Keener v. Buehrer

 (2001), and this

Court’s decision in Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871,

2003-Ohio-6673

.

       {¶ 3} On February 28, 2017, “Defendant, Northmont City Schools’, Memorandum

in Opposition to Plaintiff’s Motion for Order on Plaintiff’s Application for Award of Attorney

Fees and Expenses” was filed.        Therein, Northmont noted that it did not object to

awarding Keener’s counsel fees in the amount of $4,200.00, but it objected to the

payment of $205.00 for the videographic expense of the deposition of Dr. deCaestecker,

the payment of $203.00 for a certified copy of Dr. Vogelstein’s deposition transcript, and

the payment of $272.65 for a certified copy of Keener’s deposition transcript. Regarding

deCaestecker’s deposition, Northmont asserted that Keener “may recover the

stenographic or videographic expenses of a physician’s videotaped deposition, but not

both.” Regarding Vogelstein’s deposition, Northmont asserted that Keener’s expense

for obtaining a transcript of Northmont’s expert should not be taxed as a cost to

Northmont, since the transcript was filed on February 2, 2017, and available through the
                                                                                             -4-


clerk’s office.   Northmont asserted that “according to the time records attached to

Plaintiff’s Motion …, Plaintiff’s counsel spent no time preparing for trial between the date

of Dr. Vogelstein’s deposition on January 19 and February 10. By that time, a copy of

Dr. Vogelstein’s deposition had been available through the clerk for over a week.”

Therefore, according to Northmont, “Plaintiff’s counsel’s expense for obtaining a certified

copy of the deposition transcript was not a necessary cost.” Finally, regarding Keener’s

deposition, Northmont asserted that the original transcript of Keener’s deposition was filed

on January 24, 2017, and Keener’s counsel’s “expense for obtaining a certified copy of

the deposition transcript was not a necessary expense.” Northmont relied upon State ex

rel. Williams v. Colasurd,

71 Ohio St.3d 642

646 N.E.2d 830

 (1995), George v.

Administrator, Ohio Bureau of Workers’ Compensation,

120 Ohio App.3d 106

696 N.E.2d 1101

 (2d Dist. 1997), and Robinson v. Conrad, 2d Dist. Darke No. 1604,

2003-Ohio-2961

.

       {¶ 4} Keener filed “Plaintiff’s Reply to Defendant’s Memorandum in Opposition” on

March 6, 2017. Therein he asserted that “more recent case law has expressly held that

reasonable videotaped deposition expenses could be awarded to a successful workers’

compensation claimant,” pursuant to R.C. 4123.512(F), “and notwithstanding that the

costs of stenographic transcription of the same deposition are reimbursable under R.C.

4123.512(D).”      He argued that “fees for certified copies of the defense expert’s

deposition transcript and Plaintiff’s deposition transcript should also be reimbursed as the

‘cost of any legal proceeding’ under R.C. 4123.512(F).” According to Keener, these

“expenses have a direct relation to a claimant’s appeal. The transcripts were reviewed

in preparation [for] trial and then relied upon at the trial itself.” Keener asserted that

Northmont “forced” him “to file an appeal with this Court in order to establish his right to
                                                                                          -5-


participate in the workers’ compensation system,” and he “incurred certain expenses,

including the fee associated with the videographic deposition and the costs of ordering

certified copies of depositions and, as part of the litigation process.” Keener directed the

trial court’s attention in part to Cave v. Conrad,

94 Ohio St.3d 299

2002-Ohio-793

762 N.E.2d 991

, and Carrigan v. Shaferly Excavating Ltd., 3rd Dist. Seneca No. 13-11-08,

2011-Ohio-5587

.

       {¶ 5} In its April 10, 2017 order, the trial court determined as follows (footnotes

omitted):

              R.C. 4123.512 demands that the costs and attorney fees of litigation

       shall be granted to Plaintiffs in this case. That rationale being “that statutes

       providing for reimbursement of costs to successful claimants in workers’

       compensation appeals are designed to minimize the actual expenses

       incurred by an injured employee who establishes his or her right to

       participate in the fund.   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 an appeal

       pursuant to” R.C. 4123.512.

