steels, Inc. (2001), 91

Ohio St.3d 38, 40, 741 N.E.2d 121. The interpretation of statutory authority is a

question of law requiring de novo review. Riedel v. Consol. Rail Corp., 125 Ohio

St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶6, citations omitted.

       {¶55} “Courts must liberally construe the workers’ compensation laws in

favor of employees.” Valentine v. PPG Industries, Inc., 158 Ohio App.3d 615,

2004-Ohio-4521, 821 N.E.2d 580, ¶11, citing R.C. 4123.95; Bailey, 91 Ohio St.3d

at 40. A liberal construction of the workers’ compensation laws requires courts to

adopt “the most comprehensive meaning of the statutory terms.” Id., citing Bailey,

91 Ohio St.3d at 40. The Ohio Supreme Court in Bailey stated:



                                       -23-
Case No. 3-11-09, 10 and 12



      A liberal construction has been defined as giving ‘generously all
      that the statute authorizes,’ and ‘adopting the most
      comprehensive meaning of the statutory terms in order to
      accomplish the aims of the Act and to advance its purpose, with
      all reasonable doubts resolved in favor of the applicability of the
      statute to the particular case. Interpretation and construction
      should not result in a decision so technical or narrow as to defeat
      the compensatory objective of the Act.’

91 Ohio St.3d at 40, quoting Fulton, Ohio Workers’ Compensation Law (2

Ed.1998) 9, Section 1.7. “A liberal construction directive, however, does not

empower us to read into a statute something that cannot reasonably be implied

from the statute’s language.” 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.           Furthermore, the liberal

construction directive “is supposed to favor only deserving employees.” Fulton,

Ohio Workers’ Compensation Law (3 Ed.2008) 10, Section 1.7, citing State ex rel.

Maurer v. Industrial Com’n of Ohio (1989), 47 Ohio St.3d 62, 547 N.E.2d 979.

      {¶56} R.C. 4123.512(D) and (F) govern a claimant’s recovery of attorney’s

fees and costs of an appeal to the trial court. R.C. 4123.512(D) provides for the

payment of filed physicians’ depositions and 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, 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

                                      -24-
Case No. 3-11-09, 10 and 12



       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.

Consequently, under R.C. 4123.512(D), the claimant is entitled to reimbursement

for the costs of his or her physician’s deposition if the deposition is filed with the

trial court, regardless of the outcome of the claimant’s appeal. Wasinski, 2010-

Ohio-4293, at ¶14, citing Kilgore v. Chrysler Corp (2001), 92 Ohio St.3d 184,

186, 749 N.E.2d 267.         Practically speaking, “[i]f the claimant loses, the

reimbursement comes from the Surplus Fund; if the claimant wins, reimbursement

is charged against the party challenging the claimant’s eligibility.” Kilgore, 92

Ohio St.3d at 186. While R.C. 4123.512(D) allows reimbursement regardless of

the claimant’s success, it includes “only the stenographic costs, which include the

cost of the court reporter attending the deposition and the fee for producing the

original and copies that are required, but does not include the cost of the

physician’s fee.” Colasurd, 71 Ohio St.3d at 644, quoting Perry v. Connor (1983),

8 Ohio App.3d 283, 456 N.E.2d 1340. Additionally, the deposition must be that of

“any physician taken in accordance with the provisions of the Revised Code which

may be read in the trial of the action * * *.” R.C. 4123.512(D); Sturgill v. Elder

Beerman Stores, Corp., 10th Dist. No. 02CA0062, 2003-Ohio-52, ¶9.



                                        -25-
Case No. 3-11-09, 10 and 12



“Presumably, the testimony of non-physician experts is not covered by R.C.

4123.512(D).” Sturgill, 2003-Ohio-52, at ¶9.

       {¶57} R.C. 4123.512(F), on the other hand, 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.

(Emphasis added). According to its plain language, then, the award of attorney’s

fees and “[t]he cost of any legal proceedings” under R.C. 4123.512(F) “shall” be

taxed against the party opposing the claimant’s right to participate in the workers’

compensation fund “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.”

By using the term “shall,” the General Assembly made mandatory the trial court’s

duty to tax costs to the applicable party once the claimant established his/her right

to participate or continue to participate in the fund. See Campbell v. Big Bear

Stores, Inc. (Nov. 25, 1996), 12th Dist. No. CA96-07-066, at *1, citing Alford v.

