[This decision has been published in Ohio Official Reports at
94 Ohio St.3d 299.]
CAVE, APPELLEE, v. CONRAD, ADMR., APPELLANT, ET AL.
[Cite as Cave v. Conrad, 2002-Ohio-793.]
Workers’ compensation—Pursuant to R.C. 4123.512(F), reasonable videotaped
deposition expenses may be taxed as costs and awarded to a successful
workers’ compensation claimant in an action brought pursuant to R.C.
4123.512.
(No. 00-2083—Submitted December 11, 2001—Decided February 27, 2002.)
APPEAL from the Court of Appeals for Pike County, No. 00CA645.
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SYLLABUS OF THE COURT
Pursuant to R.C. 4123.512(F), reasonable videotaped deposition expenses may be
taxed as costs and awarded to a successful workers’ compensation claimant
in an action brought pursuant to R.C. 4123.512.
__________________
DOUGLAS, Acting C.J.
{¶ 1} On March 6, 1985, appellee, Yolanda Cave, suffered an industrial
injury during the course of and arising from her employment. The Industrial
Commission allowed appellee’s initial claim for injuries sustained to her neck and
back. On May 13, 1996, appellee sought to reactivate her workers’ compensation
claim by filing for recognition of an additional medical condition, disc herniation.
The Industrial Commission denied this additional condition.
{¶ 2} Pursuant to R.C. 4123.512, appellee filed an appeal from the denial of
this claim on March 10, 1997, to the Pike County Court of Common Pleas. A jury
trial was held, during which appellee presented the videotaped deposition testimony
of two expert witnesses, Dr. Thomas J. Hawk and Dr. R. Michael Kelly. The jury
returned a verdict in favor of appellee, finding that she was entitled to an award
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from the Workers’ Compensation Fund for the condition of disc herniation. On
October 12, 1999, the trial court entered judgment on the verdict and, pursuant to
R.C. 4123.512(D) and (F), further ordered the Bureau of Workers’ Compensation
to pay appellee certain expenses incurred by her in connection with her trial.
{¶ 3} The trial court also permitted appellee to file a motion to tax as costs
certain expenses for videotaping the depositions of Drs. Hawk and Kelly.
Following a hearing on the motion, the trial court ordered the videotaped deposition
expenses to be paid by the bureau as “cost of legal proceedings” pursuant to R.C.
4123.512(F).
{¶ 4} Appellant, the Administrator of Workers’ Compensation, filed an
appeal to the Pike County Court of Appeals. The sole issue raised by appellant was
in regard to the trial court’s order awarding appellee the expenses of the
videotaping. The court of appeals affirmed the trial court’s ruling. Cave v. Conrad
(2000), 140 Ohio App.3d 202,
746 N.E.2d 1179. This cause is now before this
court upon the allowance of a discretionary appeal.
{¶ 5} Both the trial court and the court of appeals held that R.C.
4123.512(F) entitled appellee as the prevailing party to recover from the bureau the
videotaped deposition expenses as the “cost of any legal proceeding.” Both courts
arrived at this conclusion even though R.C. 4123.512(D) also required the bureau
to pay appellee the costs of stenographic transcription of the same depositions.
{¶ 6} Appellant questions the propriety of assessing “dual payments” for
both videotaped deposition costs and stenographic deposition costs. Appellant
contends that neither the bureau nor a self-insured employer should ever be
responsible for paying both. We disagree.
{¶ 7} R.C. 4123.512 sets forth the procedure in cases of injury or
occupational disease whereby a claimant or an employer may appeal an order of
the Industrial Commission or an order of a staff hearing officer from which the
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commission has refused to hear an appeal. R.C. 4123.512 contains two provisions,
R.C. 4123.512(D) and (F), whereby a claimant may recover costs of an appeal.
{¶ 8} R.C. 4123.512(D) provides:
“The bureau of workers’ compensation shall pay the cost of the
stenographic deposition filed in court and of copies of the stenographic deposition
for each party from the surplus fund and charge the costs thereof against the
unsuccessful party if the claimant’s right to participate or continue to participate is
finally sustained or established in the appeal.”
{¶ 9} In Akers v. Serv-A-Portion, Inc. (1987), 31 Ohio St.3d 78, 31 OBR
190,
508 N.E.2d 964, the court interpreted paragraph six of former R.C. 4123.519,
the substantively identical precursor to R.C. 4123.512(D), as providing that “[t]he
stenographic and reproduction costs of depositions are to be paid from the Industrial
Commission surplus fund under the ‘cost of the deposition’ provision …
whether or not the claimant successfully establishes a right to participate under the
Workers’ Compensation Act.”
