No. 94-336
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
VICTORIA KLOEPFER,
Petitioner and Appellant,
-v-
LUMBERMENS MUTUAL CASUALTY CO.,
Insurer and Respondent for
BECHTEL CONSTRUCTION CO.,
Employer and Respondent.
APPEAL FROM: Workers' Compensation Court
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Edmiston, III, Billings, Montana
For Respondent:
Steven S. Carey, Garlington, Lohn & Robinson,
Missoula, Montana
For Amicus:
Patrick R. Sheehy, Halvorson, Sheehy & Plath,
Billings, Montana (Montana Trial Lawyers
Association)
Submitted on Briefs: March 16, 1995
Decided: July 25, 1995
Fil
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the Order Awarding Costs of the
Workers' Compensation Court which disallowed as a recoverable cost
the expert witness fee of $750 charged for the deposition testimony
of Victoria Kloepfer's treating physician. We reverse.
The only question on appeal is whether the Workers'
Compensation Court erred when it disallowed the payment of $750 as
the fee charged by claimant's treating physician for the taking of
a deposition based upon the Witty rationale.
Victoria Kloepfer (Kloepfer) sustained an injury to her back
on April 14, 1992, while undergoing physical therapy at the
Billings Clinic Work Hardening Center (Clinic) where she was
undergoing treatment for an existing occupational disease of her
arm. Kloepfer's physician, Peter V. Teal, M.D., testified that she
had in fact injured her back at the Clinic. Dr. Teal's testimony
was presented to the court by way of a deposition taken in his
office on September 14, 1993, for which he charged Kloepfer $750.
Although several other doctors testified for the insurer that
Kloepfer had not been injured at the Clinic, the Workers'
Compensation Court relied on Dr. Teal's deposition and found that
Kloepfer had been injured at the Clinic.
The Workers' Compensation Court ordered that Kloepfer receive
occupational disease benefits and medical and hospital benefits for
her back injury. The court also awarded Kloepfer her costs. The
court permitted the costs of medical records but denied Kloepfer
the $750 cost for Dr. Teal's deposition fee.
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Kloepfer filed a Request for Redetermination of Costs and the
parties further briefed the issue. The court again denied the $750
stating that "irrespective of past practice" it had to follow the
directives set out in Witty v. Pluid (1986), 220 Mont. 272, 714
P.2d 169; and Baeta v. Don Tripp Trucking (1992), 254 Mont. 487,
839 P.2d 566.
Kloepfer appeals the Workers' Compensation Court's denial of
the $750 for Dr. Teal's deposition.
Did the Workers' Compensation Court err when it disallowed as
a recoverable cost the expert witness fee of $750 charged for the
deposition testimony of Victoria Kloepfer's treating physician?
Kloepfer argues that the Workers 1 Compensation Court
misconstrued the case law upon which it relied. Further, Kloepfer
contends that the court has historically awarded witness fees for
testimony by way of deposition.
The insurer argues that § 25-10-201, MCA, made applicable to
the Workers' Compensation Court by the Baeta case requires that the
court can only award witness fees of $10 per day per witness,
including fees of expert witnesses.
Our standard of review is whether or not the Workers'
Compensation Court correctly interpreted the law. Russette v.
Chippewa Cree Housing Authority (1994), 265 Mont. 90, 874 P.2d
1217. The District Court disallowed the $750 charged by Kloepfer's
physician for his deposition based upon the court's conclusion that
Witty and Baeta were precedent for its decision.
Witty was a case tried in District Court in which the court
had to reconcile two conflicting civil procedure statutes dealing
3
with the compensation for witnesses who appear at trial:
Witnesses in courts of record and before certain court
officers. (1) Witness fees are as follows:
(a) for attending in any civil or criminal action or
proceeding before any court of record, referee, or
officer authorized to take depositions or commissioners
to assess damages or otherwise, for each day, $10 . . .
