State ex rel. Williams v. Colasurd

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State: Ohio

Court: Supreme Court

Docket No: 1993-2151

Case Date: 01/10/1995

Plaintiff: State ex rel. Williams

Defendant: Colasurd

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The State ex rel. Williams, Appellant, v. Colasurd et al.,
Appellees.
[Cite as State ex rel. Williams v. Colasurd (1995), Ohio
St.3d .]
Workers' compensation -- Reimbursability of expenditures of

appeal to court of common pleas from denial of claim by
Industrial Commission.
(No. 93-2151 -- Submitted January 10, 1995 --

Decided , 1995.)

Appeal from the Court of Appeals for Franklin County, No.
92AP-308.

Appellant-claimant, Ervin Williams, Jr., was injured in
the course of and arising from his employment with appellee,
Greater Cleveland Regional Transit Authority. His workers'
compensation claim has since been allowed for "lumbar muscular
strain." In 1987, claimant moved to have his workers'
compensation claim additionally allowed for "herniated disc
L3-4, L4-5." His request was denied by appellee Industrial
Commission.

Claimant appealed to the Cuyahoga County Common Pleas
Court pursuant to former R.C. 4123.519. A jury trial followed
and judgment was entered in favor of his employer.

Claimant's counsel sought reimbursement from the
commission for the following:

(1)  Expert witness fee of Dr. Russell Elmer -- $1,550;
(2)  Court reporter for deposition of Dr. Elmer -- $683.10;
(3)  Videotape of Dr. Elmer -- $391.50;
(4)  Playback in court of video deposition of Dr. Elmer
-- $150;
(5)  Copy of transcript of deposition of Dr. Robert Corn,

RTA's expert witness -- $181.30;

(6) Court costs taxed to claimant -- $279.60.

The commission authorized reimbursement for Dr. Elmer's
court reporter fee ($683.10) and the cost of transcribing Dr.
Corn's deposition ($181.30).

Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, seeking to compel payment of the
balance of his expenses. The appellate court denied the writ.

The cause is now before this court upon an appeal as of
right.

Shapiro, Kendis & Assoc. Co., L.P.A., and Alan J. Shapiro;
and Donald E. Lampert, for appellant.

Betty D. Montgomery, Attorney General, and Gerald H.
Waterman, Assistant Attorney General, for appellees Industrial
Commission of Ohio and Bureau of Workers' Compensation.

Per Curiam. Former R.C. 4123.519(C) read:

"* * * 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. * * *"1143 Ohio
Laws, Part II, 3355.

Costs of the deposition are payable to a claimant
regardless of litigation success. Akers v. Serv-A-Portion,
Inc. (1987), 31 Ohio St.3d 78, 31 OBR 190, 508 N.E.2d 964,
syllabus. 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 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.
See, also, Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982),
69 Ohio St.2d 50, 23 O.O. 3d 88, 430 N.E.2d 925; State ex rel.
Michaels v. Morse (1956), 165 Ohio St. 599, 607, 60 O.O. 531,
535, 138 N.E.2d 660, 666 ("the subject of costs is one entirely
of statutory allowance and control"). Given former R.C.
4123.519(C)'s language, or lack thereof, claimant must overcome
a major hurdle in establishing the reimbursability of
expenditures sought. Upon review, we find that claimant does
not establish an entitlement to further repayment.

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, writing:

"* * * It would be unreasonable to hold that there is any
requirement obligating the commission to reimburse for multiple
forms of deposition. It is prudent for the commission to use
what discretion it has to limit surplus fund spending in a
reasonable manner."

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 conclusion 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, 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.

Expert witness fee

Absent statutory directive, an expert witness fee is not a
"cost." In re Election of November 6, 1990 for the Office of
Atty. Gen. of Ohio (1991), 62 Ohio St.3d 1, 577 N.E.2d 343.
See, also, Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 21
OBR 228, 487 N.E.2d 347.

Former R.C. 4123.519 did not contain the necessary
directive. In Perry v. Connor (1983), 8 Ohio App. 3d 283, 8
OBR 376, 456 N.E.2d 1340, syllabus, the Franklin County Court
of Appeals denied expert witness reimbursement under former

R.C.
4123.519(C), writing:
"The 'cost of the deposition,' as that phrase is used in

R.C.
4123.519, includes only the stenographic costs, which
include the cost of the court reporter attending the deposition
and the fee for producing the original and copies that are
required, but does not include the cost of the physician's fee."

The court reasoned:

"* * * To encourage the production of testimony by
deposition, R.C. 4123.519 is calculated to relieve claimant
from additional charges that are required when testimony is
presented by deposition, rather than by a witness in court.
Hence, the term 'cost of the deposition' is properly
interpreted to mean only costs which are added because a
deposition is used. The physician's fee is applicable in
either event."

Moore v. Gen. Motors Corp. (1985), 18 Ohio St.3d 259, 18
OBR 314, 480 N.E.2d 1101, does not dictate a contrary result.
Moore defined the issue before it as "whether the 'cost of the
deposition,' recoverable by a claimant whose right to
participate or to continue to participate in the State
Insurance Fund is sustained or established * * * allows * * *
recovery for the fee charged by an expert for preparing and
giving the deposition." Id. at 260, 18 OBR at 315, 480 N.E.2d
at 1102.

This is not the question, however, that Moore answered.
The majority instead wrote at the syllabus:

"Pursuant to R.C. 4123.519, a common pleas court may tax
to the employer the costs of an expert's witness fee [for]
preparing and giving his deposition as a 'cost of any legal
proceedings authorized by this section.'"

While Moore set out to decide the question under an
earlier version of R.C. 4123.519(C), it actually answered it
under R.C. 4123.519(E). Moore apparently treated Sections (C)
and (E) interchangeably -- an error alluded to in Akers, supra,
31 Ohio St.3d at 79, 31 OBR at 191-192, 508 N.E.2d at 965, fn.

1. Moore, therefore, does not authorize expert fee
reimbursement under former R.C. 4123.519(C). Recovery under

former R.C. 4123.519(E), moreover, is impossible, since
repayment under that subsection hinges on a claimant's
successful establishment of a right to participate for the
condition at issue. Since the claimant in the instant case did
not prevail, Moore does not control.

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, supra, 21 Ohio
App.3d 214, 21 OBR 228, 487 N.E.2d 347, 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, reimbursement to claimant is inappropriate.

Accordingly, the judgment of the appellate court is
affirmed.

Judgment affirmed.

Moyer, C.J., Wright, Pfeifer and Cook, JJ., concur.

Douglas, Resnick and F.E. Sweeney, JJ., dissent and would reverse the judgment of the court of appeals.

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