Republic Steel Corp. (1983), 12 Ohio App.3d 145, 146, 467 N.E.2d 567

(attorney’s fees under R.C. 4123.512(F) are mandatory). See, also, State ex rel.

Adams v. Aluchem, Inc., 104 Ohio St.3d 640, 2004-Ohio-6891, 821 N.E.2d 547,

                                        -26-
Case No. 3-11-09, 10 and 12



¶12, citing Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65

Ohio St.3d 532, 534, 605 N.E.2d 368 (“when it is used in a statute, the word

‘shall’ denotes that compliance with the commands of that statute is mandatory.”).

According to the statute’s plain language, whether the trial court must tax the cost

of the legal proceedings and attorney’s fees to the party opposing the claimant’s

right to participate in the fund is only contingent upon the claimant establishing

his “right to participate or continue to participate in the fund.”                               Therefore,

according to R.C. 4123.512(F)’s plain language, the trial court’s mandatory duty

to access costs and attorney’s fees is not contingent upon how many

claims/conditions the claimant is successful upon at trial.

         {¶58} Our interpretation of R.C. 4123.512(F)’s plain language is consistent

with precedent.2 In McGeehan v. State Bureau of Workers’ Compensation the

claimant filed a claim with the BWC for three conditions: (1) lumbar strain/sprain;

(2) aggravation of pre-existing lumbar degenerative disc disease; and (3) lumbar

instability. (Dec. 28, 2000), 10th Dist. No. 00AP-648, at *1. Following discovery,

but prior to trial, the employer conceded that the BWC had properly allowed the

lumbar strain/sprain claim. Id. A jury trial was conducted on the two remaining

2
  The relevant case law only discusses the trial court’s discretion in taxing costs. Nevertheless, we find the
case law also applicable to attorney’s fees since both costs and attorney’s fees are governed under the same
statute, and the trial court’s duty to tax both are triggered by the same statutory language, i.e. “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.”


                                                     -27-
Case No. 3-11-09, 10 and 12



conditions, and the jury determined that the claimant was not entitled to participate

in the workers’ compensation fund for those conditions. Id. Thereafter, the trial

court entered judgment finding that the claimant was entitled to participate in the

workers’ compensation fund for lumbar sprain/strain only, as previously conceded

by the employer prior to trial. Id. Following that judgment entry, the claimant

filed a motion for attorney’s fees and costs pursuant to R.C. 4123.512(D) and (F).

Id. The trial court denied the motion, citing case law holding that the claimant

must be “successful” to be awarded attorney’s fees and costs. Id. at *1-2. The trial

court determined that the claimant was not “successful” since he did not prevail on

the two conditions presented to the jury. Id. The claimant then appealed. Id.

       {¶59} On appeal, the claimant argued that the trial court erred by denying

his motion for costs under R.C. 4123.512(F). Id. The Court of Appeals ultimately

agreed.    The Appellate Court began its analysis by observing that R.C.

4123.512(F) does not use the term “successful,” though courts interpreting the

statute have required the claimant to be so in order to obtain attorney’s fees and

costs. Id. at *2. The Court continued:

       To the extent, however, that courts have so interpreted the
       statute, they require only that the claimant be successful in
       either acquiring or maintaining a right to participate in the
       workers’ compensation fund. * * * Thus a “successful” claimant
       is one that is allowed to participate upon final determination by
       the court of common pleas. As noted above, the trial court’s
       judgment entry unequivocally stated that plaintiff is entitled to

                                         -28-
Case No. 3-11-09, 10 and 12



       participate. Consequently, plaintiff is entitled to fees under R.C.
       4123.512(F).

Id. Therefore, the Tenth District determined that the trial court erred by refusing

to award the claimant attorney’s fees and costs under R.C. 4123.512(F) since the

trial court had determined the claimant was entitled to participate in the workers’

compensation fund for lumbar sprain/strain, even though that condition was never

submitted to the jury. Id. at *3.

       {¶60} A few years later the Tenth District relied upon McGeehan to

specifically conclude that a claimant was entitled to recover costs related to his

unsuccessful claims if the claimant prevailed on at least one claim. Hollar v.