              However, not every expense is recoverable. The Second District

       has held that, while “reasonable videotaped deposition expenses” are

       reimbursable, a claimant may not recover the costs of both the

       stenographic and videographic expenses of depositions of medical expert

       witnesses.
                                                                                           -6-

              In Robinson v. Conrad, [2d Dist. Darke No.1604,

2003-Ohio-2961

, ¶

       19-21,] the [Second] District further held that a successful claimant could

       not recover the costs of a perpetuation deposition transcript when the

       original was filed with the court, as such cost was merely for convenience

       and not born of necessity.

              Therefore, this Court finds that Plaintiff may not receive

       compensation for the videographic expense of Dr. [d]eCaestecker’s

       deposition ($205) and Dr. Vogelstein’s perpetuation steno transcript ($203).

              However, Robinson is silent on the issue of a party’s deposition

       transcript. Given that the rationale of R.C. 4123.512(F) … is to minimize

       Plaintiff’s costs incurred for the successful prosecution of his claim, the court

       awards Plaintiff the costs of his deposition transcript.

              The Motion is GRANTED in part and OVERRULED [in] part and

       Plaintiff is awarded $4200 as and for attorneys’ fees and $2838.82 as and

       for litigation expenses.

( The court indicated in a footnote that $2838.82 represents the amount Keener sought

in his motion less the $408.00 for the doctors’ video and transcript.)

       {¶ 6} Keener asserts one assignment of error herein as follows:

              THE TRIAL COURT ERRED IN DENYING ALL OF THE COSTS OF

       PLAINTIFF’S OUT-OF-POCKET COSTS INCURRED IN CONNECTION

       WITH THE PREPARATION AND PRESENTATION OF HIS SUCCESSFUL

       APPEAL UNDER R.C. 4123.512.

       {¶ 7} In Bland v. Ryan, 2d Dist. Montgomery No. 24826,

2012-Ohio-3176

, this
                                                                                           -7-


Court noted that the “decision to grant or deny fees and costs under R.C. 4123.512(F)

lies within the sound discretion of the trial court and will not be disturbed on appeal absent

an abuse of discretion. ….” Id., ¶ 7. “ ‘Abuse of discretion’ has been defined as an

attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons,

Inc.,

19 Ohio St.3d 83

482 N.E.2d 1248

 (1985).”          Feldmiller v. Feldmiller, 2d Dist.

Montgomery No. 24989,

2012-Ohio-4621, ¶ 7

. “A decision is unreasonable if there is no

sound reasoning process that would support that decision. AAAA Enterprises, Inc. [v].

River Place Community Urban Redevelopment Corp.,

50 Ohio St.3d 157

553 N.E.2d 597


(1990).”


       {¶ 8} Keener asserts that “[c]ourts have interpreted the phrase ‘cost of any legal

proceedings’ liberally in accordance with R.C. 4123.95.”         Keener asserts as follows

(footnote omitted):

               In [Cave v. Conrad,

94 Ohio St.3d 299

2002-Ohio-793

762 N.E.2d 991

], the Ohio Supreme Court addressed an appeal from the Administrator

       of Workers’ Compensation who contended that the trial court erred in

       awarding videotaped deposition expenses under 4123.512(F) in addition to

       the costs of stenographic transcription of the same depositions under

       4123.512(D).     The court held that reasonable videotaped deposition

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

       compensation claimant pursuant to R.C. 4123.512(F). 94 Ohio St.3d at

       303. The court noted the liberal construction of R.C. 4123.512(F) and

       specifically disagreed with the Appellant’s argument that neither the Bureau

       of Workers’ Compensation nor a self-insured employer should ever be
                                                                                  -8-


responsible for paying for both the videotaped deposition costs and

stenographic deposition costs. Id. at 300.

       In the instant case, the trial court ignored Supreme Court precedent

in Cave, and instead relied on a Court of Appeals case that misconstrued

the holding in Cave. In [Robinson v. Conrad, 2d Dist. Darke No. 1604,

2003-Ohio-2961

], the court held that “because there is no law mandating

reimbursement for both stenographic and              videographic   costs   of

depositions,” the trial court did not abuse its discretion in refusing to allow

both costs to be taxed as costs. … *The court in Robinson relied on the

1997 case of [George v. Admin., Ohio Bureau of Workers’ Comp.,

120 Ohio App.3d 106

696 N.E.2d 1101

 (2d Dist. 1997)] for the proposition that either

stenographic or videographic expenses can be taxed as costs, but not both.