Section 26-z-501, MCA.
Costs generally allowable. A party to whom costs are
awarded in an action is entitled to include in his bill
of costs his necessary disbursements, as follows:
i2j the expenses of taking depositions;
.
;9; such other reasonable and necessary expenses as are
.
taxable according to the course and practice of the court
or by express provision of law.
Section 25-10-201, MCA. The Witty Court stated that "twlhere there
are two statutes concerning the same subject, the particular
controls the general." Wittv, 220 Mont. at 272, 714 P.2d at 170.
In Witty, we concluded that the specific statute, § 26-2-501,
MCA, which states that expert witnesses can only receive $10 per
day controls the more general statute, 5 25-10-201, MCA, which says
that the court can award costs in keeping with its course of
practice. Witty, 220 Mont. at 274, 714 P.2d at 170. Because the
case was in district court, that court did not consider either the
rules or procedure applicable to cases before the Workers'
Compensation Court.
The statutes governing workers' compensation claims direct the
Workers' Compensation Court to be bound by "the Montana
Administrative Procedure Act" and the "common law and statutory
rules of evidence." Section 39-71-2903, MCA. The statutes
governing workers' compensation cases do not require that the
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Workers' Compensation court comply with the rules of civil
procedure applicable to district court proceedings.
Yet, we decided in Baeta that § 25-10-201, MCA, applied to
the Workers' Compensation Court's award of costs. The Baeta Court
stated:
A claimant, like any other party, is still subject to the
mandates of § 25-10-201, MCA, and the court's authority
to tax costs. There can be no question that even under
the "net recovery" concept, the court has discretion in
determining fees. The same holds true for costs, subject
to the mandates of 5 25-10-201, MCA. We hold that the
Workers' Compensation Court did not abuse its discretion
in its award of costs.
Baeta, 254 Mont. at 494, 839 P.2d at 570. The holding in Baeta was
affirmed in Stevens v. State Fund (19941, 268 Mont. 460, 886 P.2d
962, where this Court stated:
Section 25-10-201, MCA, is a general statute which
governs the award of costs and was made applicable to
workers' compensation cases in Baeta v. Don Tripp
Trucking (1992), 254 Mont. 487, 493-94, 839 P.2d 566,
570. . . .
The statutes applicable to the Workers' Compensation Court
were not considered in either Baeta or Stevens. In pertinent part
these workers' compensation statutes provide:
Costs and attorneys' fees payable on denial of claim or
termination of benefits later found compensable. (1)
The insurer shall pay reasonable costs and attorney fees
as established by the workers' compensation court if:
(a) the insurer denies liability for a claim for
compensation or terminates compensation benefits;
(b) the claim is later adjudged compensable by the
workers' compensation court . . . (Emphasis added.)
Section 39-71-611, MCA. Further, the legislature reinforced this
standard in another statute:
Costs and attorneys' fees that maybe assessed against an
insurer by workers' compensation judge. (1) If an
insurer pays or submits a written offer of payment of
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compensation under chapter 71 or 72 of this title but
controversy relates to the amount of compensation due,
the case is brought before the workers' compensation
judge for adjudication of the controversy, and the award
granted by the judge is greater than the amount paid or
offered by the insurer, a reasonable attorney's fee and
costs as established by the workers' compensation judge
if the case has gone to a hearing may be awarded by the
judge in addition to the amount of compensation.
(Emphasis added.)
Section 39-71-612, MCA.
The above statutes establish that "reasonable costs and
attorney's fees" may be awarded in workers' compensation cases. As
a result, the costs payable in Workers' Compensation Court under
the reasonable costs standard are not necessarily comparable to the
standard applied in normal district court cases.
Medical depositions have been consistently used in workers'
compensation cases and the costs of such testimony have been
routinely allowed by workers' compensation judges. We conclude
that the workers' compensation statutes do not require that we
diminish a claimant's award by making the claimant pay the high
costs of medical depositions which are a requirement in many cases
for obtaining benefits.