Pleasant Twp., 10th Dist. No. 03AP-250, 2003-Ohio-6827.           In that case, the

claimant had a previously allowed claim for lumbar strain. Id. at ¶1. The claimant

filed a motion requesting that the claim be additionally allowed for: herniated disc

at L5-S1 and aggravation of pre-existing degenerative disc disease at L5-S1. Id. A

jury ultimately determined that the claimant was entitled to participate in the

workers’ compensation fund for the aggravation condition but not for the

herniated disc. Id. The trial court subsequently awarded the claimant attorney’s

fees and costs. Id. The employer then appealed. Id.

       {¶61} On appeal, the employer argued that the claimant was not entitled to

the costs associated with the physician who testified regarding the herniated disc


                                       -29-
Case No. 3-11-09, 10 and 12



condition since the claimant was unsuccessful on that claim. Id. at ¶20. In support

of its argument, the employer, like Crawford Machine herein, cited this Court’s

decision in Booher, 113 Ohio App.3d 798. Id. at ¶18.           The Tenth District

distinguished Booher on the basis that the trial court in Booher, unlike the trial

court in its case, denied the claimant costs associated with her unsuccessful

herniated disc claim. Id. The Tenth District then concluded: “that pursuant to

McGeehan, [the claimant] can recover his costs because he was successful with at

least one of his claims and we do not find an abuse of discretion by the trial court

in awarding such.” Id. at ¶20.

       {¶62} In Azbell v. Newark Group, Inc., the Fifth District concluded that the

trial court erred by denying the claimant the cost of an expert witness fee under

R.C. 4123.512(F) where: (1) the claimant prevailed upon one of his four alleged

claims/conditions at trial; and (2) the expert witness was retained and deposed for

all four claims/conditions. 5th Dist. No. 07 CA 00001, 2008-Ohio-2639. The

employer in Azbell, citing this Court’s decision in Booher, argued that costs should

be apportioned according to the parties’ rate of success at trial, i.e. the claimant

was only entitled to one-fourth (1/4) of the costs since the claimant only prevailed

on one of four claims/conditions at trial. 2008-Ohio-2639, at ¶40. The Fifth

District disagreed with the employer and distinguished Booher from its case on the

basis that the costs in Booher were easily apportioned between two expert

                                       -30-
Case No. 3-11-09, 10 and 12



witnesses, one who testified concerning the successful claim/condition and one

who testified concerning the unsuccessful claim/condition, unlike its case where

one expert witness testified concerning all the claims/conditions, some of which

were successful and others which were not. Id. at ¶¶41-42. The Fifth District

ultimately concluded that the claimant was a “successful claimant” under R.C.

4123.512(F) since he prevailed on one of his claims/conditions; and therefore, the

trial court abused its discretion by failing to award the claimant the expert witness’

fee as costs under the statute. Id. at ¶43.

       {¶63} Although R.C. 4123.512(F)’s plain language and prior precedent

indicate that the trial court has a mandatory duty to tax attorney’s fees and costs to

the opposing party once the claimant’s right to participate or continue to

participate in the fund is established and that duty is not contingent upon the

number of claims/conditions upon which the claimant prevails at trial, the Court of

Appeals has recognized that trial courts have discretion in awarding attorney’s

fees and costs under R.C. 4123.512(F). Wasinski, 2010-Ohio-4293, at ¶13,

citations omitted. Since the statute plainly indicates that a trial court’s duty to tax

attorney’s fees and costs is mandatory, a trial court’s discretion in awarding

attorney’s fees and costs under R.C. 4123.512(F) must be in determining the

extent and amount of the attorney’s fees and costs awarded. Dean v. Conrad

(1999), 134 Ohio App.3d 367, 372, 731 N.E.2d 212 (“The amount to be awarded

                                          -31-
Case No. 3-11-09, 10 and 12



and whether the testimony was reasonably necessary rests in the trial court’s

discretion.”). See, also, Fulton at 516, Section 12.7, citing Moore v. General

Motors Corp. (1985), 18 Ohio St.3d 259, 480 N.E.2d 1101 (A trial court may limit

the award of costs for expert witnesses to those whose testimony was reasonably

necessary to the successful prosecution of the claimant’s appeal).