…

       The Robinson court attempted to distinguish George from Cave by

claiming that the claimant in Cave had incurred expenses only for

videotaping the depositions of two physicians.        Robinson, 2003-Ohio-

2961, at ¶ 20. In actuality, the court in Cave, pointed out that both lower

courts allowed the prevailing party to recover videotaped deposition

expenses even though R.C. 4123.512(D) also required the bureau to

pay appellee the costs of the stenographic transcription of the same

depositions. Cave, 94 Ohio St.3d at 300. … The reimbursement of the

stenographic transcription costs under 4123.512(D) was not contested by

the Administrator, and therefore not before the Supreme Court in Cave. Id.
                                                                                -9-

Even though the issue before the Ohio Supreme Court in Cave was whether

reasonable    videotaped   expenses     were   reimbursable    under    R.C.

4123.512(F), that does not mean that the claimant was not also entitled to

stenographic transcription costs of the same physicians.

      The court in Robinson also stated, “no where [sic] in Cave does the

court hold that both stenographic and videographic expenses of depositions

must be taxed as costs.” Robinson,

2003-Ohio-2961

 at ¶ 21. However, the

Supreme Court in Cave plainly addressed the propriety of assessing “dual

payments” for both videographic deposition costs and stenographic

depositions costs.    The court explicitly disagreed with Administrator’s

contention that neither the bureau nor a self-insured employer should ever

be responsible for paying both videotaped deposition costs and

stenographic deposition cost.    Cave, 94 Ohio St.3d at 300. Underlying

the Supreme Court’s central holding in Cave – that reasonable videotaped

depositions expenses may be awarded to a successful claimant under

4123.512(F) – was the understanding (acknowledged earlier in the

decision) that the claimant was also entitled to stenographic deposition

expenses of the same doctors under 4123.512(D).

      The central holding in Cave was properly interpreted by the Third

District in [Carrigan v. Shaferly Excavating Ltd., 3d Dist. Seneca No. 13-11-

08,

2011-Ohio-5587, ¶ 17

], which held: “Accordingly, the Supreme Court

determined that reasonable videotaped deposition expenses could be

awarded to successful workers’ compensation claimants as ‘costs of any
                                                                                  -10-


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).” …

       The holding in Carrigan follows the Supreme Court’s consistent

construction of the term “cost of any legal proceedings” liberally in favor of

employees. … It is also in line with recent case law out of the Second

District Court of Appeals, which has adopted a broad interpretation of the

phrase “cost of any proceedings” in R.C. 4123.512(F). Current Second

District case law supports reimbursement of court filings, facsimiles,

messenger services, postage, parking, and any other cost traditionally

charged to clients that have a direct relation to a claimant’s appeal. Paris

v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871, 2003-Ohio-

6673, see also Bland v. Ryan, 2nd Dist. Montgomery No. 24826, 2012-

Ohio-3176.

       There is an inherent reasonableness test when it comes to a trial

court’s determination of what costs were necessary to the presentation of

the claimant’s appeal. … In the present case, the trial court Order denying

reimbursement of costs implies it was “unreasonable” for Mr. Keener to

order both the stenographic and videographic deposition testimony of Dr.

[d]e[C]aestecker. … In fact, Montgomery County Local Rule 1.27(B)(2)

does not permit a video deposition to be presented at trial unless a written

transcript of the deposition has also been filed with the court. Therefore,

dual filing of stenographic and videographic deposition transcripts is not
                                                                                   -11-


only reasonable; it is required.

       …

       The unequivocal holding of Cave supports the reimbursement of Mr.

Keener’s reasonable videographic deposition expenses notwithstanding the

previous award of the costs associated with obtaining the stenographic

transcript of the deposition of Dr. [d]e[C]aestecker.       The videographic

deposition expense should be considered a “cost of any legal proceeding”

under 4123.512(F) and taxed against the employer in this case. Similarly,

Mr. Keener’s cost in obtaining a copy [the] of stenographic deposition of …

* Dr. Vogelstein, is a reasonable and necessary cost of any legal proceeding

under 4123.512(F).