Id. at syllabus; for former R.C. 4123.519, see 137
Ohio Laws, Part II, 3940. The court determined that stenographic and reproduction
costs of depositions are borne by the surplus fund in the first instance and that,
under this section, reimbursement of the surplus fund is conditioned on claimant’s
right to participate in the fund being established or sustained on appeal. In that
event, the stenographic and reproduction deposition costs are to be charged against
the nonprevailing party, either the self-insured employer or the Industrial
Commission.
Id. at 79-80, 31 OBR at 192,
508 N.E.2d at 965-966. Thus, according
to former R.C. 4123.519 and current R.C. 4123.512(D), a claimant never bears
responsibility for stenographic deposition costs, regardless of the outcome of his or
her claim.
{¶ 10} R.C. 4123.512(F), the second subsection allowing for taxing of
costs, provides:
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“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.”
{¶ 11} This court has on prior occasions concluded that the phrase “cost of
any legal proceedings” in R.C. 4123.512(F) is considerably broader in scope than
the phrase “cost of the deposition” in R.C. 4123.512(D). In interpreting this
section, this court has consistently adhered to the mandate of R.C. 4123.95 to
construe workers’ compensation laws liberally in favor of employees and the
dependents of deceased employees. For instance, in Moore v. Gen. Motors Corp.
(1985), 18 Ohio St.3d 259, 18 OBR 314,
480 N.E.2d 1101, the court held that an
expert witness’s fee for preparing for and giving a deposition was reimbursable
under the predecessor section to R.C. 4123.512(F), R.C. 4123.519. Additionally,
we recently held that “an attorney’s travel expenses incurred in taking a deposition
of an expert are a reimbursable ‘cost of any legal proceedings’ under R.C.
4123.512(F).” Kilgore v. Chrysler Corp. (2001),
92 Ohio St.3d 184,
749 N.E.2d
267, syllabus.
{¶ 12} Central to the court’s dispositions in Moore and Kilgore was the
rationale that statutes providing for reimbursement of costs to successful claimants
in workers’ compensation appeals are “designed to minimize the actual expense
incurred by an injured employee who establishes his or her right to participate in
the fund.” Moore, 18 Ohio St.3d at 261-262, 18 OBR at 316,
480 N.E.2d at 1103.
Accordingly, in enacting statutes such as R.C. 4123.512(F), the General Assembly
“has demonstrated its intent that a claimant’s recovery shall not be dissipated by
reasonable litigation expenses connected with the preparation and presentation of
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an appeal pursuant to R.C. 4123.519,” the predecessor of R.C. 4123.512. Id. at
262, 18 OBR at 317,
480 N.E.2d at 1103; see, also, Kilgore,
92 Ohio St.3d at 186,
749 N.E.2d at 271. We see no reason to retreat from that reasoning now.
{¶ 13} Appellant also argues that costs taxable to the nonprevailing party
are allowed only by authority of statute. Appellant contends that according to
Williamson v. Ameritech Corp. (1998), 81 Ohio St.3d 342,
691 N.E.2d 288, there
is no statute allowing deposition expenses to be taxed and included in the judgment.
{¶ 14} It is true that “[t]his court has consistently limited the categories of
expenses which qualify as ‘costs.’ ” Centennial Ins. Co. v. Liberty Mut. Ins. Co.
(1982), 69 Ohio St.2d 50,
23 O.O.3d 88, 89,
430 N.E.2d 925, 926. “Costs are
generally defined as the statutory fees to which officers, witnesses, jurors and others
are entitled for their services in an action and which the statutes authorize to be
taxed and included in the judgment.” Benda v. Fana (1967),
10 Ohio St.2d 259,
39
O.O.2d 410,
227 N.E.2d 197, paragraph one of the syllabus. “The subject of costs
is one entirely of statutory allowance and control.” State ex rel. Michaels v. Morse