We also point out that the statutes covering workers'
compensation state that the "assessments" made by the Workers'
Compensation Judge are the exclusive assessments that can be levied
against an insurer for disputes arising under Chapter 71. See S
39-71-2905, MCA. This statute establishes the necessity of finding
the cost assessment standards in Chapter 71. Further, there is no
issue of fact regarding the past practice of the Workers'
Compensation Court to award a successful claimant the cost of
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medical testimony and depositions. Attorneys for both sides agree
such costs have been traditionally awarded.
We specifically overrule Baeta and Stevens in their holding
that s 25-10-201, MCA, governs the award of costs which may be
allowed in a workers' compensation case. We further reverse the
holding of the Workers' Compensation Court when it relied on Witty
and the provisions for $10 per day witness fees allowed for
witnesses in a district court civil proceeding, as that holding is
not applicable to workers' compensation cases.
We hold that the Workers' Compensation Court erred in
disallowing the payment of $750 as the cost of taking the treating
physician's deposition.
We amend the Order Awarding Costs entered by the Workers'
Compensation Court and hold that Kloepfer shall recover the sum of
$750 as the expert witness fee for Dr. Teal.
We Concur:
Justices
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Justice James C. Nelson specially concurs.
I concur in the result reached in our opinion, but I disagree
in OUT decision to overrule Baeta and Stevens. That is
unnecessary, and neither the parties nor amicus requested that we
overrule either of those cases. The problem in this case is not
Baeta or Stevens. The problem is Witty and the Court's assumption
that because Wittv, a district court case, interpreted 5 25-10-201,
MCA, in a certain limiting manner, that interpretation
automatically is applicable to workers' compensation cases. A fair
reading of Baeta and Stevens does not support that conclusion.
Baeta did not address Witty much less determine that the
particular rule enunciated in that case limiting expert witness
fees to the amount provided by 5 26-2-501, MCA, was applicable to
workers' compensation cases. More important, Baeta did not address
the specific language of § 25-10-201(P), MCA, cited above. At most,
Baeta generally applied § 25-10-201, MCA, to workers compensation
cases and held that 5 25-10-201, MCA, defines the sorts of costs
that may be awarded under § 39-71-612, MCA.
Similarly, while Stevens relied on Baeta, Stevens did not
address Wittv. We simply pointed out that Baeta made 5 25-10-201,
MCA, applicable to workers' compensation cases. We then went on to
discuss why, under subsection (9) of that statute, the Workers'
Compensation Court did not abuse its discretion in refusing to
award private investigator costs to the prevailing claimant. We
pointed out in Stevens, that the investigator costs at issue in
that case were not historically awarded within the course and
practice of the Workers' Compensation Court, nor was there any
express provision of law which mandated an award of costs for such
services or special statute which excepted investigator costs from
the list of items in § 25-10-201, MCA. Stevens, 886 P.2d at 968-
69.
Given that Witty was a district court case rather than a
workers' compensation case ; given that § 25-lo-201(9), MCA,
authorizes the taxing of reasonable and necessary expenses
according to the course and practice of the court; given that it is
undisputed that physician deposition costs have been traditionally
awarded to the prevailing claimant in workers' compensation cases;
and given that the legislature has specifically allowed the
Workers' Compensation Court to award reasonable costs in contested
cases where the claim is determined to be compensable, I would
simply hold that, consistent with Baeta and Stevens, the Workers'
Compensation Court had discretion to award Kloepfer her physician
deposition costs.
Accordingly, I specially concur only in the result of our
decision.
Justice Karla M. Gray concurs going special c currence.
Kloepfer v. Lumbermens Mutual Casualty Co.
Court: Montana Supreme Court
Date filed: 1995-07-25
Citations: 899 P.2d 1081, 272 Mont. 78, 52 State Rptr. 663
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