       The trial court’s order denying reimbursement for Dr. Vogelstein’s

stenographic deposition notes that the original transcript was filed with the

court, and, as such, the cost of obtaining a copy of the transcript was

“merely for convenience and not born of necessity.” … The trial judge may

be under the mistaken impression that once a transcript was filed with the

court all parties to the case have access to the document via the clerk’s

website. In fact, the electronic copy of the transcript remains locked even

after it is filed with the court. Only the court and defense counsel have

access to the transcript unless an additional copy is ordered from the court

reporter. … Seeing as Dr. Vogelstein’s deposition transcript is a cost of

litigation that is traditionally charged to clients and had a direct relation to

Mr. Keener’s successful appeal, it should be reimbursed as a “cost of any
                                                                                         -12-


       proceedings” pursuant to R.C. 4123.512(F).

       {¶ 9} Finally, Keener asserts that “[f]ailing to reimburse for reasonable litigation

expenses unfairly prejudices a claimant by forcing him to choose between dissipating his

ultimate recovery in the claim or presenting a less persuasive case at trial.”

       {¶ 10} R.C. 4123.512(D) and (F) govern a claimant’s recovery costs of an appeal.

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.

       {¶ 11} R.C. 4123.512 (F) provides:

              The cost of any legal proceedings authorized by this section,

       including an attorney's fee to the claimant's attorney to be fixed by the trial

       judge, based upon the effort expended, in the event the claimant's right to

       participate or to continue to participate in the fund is established upon the

       final determination of an appeal, shall be taxed against the employer or the

       commission if the commission or the administrator rather than the employer

       contested the right of the claimant to participate in the fund. …

       {¶ 12} As noted by the Supreme Court of Ohio:

              R.C. 4123.512(F) applies to claimants who may rightfully participate

       in the fund but have been denied that right and have been forced to appeal.

       These claimants incur out-of-the-ordinary expense in order to establish their
                                                                                            -13-


       right to participate, additional expense that other claimants do not incur.

       While just as worthy, their award becomes functionally less than other

       claimants with the same injury. R.C. 4123.512(F) serves to diminish that

       incongruity.

Kilgore v. Chrysler Corp.,

92 Ohio St.3d 184, 187

 (2001).

       {¶ 13} We begin our analysis with the Supreme Court’s decision in State ex rel.

Williams v. Colasurd,

71 Ohio St.3d 642

646 N.E.2d 830

 (1995).                 Therein, Ervin

Williams’ additional claim was disallowed by the Industrial Commission, he appealed to

the court of common pleas, and after a jury trial, judgment was entered in favor of his

employer.

 Williams then filed a complaint in mandamus in the Court of Appeals of

Franklin County seeking to compel in part the costs of the video deposition of Dr. Elmer

and of the playback in court of Dr. Elmer’s deposition. Id. at 643. The Supreme Court

interpreted the precursor to R.C. 4123.512(D), namely R.C. 4123.519(C), which provided

in part: “ ‘… The cost of the deposition filed in court and of copies of the deposition for

each party shall be paid for by the bureau of workers’ compensation from the surplus fund

and the costs thereof charged against the unsuccessful party if the claimant’s right to

participate or continue to participate is finally sustained or established in the appeal. …

*.’ ” Id.

       {¶ 14} The Court concluded as follows:

              Costs of the deposition are payable to a claimant regardless of

       litigation success. … At issue are the items that fall within the phrase “cost

       of the deposition.” Claimant’s position rests largely on the misperception

       that “expenses” and “costs” are synonymous. They are not. “ ‘[C]osts’ are
                                                                                -14-


not synonymous with expenses unless expressly made so by statute.”

Benda v. Fana (1967),

10 Ohio St.2d 259, 263

39 O.O.2d 410, 413

227 N.E.2d 197, 201

. …

       Videotape testimony

       Dr. Elmer’s deposition was preserved in both stenographic and

videotape forms. Commission policy permits reimbursement for only one.

The commission argues that reimbursement for both improperly imposes

on the Surplus Fund. The appellate court agreed[.] …

       …

       This result was also suggested in State ex rel. Hakos v. Colasurd

(Dec. 28, 1993), Franklin App. No. 92AP-1151, unreported, at 5,

1993 WL 540288

, where the court pointed out that “a claimant initially has the option

of using a written deposition or videotape. The costs of one of these forms

of deposition is reimbursable.”

