Kilgore v. Chrysler Corp.

Moyer, C.J.,

dissenting. The trial court ordered appellee’s employer to pay travel expenses incurred by the claimant’s attorney in deposing an expert witness who had moved out of state. The court’s order was based on R.C. 4123.512(F), which allows “the cost of any legal proceedings authorized by this section, including an attorney’s fee to the claimant’s attorney” to be charged to an employer who is unsuccessful in the court of common pleas in an appeal authorized by R.C. 4123.512.

The majority upholds this trial court order, thereby disregarding long-standing common-law statutory interpretation, presumably known to the General Assembly, that “ ‘costs are not synonymous with expenses unless expressly made so by statute.’ ” State ex rel. Williams v. Colasurd (1995), 71 Ohio St.3d 642, 643, 646 N.E.2d 830, 832, quoting Benda v. Fana (1967), 10 Ohio St.2d 259, 263, 39 O.O.2d 410, 413, 227 N.E.2d 197, 201; Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 51, 23 O.O.3d 88, 89, 430 N.E.2d 925, 926. The majority *189engrafts meaning onto R.C. 4123.512(F) that simply cannot be discerned from its language.

Broadening R.C. 4123.512(F) presages more and more cost-shifting to employers who are forced to defend Industrial Commission decisions denying workers’ compensation claims in R.C. 4123.512 appeals. Will an employer who ultimately loses such an appeal in the court of common pleas be held liable not only for travel expenses incurred by the claimant’s lawyer in deposing experts but also for the costs of preparing trial exhibits to be used in the common pleas court? Must the employer pay the claimant’s expenses in copying pretrial or trial memoranda? Will not the claim be made that the professional fees of expert witnesses consulted by the claimant, whether or not called as witnesses, are rightfully charged to an unsuccessful employer as a “cost of any legal proceedings?”

The majority notes that R.C. 4123.95 provides that workers’ compensation statutes are to be “liberally construed in favor of employees.” However, R.C. 4123.95 does not authorize this court to effectively rewrite the statutory system in favor of claimants and their lawyers to assure them favorable results.

The majority further posits, based on dicta found in the majority opinion of a divided court in 1985, that “a claimant’s recovery shall not be dissipated by reasonable litigation expenses connected with the preparation and presentation of an appeal.” Moore v. Gen. Motors Corp. (1985), 18 Ohio St.3d 259, 262, 18 OBR 314, 317, 480 N.E.2d 1101, 1103. That this language overinflates the meaning of the cost-reimbursement statute here at issue is manifestly illustrated by the fact that R.C. 4123.512(F) expressly limits the amount of the claimant’s attorney fee that may be charged to the employer to a fee “not [to] exceed twenty-five hundred dollars.” Had the General Assembly been opposed to the idea that some costs of litigation are properly charged to a successful claimant, it would not have imposed a monetary limit to the assessment of reasonable attorney fees.

Pursuant to today’s holding, a claimant presumably is entitled to reimbursement for travel expenses to any location in the world to which a doctor has relocated. Such an interpretation is incongruous with the General Assembly’s inclusion of a monetary limit on the assessment of an attorney fee.

It is well established that specific statutory provisions govern over general provisions. R.C. 1.51. Had the General Assembly intended to assess a lawyer’s travel expenses associated with the taking of depositions as costs, it would have placed such a provision in R.C. 4123.512(D), which expressly addresses deposition costs, rather than leaving the question to be inferred from the more general language of R.C. 4123.512(F). Accord Breidenbach v. Conrad (1997), 122 Ohio App.3d 640, 645, 702 N.E.2d 509, 512 (“While broader in scope, the costs recoverable under subsection [F] cannot be read to duplicate the coverage allowed under the more specific provision of R.C. 4123.512[D], since to do so *190would eviscerate subsection [D] and frustrate the legislature’s clear intent to provide specialized recovery for deposition costs. * * * [T]he reimbursement of such costs is solely determined under the specific provision of R.C. 4123.512[D]”).

Moreover, it is not surprising that the General Assembly failed to provide for recovery of expenses associated with the taking of physician depositions beyond the stenographic costs of preparing and copying the depositions themselves. Subsection (D), read in its entirety, represents a legislative balancing of the need for physician testimony at trial with the possible unavailability of physicians to appear personally at an R.C. 4123.512 hearing. It therefore provides for the filing of deposition testimony of a doctor in lieu of personal appearance “even though the physician is a resident of or subject to service in the county in which the trial is had.” Accordingly, where a physician’s testimony is offered by way of deposition, subsection (D) provides that “the physician whose deposition is taken is not required to respond to any subpoena issued in the trial of the action.”

However, in the event that deposition testimony is to be offered, subsection (D) first provides that the cost of a “stenographic deposition filed in court and of copies of the stenographic deposition for each party” is not to be borne by the claimant in an R.C. 4123.512 appeal. Rather, those costs are to be paid by the bureau and assessed against the unsuccessful party, ie., the employer, if the claimant’s appeal ultimately succeeds.

Read as a whole, it is apparent that the purpose of R.C. 4123.512(D) is to accommodate the needs of physicians and the needs of the court. Its purpose is not to provide unlimited financial reimbursement to claimants for the expenses incurred in obtaining that deposition testimony any more than the purpose of subsection (F) is to provide unlimited financial reimbursement to claimants for general litigation expenses incurred in the preparation and prosecution of an R.C. 4123.512 appeal.

The majority asserts that today’s decision will not result in the assessment of the costs of staples, paper clips, and the “lawyer’s lucky tie” to unsuccessful employers pursuant to subsection (F), nor allow unsuccessful employers to be charged for the everyday costs of doing business incurred by a claimant’s attorney. It assures us that its decision to allow reimbursement of litigation costs will be limited to costs “bearing a direct relation to a claimant’s appeal that lawyers traditionally charge to clients and that also have a proportionally serious impact on a claimant’s award.” How such a three-pronged standard can be conjured out of the use of the words “costs of any legal proceedings” in R.C. 4123.512(F) is unclear, except for the simple explanation that the majority is not interpreting that statute — it is rewriting it.

Michael E. Susco, for appellee. Coolidge, Wall, Womsley & Lombard Co., L.P.A., and Jeffrey D. Snyder, for appellant Chrysler Corporation. Betty D. Montgomery, Attorney General, and Steven P. Fixler, Assistant Attorney General, for appellants Bureau of Workers’ Compensation and Industrial Commission of Ohio. For the foregoing reasons, I dissent. Cook and Lundberg Stratton, JJ., concur in the foregoing dissenting opinion.