       {¶64} This Court’s decision in Booher merely affirmed the trial court’s

discretion in determining the extent and amount of costs under R.C. 4123.512(F).

113 Ohio App.3d 798. In that case, the claimant presented two conditions to the

jury: (1) lumbar sprain; and (2) herniated disc. Booher, 113 Ohio App.3d at 799-

800. The jury found that the claimant was entitled to participate in the workers’

compensation fund for the lumbar sprain but not entitled to participate for the

herniated disc. Id. at 800. After trial, the claimant moved for attorney’s fees,

deposition costs, and expert witness fees. Id. The trial court held a hearing on the

motion and, thereafter, granted the motion in part and denied it in part. Id.; Id. at

804.   After reviewing the trial court’s judgment entry and the transcript of the

hearing, we concluded that the trial court did not abuse its discretion by denying

the claimant the costs of several physician depositions and expert witness fees

because those costs related to the claimant’s unsuccessful herniated disc claim. Id.

at 804. Since the deposition costs and expert witness fees in Booher were strictly

related to the claimant’s unsuccessful herniated disc claim/condition, we

                                        -32-
Case No. 3-11-09, 10 and 12



concluded that the trial court did not abuse its discretion by denying those costs.

113 Ohio App.3d at 803-04.

       {¶65} Booher does not stand for the proposition that a trial court

necessarily abuses its discretion by awarding such costs as Crawford Machine

argues. Rather, Booher stands for the proposition that a trial court, exercising its

discretion in determining the extent and amount of costs to tax the opposing party

under R.C. 4123.512(F), should consider the fact that a claimant prevailed upon

some but not all of his/her claims/conditions where consideration of the same is

both equitable and practicable. The trial court’s apportionment of costs in Booher

was equitable since it only awarded the claimant the costs associated with her

successful lumbar sprain claim/condition. 113 Ohio App.3d at 803-04. The trial

court’s apportionment of costs in Booher was practicable because the costs were

easily apportioned by which expert witnesses testified to the successful lumbar

sprain claim/condition and which expert witnesses testified to the unsuccessful

herniated disc claim/condition. Azbell, 2008-Ohio-2639, at ¶¶41-42.

       {¶66} While trial courts retain discretion in determining the extent and

amount of attorney’s fees and costs under R.C. 4123.512(F), their discretion is not

unlimited, but rather, is subject to review for an abuse of discretion. Wasinski,

2010-Ohio-4293, at ¶13; Ruta v. Breckenridge-Remy Co. (July 13, 1979), 6th Dist.

No. E-78-49, at *1, citing State ex rel. Steinkamp v. Davis (1899), 10 Ohio C.D.

                                       -33-
Case No. 3-11-09, 10 and 12



203, 18 Ohio C.C. 479, 1899 WL 657 (costs under Civ.R. 54(D)). An abuse of

discretion is more than an error of judgment; rather, it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at

219.

       {¶67} Since the Ohio Supreme Court has significantly expanded the types

of costs that trial courts may award under R.C. 4123.512(F), trial courts should be

vigilant in exercising their discretion in determining the extent and amount of

costs awarded. Moore, 18 Ohio St.3d at 262 (expert witness deposition fee);

Kilgore, 92 Ohio St.3d 184 (attorney’s travel expenses in taking the deposition of

an expert); Cave v. Conrad (2002), 94 Ohio St.3d 299, 301, 762 N.E.2d 991

(videotaped deposition expenses); Schuller v. United States Steel Corp., 103 Ohio

St.3d 157, 2004-Ohio-4753, 814 N.E.2d 857 (expert witness’s fee for live in-court

testimony). On the one hand, R.C. 4123.512(F) was “‘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 261-62.      On the other hand, R.C. 4123.512(F) does not allow

reimbursement for the claimant’s attorney’s everyday costs of doing business;

only “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.” Kilgore, 92 Ohio St.3d at 187-88.            Furthermore, our

                                        -34-
Case No. 3-11-09, 10 and 12



construction of the workers’ compensation laws “is supposed to favor only

deserving employees.” Fulton at 10, Section 1.7, citing Maurer, 47 Ohio St.3d 62.

         {¶68} With the applicable rules of law and precedent set forth, we now

address Crawford Machine’s arguments with respect to the particular fee or cost at

issue.