       We recognize that the Court of Appeals for Lawrence County

reached a different result in Clark v. Bur. of Workers’ Comp. (1993),

88 Ohio App.3d 153

623 N.E.2d 640

.         However, given the principle that an

expense is not a “cost” unless expressly made so by statute, we favor the

reasoning employed by the Franklin County Court of Appeals; because

former R.C. 4123.519(C) did not authorize payment for multiple forms of

deposition testimony, reimbursement should not be permitted.

       Claimant also argues that the liberal construction mandate of R.C.

4123.95 dictates dual payment. A liberal construction directive, however,
                                                                                           -15-


         does not empower us to read into a statute something that cannot

         reasonably be implied from the statute’s language.         Szekely v. Young

         (1963),

174 Ohio St. 213

22 O.O.2d 214

188 N.E.2d 424

, paragraph two

         of the syllabus. Dual payment was, therefore, properly denied.

Id. at 643-44.

         {¶ 15} Regarding the video playback in court, the Supreme Court determined as

follows:

                  Video replay

                  This is not a recoverable “cost of the deposition” according to Hakos,

         supra:

                  “ … Since R.C. 4123.519 does not specifically mandate that the

         cost of playing a videotaped deposition be included as surplus fund

         payment for the cost of a deposition, this court cannot read into the statute

         additional wording or expand the scope of the statute beyond its literal

         meaning.” Id. at 5.

                  Further reinforcing this position is [Gold v. Orr Felt Co.,

21 Ohio App.3d 214

487 N.E.2d 347

 (2d Dist. 1985) 1 ], which suggested that

         regardless of the character of litigation, videotape depositions are governed

         by C.P.Sup.R. 12(D). Section (D)(1) sets forth various expenses associated

         with videotape depositions and specifies by whom the costs are to be

         assumed. Section (D)(1)(c) provides that “[t]he expense of playing the

         videotape recording at trial shall be borne by the court.” As such,


1
    Gold was a negligence action, and it did not involve a workers’ compensation claim.
                                                                                           -16-


       reimbursement to claimant is inappropriate.

Id. at 645-46.

       {¶ 16} This Court subsequently considered Colasurd, as well as Montgomery

County Local Rule 1.27, in George v. Administrator, Ohio Bur. of Workers’ Comp.,

120 Ohio App.3d 106

696 N.E.2d 1101

(2d Dist. 1997). The local rule provides: “The Court

shall not accept or permit the audio/video version of the deposition transcript to be

presented during trial or hearing unless a written transcript of the deposition has been

filed in accordance with Subsection (A) of this Rule.” Loc.R. 1.27(B)(2). This Court

determined as follows:

George argues that although an unsuccessful claimant who relies

upon 4123.512(D) may recover only the videographic or stenographic costs

of a videotaped deposition of a physician, but not both,

a successful claimant may rely upon R.C. 4123.512(F), which provides for

the recovery of costs generally, and recover both the videographic and

stenographic costs of the videotaped deposition. We disagree. Based upon

our reading of Colasurd, we conclude that the recovery of the costs of taking

a videotaped deposition of a physician is a special case covered specifically

by R.C. 4123.512(D). The more general statutory provision, R.C.

4123.512(F) does not control the recovery of the costs of taking a

videotaped deposition of a physician.

George also argues that because he is required by Montgomery

County Loc.R. 1.27(1) to file a written transcript within a videotaped

deposition, he should be permitted to recover both his stenographic and
-17-

videographic expenses. This presents a close question, since there is no

indication that the claimant in Colasurd was subject to a similar local rule of

court.

However, as the Supreme Court held in Colasurd, “ ‘ “costs” are not

synonymous with expenses unless expressly made so by statute.’ ”

71 Ohio St.3d at 643

646 N.E.2d at 83

, quoting Benda v. Fana (1967),

10 Ohio St.2d 259, 263

39 O.O.2d 410, 413

227 N.E.2d 197, 201

. Thus, the mere

      fact that the costs of preparing a transcript was an expense required by local

      rule does not necessarily mean that it is a “cost” that may be recovered

      under the statute.