(1956),
165 Ohio St. 599, 607,
60 O.O. 531, 535,
138 N.E.2d 660, 666, principle
reaffirmed in Centennial Ins. Co. v. Liberty Mut. Ins. Co.,
69 Ohio St.2d at 51, 23
O.O.3d at 89,
430 N.E.2d at 926, and quoted in Vance v. Roedersheimer (1992),
64
Ohio St.3d 552, 555,
597 N.E.2d 153, 156.
{¶ 15} Notwithstanding, we find this argument of appellant not to be well
taken. What appellant fails to recognize is that a distinct difference exists between
civil cases in general and those involving workers’ compensation claims. The court
noted in Moore that compared to a tort action where more than mere economic
losses may be sought, “[u]nder the terms of participation in the State Insurance
Fund, a claimant may recover relatively modest amounts.” Moore, 18 Ohio St.3d
at 262, 18 OBR at 316,
480 N.E.2d at 1103. Thus, because a workers’
compensation claim is confined to recovery of only part of a claimant’s economic
loses, and “costs” are expressly provided for in R.C. 4123.512, “the traditional
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dichotomy between ‘costs’ and ‘expenses’ in civil cases … is not directly
applicable in the workers’ compensation area.” Kilgore, 92 Ohio St.3d at 187, 749
N.E.2d at 271.
{¶ 16} Moreover, the Ohio Rules of Superintendence have made videotaped
deposition costs an exception to the long-standing principle that costs are allowed
solely by statutory authority. We have previously recognized that videotaped
depositions are governed by the Ohio Rules of Superintendence. State ex rel.
Williams v. Colasurd (1995), 71 Ohio St.3d 642, 645-646,
646 N.E.2d 830, 833,
citing Gold v. Orr Felt Co. (1985),
21 Ohio App.3d 214, 216, 21 OBR 228, 231,
487 N.E.2d 347, 349. In Williams, the court found that former C.P.Sup.R. 12(D)(1)
allowed for various expenses associated with videotaped depositions and specified
“by whom the costs are to be assumed.” Id. at 645,
646 N.E.2d at 833; see
59 Ohio
St.2d xxxvii for former C.P.Sup.R. 12. Similar provisions are now in Sup.R. 13,1
which provides, “The reasonable expense of recording testimony on videotape, the
expense of playing the videotape recording at trial, and the expense of playing the
videotape recording for the purpose of ruling upon objections shall be allocated as
costs in the proceeding in accordance with Civil Rule 54.”2 Sup.R. 13(D)(2).
{¶ 17} Furthermore, in Barrett v. Singer Co. (1979), 60 Ohio St.2d 7,
14
O.O.3d 122,
396 N.E.2d 218, the court held, “The expense of videotape depositions
not used as evidence at trial is to be borne by the party taking such depositions and
not taxed as costs in the action.” (Emphasis added.)
Id. at syllabus. See, also,
Fairchild v. Lake Shore Elec. Ry. Co. (1920),
101 Ohio St. 261,
128 N.E.2d 168,
paragraph three of the syllabus (“Either party may take depositions while error
proceedings are pending in a reviewing court to reverse the judgment of the trial
1. See 78 Ohio St.3d CCVII.
2. Civ.R. 54(D) provides:
“Except when express provision therefor is made either in a statute or in these rules, costs
shall be allowed to the prevailing party unless the court otherwise directs.”
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court. If such depositions are not used, the expense of taking them cannot be taxed
in the costs of the case.”). In Barrett, the court noted that “the judicial decisions
prior to the adoption of the Ohio Rules of Superintendence reveal that the expense
of depositions taken de bene esse is to be taxed as costs only if the depositions were
used at trial, unless there are overriding considerations.” (Emphasis sic.) Id. at 9,
14 O.O.3d at 123,
396 N.E.2d at 219.
{¶ 18} The videography expenses now in dispute concern the
videographer’s attendance and the cost of the videotape. The trial court was correct
to tax costs of the videotaped deposition against the bureau. Sup.R. 13(D)(1) does
provide, however, that “[t]he expense of videotape as a material shall be borne by
the proponent.” Thus, the trial court erred in including in the award the cost of the
videotape as a material.
{¶ 19} Accordingly, we hold that pursuant to R.C. 4123.512(F), reasonable
videotaped deposition expenses may be taxed as costs and awarded to a successful
workers’ compensation claimant in an action brought pursuant to R.C. 4123.512.
Thus, the judgment of the court of appeals is affirmed in part and reversed in part,
and the cause is remanded to the trial court for further proceedings consistent with
this opinion.
Judgment affirmed in part,
reversed in part
and cause remanded.
RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in syllabus and judgment.
MOYER, C.J., not participating.
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Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
Eric S. Bravo, for appellee.
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Betty D. Montgomery, Attorney General, and Gerald H. Waterman,
Assistant Attorney General, for appellant.
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