dissenting: I respectfully dissent from the majority’s conclusion that K.S.A. 2006 Supp. 44-510k(c) does not authorize the awarding of costs for postaward expert witness fees to a claimant in a postaward claim for medical benefits. I believe the wording of the statute grants the discretion to an administrative law judge to award such fees.
The majority cites K.S.A. 60-2003 in the Code of Civil Procedure and several cases construing that section as precedent for its conclusion that expert witness fees are not authorized in this case. That section lists “[i]tems which may be included in the taxation of costs . . . .” The list is specific and the section contains no language that allows any other items as costs in addition to those so listed. Since expert witness fees are not found in the fist, the cases cited by the majority have found such fees cannot be awarded as costs to a party in a case filed under Chapter 60.
In contrast, K.S.A. 2006 Supp. 44-510k(c) says in pertinent part: “As used in this subsection, ‘costs’ include, but are not limited to” the items so listed. (Emphasis added.) While expert witness fees are not specifically fisted, they are not excluded either. In my view, the language implies that the section allows other “costs” to be awarded besides those fisted and this would include the expert witness fees claimant seeks here. Any reliance in this case on K.S.A. 60-2003 and the cases construing it is misplaced.
As the majority states, claimant makes a policy argument to the effect that professional medical experts often charge a substantial fee for rendering reports and giving depositions. It could well be that the cost of the medical treatment sought may not be worth incurring the cost necessary to establish entitlement to the treatment. Since a claimant is not seeking monetary benefits, he or she may be unduly dissuaded from pursuing a valid claim for postaward *741treatment if required to pay expert witness fees. Also, without the possibility a respondent may be required to pay a claimant’s expert witness fees, a respondent may have more incentive to deny the treatment and put claimant to proof rather than attempt to reasonably settle the claim. Claimant presents a sound policy argument.
Any concerns about either party abusing the other in a dispute over expert witness fees are alleviated by the fact K.S.A. 2006 Supp. 44-510k(c) does not mandate the award of costs but leaves it to the discretion of the administrative law judge. I believe the subsection grants such discretion and the Workers Compensation Board erred when it concluded otherwise. Since it is not clear from the record whether the administrative law judge determined that he could not award the fees claimed here or whether he exercised his discretion not to award them, I would reverse and remand this matter with instructions that the administrative law judge determine whether to award,or deny the fees claimant seeks.