               Furthermore, George was not required to submit a videotaped

      deposition. He could have offered the transcript of the deposition. We

      recognize that the testimony of experts, especially in fields as complex as

      medicine, is often far more comprehensible and effective when it is

      presented live or in a videotaped format. Our own experience confirms that

      this is so. However, George was not legally required to offer the testimony

      of his doctor in a videotaped format, and, as the Supreme Court held

      in Colasurd, not every expense, no matter how reasonably incurred, is a

      recoverable cost under the statute.

               Although the issue is close, we agree with the administrator that

      George may recover either the stenographic expense or his physician's

      deposition, or the videographic expense, but not both.

George at 108-09.
                                                                                        -18-

      {¶ 17}    In Cave,

94 Ohio St.3d 299

, the Supreme Court of Ohio held at syllabus

that “[p]ursuant to R.C. 4123.512(F), reasonable videotaped deposition expenses may be

taxed as costs and awarded to a successful worker’s compensation claimant in an action

brought pursuant to R.C. 4123.512.” In Cave, Yolanda Cave sought to add an additional

condition to her initial claim, and the Industrial Commission denied the additional

condition.

Id. at 299

. Cave appealed to the Pike County Court of Common Pleas, and

at the jury trial she presented the videotaped deposition testimony of her two expert

witnesses.

 The jury returned a verdict in favor of Cave.

 Cave filed a motion to

tax as costs certain expenses for videotaping her experts, and after a hearing, “the trial

court ordered the videotaped deposition expenses to be paid by the bureau as ‘costs of

legal proceedings’ pursuant to R.C. 4123.512(F).”


      {¶ 18} The “Administrator of Workers’ Compensation … filed an appeal to the

Pike County Court of Appeals,” and the only issue “was in regard to the trial court’s order

awarding appellee the expenses of the videotaping.”

Id. at 300

. The Cave Court noted

that 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.’ ”

 The Supreme Court of Ohio further

noted that 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.”

 The Court noted that “Appellant contends that neither the bureau nor a

self-insured employer should ever be responsible for paying” both videotaped deposition

costs and stenographic deposition costs, and the Court disagreed.


      {¶ 19} The Cave Court, after reciting the language of R.C. 4123.512(D), noted as
                                                                                       -19-


follows:

             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.”

 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.

Id. at 300-301.

       {¶ 20} After reviewing the language of R.C. 4123.512(F), the Cave Court noted as

follows:

             This court has on prior occasions concluded that the phrase “cost of
                                                                                -20-


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),

, syllabus.

      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 an appeal

pursuant to R.C. 4123.519,” the predecessor of R.C. 4123.512.

 at
                                                                                         -21-

       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.

Id. at 301.

       {¶ 21} The Court next addressed the Administrator’s argument that “costs taxable

to the nonprevailing party are allowed only by authority of statute,” and that pursuant to

Williamson v. Ameritech Corp.

81 Ohio St.3d 342

691 N.E.2d 288

 (1998), “there is no

statute allowing deposition expenses to be taxed and included in the judgment.”


The Court concluded as follows (footnotes omitted):

              It is true that “[t]his court has consistently limited the categories of

       expenses which qualify as ‘costs.’ ” Centennial Ins. Co. v. Liberty Mutual

       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 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.

       Roedesheimer (1992),

64 Ohio St.3d 552, 555

597 N.E.2d 153, 156

.

              Notwithstanding, we find this argument of appellant not to be well
                                                                                -22-


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 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.

       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
                                                                                   -23-


in Sup.R. 13, 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.” Sup.R. 13(D)(2).

        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.)

 at syllabus. See, also, Fairchild v. Lake Shore Elec. Ry. Co.

(1920),

101 Ohio St. 261

128 N.E. 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 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

.

        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.
                                                                                        -24-


       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.

              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.

Id. at 302-303.

       {¶ 22} As noted above, Keener asserts that this Court “misconstrued the holding

in Cave” in Robinson v. Conrad, 2d Dist. Darke No. 1604,

2003-Ohio-2961

. Therein,

after his successful pursuit of a workers’ compensation claim, William J. Robinson

appealed from the decision of the trial court denying his motion for reconsideration of the

assessment of “stenographic and video deposition costs of his expert witness, Dr.