         1.    Dr. Zuesi’s Expert Witness Fee and Video Deposition

         {¶69} Holmes moved the trial court to award him Dr. Zuesi’s expert

witness fee and costs associated with Dr. Zuesi’s video deposition. (Doc. No.

113). It is unclear from Holmes’ motion whether he sought the cost of Dr. Zuesi’s

video deposition under R.C. 4123.512(D) or (F).3 (Id.). As Crawford Machine

argues, the trial court was not permitted to award both the cost of the Dr. Zuesi’s

deposition transcript and deposition video under R.C. 4123.512(D). George v.

Ohio Bur. of Workers’ Comp. (1997), 120 Ohio App.3d 106, 107, 696 N.E.2d

1101, citing Colasurd, 71 Ohio St.3d 642.                     Nevertheless, at oral argument,

Crawford Machine conceded that the trial court properly taxed it with the cost of

Dr. Zuesi’s video deposition so we need not address this issue further.

Consequently, the only issue left is whether the trial court abused its discretion by



3
  In Breidenbach v. Conrad (1997), 122 Ohio App.3d 640, 644-45, 702 N.E.2d 509, this Court stated that a
claimant could not recover video deposition costs under R.C. 4123.512(F); however, our decision in
Breidenbach was effectively overruled by the Ohio Supreme Court’s decision in Cave v. Conrad (2002), 94
Ohio St.3d 299, 301, 762 N.E.2d 991.

                                                 -35-
Case No. 3-11-09, 10 and 12



taxing Crawford Machine with Dr. Zuesi’s expert witness fee under R.C.

4123.512(F).

       {¶70} When asked if he examined Holmes’ right fifth finger, Dr. Zuesi

testified, “I did not document that I ever examined his right fifth finger * * * [s]o

the answer would be no.” (Zuesi Depo. at 32). When asked if he could render an

opinion on the five alleged conditions, Dr. Zuesi responded, “[w]ell, I can’t say

anything about the abrasion of the right fifth finger.” (Id. at 37). Therefore, Dr.

Zuesi’s testimony was strictly related to the four conditions upon which Holmes

failed to prevail at trial. As such, it was equitable and practicable for the trial

court not to tax Crawford Machine with Dr. Zuesi’s expert witness fee under R.C

4123.512(F) since that cost was strictly related to Holmes’ unsuccessful conditions

and could have been easily excluded. Booher, 113 Ohio App.3d at 804; Azbell,

2008-Ohio-2639, at ¶¶41-42.

       {¶71} The trial court’s decision to tax Crawford Machine with Dr. Zuesi’s

expert witness fee ($1,600.00) was especially unreasonable in light of Holmes’

minimal injury. The jury found that Holmes was entitled to participate in the

workers’ compensation fund for an “abrasion” to his right fifth (pinky) finger.

(Doc. No. 103). Dr. Zuesi testified that an “abrasion” occurs when “the epidermis

is breached so that there’s some bleeding coming either from the lower dermal

layers or sometimes even just under the surface of the skin. That would truly be a

                                        -36-
Case No. 3-11-09, 10 and 12



skin avulsion but if it were minor it would probably fall under the category of

abrasion.   It’s non-suturable.” (Zuesi Depo. at 14-15).     The evidence at trial

demonstrated that Holmes’ pinky finger had a “small skinned spot on the

knuckle,” which was treated with a bandage by a Crawford Machine safety

coordinator who had no medical training. (D’s Ex. E, E1); (Joint Ex. 1); (Feb. 1,

2011 Tr., Vol. I, at150, 195-98). It is also noteworthy that the trial court did not

hold a hearing before issuing its single-paragraph judgment entry taxing Crawford

Machine with all of Holmes’ requested costs. (May 11, 2011 JE, Doc. No. 118).

See Perry v. LTV Steel Co. (1992), 84 Ohio App.3d 670, 680, 618 N.E.2d 179

(discussing the necessity of a hearing to determine attorney’s fees). For all these

reasons, we conclude that the trial court’s decision to tax Crawford Machine with

Dr. Zuesi’s expert witness fee was unreasonable.

       2.   Stenographer at Dr. Zuesi’s Deposition

       {¶72} Holmes also requested the cost of attendance of a court reporter

(stenographer) at Dr. Zuesi’s deposition pursuant to R.C. 4123.512(D). (Doc. No.