Douglas Gordon, reimbursement for the expert fee associated with his deposition, and

the transcription costs from the deposition of Whirlpool’s expert Dr. Koeppenhoeffer.” Id.,

¶ 7. In his memorandum in support of costs, Robinson “asserted that the expert witness

fee for preparing and giving a deposition is reimbursable and that the stenographic and

reproduction deposition costs are to be charged against the non-prevailing party.” Id.

Further, “Robinson relied on Cave … in asserting that videotaped deposition expenses

are also to be taxed against the non-prevailing party.” Id. Whirlpool in response relied

upon George, asserting “that either stenographic or videographic expenses can be taxed
                                                                                       -25-

as costs, but not both.” Robinson, ¶ 8. The trial court ordered Whirlpool to pay the costs

of either the videographic or stenographic costs. Id., ¶ 9.

      {¶ 23} In overruling Robinson’s motion for reconsideration, the “trial court stated

that under Cave, … it was not required to tax both stenographic and videographic

expenses as costs. The entry also denied Robinson’s request to tax the costs of Dr.

Gordon’s fee and Robinson’s request for reimbursement of the stenographic costs from

Dr. Koeppenhoeffer’s deposition.” Id.

      {¶ 24} Robinson’s assigned error on appeal was as follows: “The trial court

committed prejudicial error and abused its discretion by refusing to assess costs against

the non-prevailing party in a workers' compensation case as mandated by Ohio Revised

Code § 4123.512 and authorized by Supreme Court authority.” Id., ¶ 11.           Robinson

asserted that Cave overruled George. Id., ¶ 12.

      {¶ 25} After reviewing R.C. 4123.512(D) and (F), this Court noted that “[n]ot every

expense is a recoverable cost under R.C. 4123.512(D). … Instead, ‘ “costs” are not

synonymous with expenses unless expressly made so by statute.’ ” Id., ¶ 18, citing

Colasurd. After reviewing this Court’s holding in George, this Court held as follows

regarding the videotaped deposition:

             Just recently, in Cave, supra, the Ohio [S]upreme [C]ourt reviewed a

      trial court's taxing as costs certain expenses for videotaping the depositions

      of expert medical witnesses. Unlike George, where the claimant had

      incurred stenographic and videographic expenses from the deposition,

      Cave had incurred expenses only for videotaping the depositions of two

      physicians. The court found that reasonable deposition expenses “may be”
                                                                                          -26-


       taxed as costs and awarded to a claimant.

                We do not find that the decision in Cave overrules what we stated

       in George, as no where in Cave does the court hold that both stenographic

       and videographic expenses of depositions must be taxed as costs.

                In this case, as in George, Robinson is seeking reimbursement for

       stenographic and videographic expenses associated with the deposition of

       Dr. Gordon. As in George, Robinson was not required to incur both

       stenographic and videographic costs for the deposition of Dr. Gordon.

       Contrary to what Robinson would like to believe, this is not a situation similar

       to that in Cave where the claimant is seeking reimbursement for

       videographic expenses only. Because there is no law mandating

       reimbursement for both stenographic and               videographic    costs   of

       depositions, we must overrule Robinson's claims. As such, we find that the

       trial court did not abuse its discretion in finding that either the stenographic

       or the videographic expenses could be taxed as costs, but not both.

Id., ¶ 20-22.

       {¶ 26} Regarding the stenographic deposition expenses of Whirlpool’s expert, Dr.

Koeppenhoeffer, this Court concluded as follows:

                As the trial court noted: “While it may be wise for Plaintiff's counsel

       to review the deposition and to have a copy available for trial preparation

       purposes, this was a perpetuation deposition of a defense witness. The

       Court finds that Plaintiff was not required to obtain a copy of the deposition

       since the original was to be filed. Dr. Koppenhoeffer was the Defendant's
                                                                                          -27-


       doctor in this matter and the Defendants {sic} should be responsible to pay

       only for necessary costs; the cost of a copy for the convenience of Plaintiff's

       counsel is not a necessary expense. The Court does not find any reason to

       tax as costs the stenographic deposition expense for a copy to be made

       available for Plaintiff's counsel's use.”

                We find no abuse of discretion in the trial court's reasoning. The cost

       incurred was for the convenience of Robinson and was not a necessary

       expense. We must therefore overrule Robinson's claim.

Id., ¶ 24-25.