113). Crawford Machine argues that this cost is only recoverable under R.C.

4123.512(F) and should not have been awarded for the same reasons it offered

above. Since the cost of the deposition under R.C. 4123.512(D) includes the cost

of the stenographer, we must reject Crawford Machine’s argument as to this cost.

Colasurd, 71 Ohio St.3d at 644, quoting Perry, 8 Ohio App.3d 283.

                                       -37-
Case No. 3-11-09, 10 and 12



      3.    Lay Witness’ Depositions

      {¶73} In his motion for costs, Holmes moved the trial court to award costs

associated with the depositions of six lay witnesses pursuant to R.C. 4123.512(D).

(Doc. No. 113). R.C. 4123.512(D), however, only allows for the costs of filed

physician depositions, not lay witness depositions. McGuire v. Mayfield (Dec. 9,

1991), 3d Dist. Nos. 1-90-83, 1-90-88, at *3 (interpreting former, analogous R.C.

4123.519(C)); Evans v. TNT Holland Motor Express (July 10, 1997), 8th Dist.

Nos. 71391, 71516, at *7; Talmon v. Quick Air Freight, Inc. (Oct. 5, 1995), 8th

Dist. No. 68879, at *2. See, also, Sturgill, 2003-Ohio-52, at ¶9 (“Presumably, the

testimony of non-physician experts is not covered by R.C. 4123.512(D).”).

Therefore, the trial court erred by ordering the payment of these costs under R.C.

4123.512(D). Upon remand, the trial court may consider the reasonableness of

taxing Crawford Machine with these costs under R.C. 4123.512(F).

      4.    Filing Fees, Fed-Ex Postage, and Exhibit Boards

      {¶74} In his motion for costs, Holmes moved the trial court to award costs

associated with filing fees, Fed-Ex postage, and trial exhibits boards pursuant to

R.C. 4123.512(D). (Doc. No. 113). These costs are not permitted under R.C.

4123.512(D), and it was error for the trial court to award them as costs under this

section. Upon remand, the trial court may consider the reasonableness of taxing

Crawford Machine with these costs under R.C. 4123.512(F).

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       5.   Travel Costs and Hotel Expenses

       {¶75} In his motion for costs, Holmes moved the trial court to award him

his attorney’s travel costs to and from the lay witness depositions, Dr. Zuesi’s

deposition, and trial. (Doc. No. 113). Holmes also moved the trial court to award

him his attorney’s lodging costs for attending trial. (Id.).

       {¶76} We find no abuse of discretion with regard to the trial court’s

decision to tax Crawford Machine with Holmes’ attorney’s travel costs to and

from the depositions of the lay witnesses under R.C. 4123.512(F) so long as those

depositions were not strictly related to Holmes’ unsuccessful claims/conditions.

See Kilgore, 94 Ohio St.3d 184, syllabus. However, the trial court’s decision to

tax Crawford Machine with Holmes’ attorney’s travel costs to attend Dr. Zuesi’s

deposition is unreasonable under R.C. 4123.512(F) since Dr. Zuesi’s testimony

was strictly related to Holmes’ unsuccessful claims/conditions and that cost was

easily excluded from the total costs. Finally, we find the trial court abused its

discretion by taxing Crawford Machine with Holmes’ attorney’s travel costs to

and from trial and lodging costs for trial, because those costs were “everyday costs

of doing business,” not directly related to the claimant’s claim, and therefore, not

reimbursable under R.C. 4123.512(F). Wasinski, 2010-Ohio-4293, at ¶¶21-23,

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



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      6.    Attorney’s Fees

      {¶77} In his motion for attorney’s fees, Holmes stated, “[b]ecause of the

amount of time that Plaintiff’s Counsel had to spend on this court case, Plaintiff’s

Counsel is entitled to the full $4,200.00 in fees as allowed by O.R.C. §

4123.512(F).” (Doc. No. 113). No affidavit, time sheets, or other supporting

documentation was submitted demonstrating the reasonableness of $4,200.00 in

attorney’s fees. (Id.). The trial court awarded Holmes the statutory maximum of

$4,200.00 in attorney’s fees without holding a hearing and in a single-paragraph

entry. (May 11, 2011 JE, Doc. No. 118).

      {¶78} When presented with a similar set of facts, the Court of Appeals for

the Sixth Appellate District concluded that the trial court’s award of the statutory

maximum fee was arbitrary. Lybarger v. Burma Farms, Inc. (Feb. 19, 1993), 6th

Dist. No. H-82-033. The Court in Lybarger reasoned as follows:

      In the case at bar, the trial court ordered appellant to pay the
      maximum allowable attorney fees, $2,500, even though no
      evidence had been presented as to the amount of attorney time
      expended, the attorney’s hourly rate, or the reasonableness of
      such efforts. The award of attorney fees is for the purpose of
      making the claimant whole, not for the purpose of punishing the
      unsuccessful appellant. The burden of proving the amount and
      reasonableness of such fees is upon the party claiming a right to
      such an award. Absent evidence of record concerning “efforts
      expended”, we can only conclude that the trial court’s decision
      to award the maximum allowable fee was arbitrary.



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We agree with Court’s analysis in Lybarger and conclude that the trial court’s

decision to tax Crawford Machine the statutory maximum amount of attorney’s

fees without any documentation evidencing the “effort expended” by trial counsel

was an abuse of its discretion.

       {¶79} Furthermore, the trial court should have held a hearing to determine

the appropriate amount of attorney’s fees to tax Crawford Machine. We concur

with the Court of Appeals in Perry v. LTV Steel Co. on the necessity of an

evidentiary hearing to determine attorney’s fees (and costs):

       The need for an evidentiary hearing, however, is self-evident in
       light of the increasing complexity of the majority of workers’
       compensation cases which are brought at the trial level. R.C.
       4123.519[F] provides that an award of attorney fees is to be
       based upon the “time and effort expended” by a claimant’s
       counsel. The calculation of such an award should not merely
       involve multiplication of hours expended by counsel times a base
       rate. To the contrary, the trial court should consider additional
       factors such as the complexity of the issues involved; the skill
       required; the attorney’s experience, ability and reputation; the
       amount involved and benefit resulting to the client from
       services; and the customary fee charged by other members of
       the bar.

84 Ohio App.3d at 680. The need for evidentiary hearings on attorney’s fees and

costs is even greater in light of our decision in this case.

       {¶80} Upon remand, the trial court must hold an evidentiary hearing to

determine a reasonable amount of attorney’s fees to tax Crawford Machine based

upon the “effort expended” by Holmes’ trial counsel as required under R.C.

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4123.512(F). The trial court should not tax Crawford Machine with any attorney’s

fees that are strictly related to Holmes’ unsuccessful claims/conditions, however,

as that would be unreasonable in this case.

       {¶81} Crawford Machine’s assignment of error is, therefore, sustained.

       {¶82} As a final matter, we recognize that our holding in this case conflicts

with the Tenth District’s holding in Hollar v. Pleasant Twp., 10th Dist. No. 03AP-

250, 2003-Ohio-6827.      Pursuant to Section 3(B)(4), Article IV, of the Ohio

Constitution, we certify a conflict between our holding here and the Tenth

District’s holding in Hollar v. Pleasant Twp. We certify the following question to

the Supreme Court of Ohio:

       When a claimant/employee petitions the common pleas court to
       participate in the workers’ compensation fund for multiple
       claims/conditions and the trier of fact finds that the
       claimant/employee is entitled to participate in the fund for at
       least one of those claims/conditions but not all of the
       claims/conditions, does the trial court abuse its discretion under
       R.C. 4123.512(F) by taxing an opposing party attorney’s fees
       and costs that are strictly related to the claims/conditions for
       which the trier of fact determined that the claimant/employee
       was ineligible to participate in the fund?

       {¶83} Having found error prejudicial to Crawford Machine in the

particulars assigned and argued herein, we reverse the judgment of the trial court

in appellate case no. 3-11-12 (trial court case no. 10 CV 0221) and remand for




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further proceedings consistent with this opinion.

                                          Judgment Affirmed in Case No. 3-11-09

                                        Judgment Reversed and Cause Remanded
                                                  in Appellate Case No. 3-11-10

                                        Judgment Reversed and Cause Remanded
                                                  in Appellate Case No. 3-11-12

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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