       {¶ 27} Finally, regarding the costs of Robinson’s expert, Dr. Gordon, this Court

noted that the “trial court discretionarily denied Robinson’s request, stating that Robinson

twice requested reimbursement of these fees and twice had failed to provide a copy of

the fees statement involved. Based upon the lack of facts to make a decision, the trial

court overruled his request.”     Id., ¶ 26. This Court determined as follows:

                R.C. 4123.512(D) authorizes payment of deposition expenses

       incurred by a claimant to secure the testimony of a physician. The claimant

       is entitled to reimbursement whether she is successful or unsuccessful in

       prosecuting her appeal. Akers v. Serv-A-Portion, Inc. (1987),

31 Ohio St.3d 78

508 N.E.2d 964

; Sturgill v. Elder Beerman, Corp., Greene App. No.

       02CA0062, [

2003-Ohio-52

], ¶ 8. R.C. 4123.512(F) authorizes a trial court to

       tax the fee and travel expenses charged by an expert witness as a cost that

       is then awarded to a successful claimant. Sturgill, supra, at ¶ 11,

       citing Kilgore v. Chrysler Corp.,

, [

2001-Ohio-166

], 749
                                                                                           -28-


      N.E.2d 267. R.C. 4123.513(F) was enacted to “ ‘minimize the actual

      expenses incurred by an injured employee who establishes his or her right

      to participate in the fund .’ ” Id. at ¶ 12,

, quoting Moore v.

      General Motors Corp. (1985),

18 Ohio St.3d 259, 261-262

480 N.E.2d 1101

.

              As we stated in Sturgill, supra, at ¶ 14, “the cost of ‘live testimony’ by

      an expert witness, including fees and travel expenses …, may be taxed

      as costs pursuant to R.C. 4123.512(F), upon motion properly presented.

      The trial court may nevertheless decline to order payment of any part of

      such    costs   which    it   finds   unreasonable.   The    burden    to   show

      unreasonableness is on the employer or commission against which the cost

      would be taxed.”

              We cannot find that the trial court abused its discretion in failing to

      award those expenses as costs, as Robinson failed to properly present his

      motion and provide the necessary facts to the trial court upon which it could

      base its decision. Accordingly, we overrule this argument.

              Based upon the foregoing discussion, we overrule Robinson's

      assignment of error.

Robinson at ¶s 27-30.

      {¶ 28} In Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871, 2003-

Ohio-6673, which was decided six months after Robinson, and upon which Keener

relies, Dairy Mart asserted that the “trial court improperly awarded Paris $3,984.91 in

litigation expenses, pursuant to Kilgore v. Chrysler Corp.,

, 749 N.E.2d
                                                                                       -29-


267, [

2001-Ohio-166

],” and that “only $1,482.50 of those expenses were properly

awarded under R.C. 423.512(F).” Paris, ¶ 30. Dairy Mart argued that Kilgore “does not

support an award for all costs of litigation and that most of the costs and expenses

requested by Paris were simply ordinary costs associated with the practice of law ….”

{¶ 29} This Court determined in part as follows:

In the present case, the trial court held that Paris' request for

reimbursement of the costs of court filings, investigative services, reporting

services, travel expenses, photocopies, trial exhibits, witness fees,

facsimiles, and Federal Express messenger service were costs that are

traditionally charged to clients and that have a direct relation to the

claimant's appeal. The trial court concluded that Paris' expenses were

reasonable costs of litigation, which were recoverable under R.C.

4123.512(F). We agree. Each of the claimed expenses were incurred in

connection with the appeal of Paris' workers' compensation claim. They

were not “ordinary overhead costs and expenses associated with the

practice of law,” as Dairy Mart contends.

We are mindful that Moore, Kilgore and Cave each concerned

expenses incurred in the deposition of a medical expert witness. See,

also, Schuller v. U.S. Steel Corp., Trumbull App. No. 2002-T-0165, [2003-

Ohio-4870] (interpreting Kilgore narrowly). Although the disputed expenses

in the instant case do not concern the deposition of Paris' medical expert,

the principles set forth in Moore, Kilgore and Cave are applicable beyond
-30-

the deposition process and the [S]upreme [C]ourt has not limited those

principles to that factual circumstance. Nor have we done so. In Kilgore v.

Chrysler Corporation (Feb. 4, 2000), Montgomery App. Nos. 17906,

17915, affirmed,