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Kevin R. Carrigan v. Shaferly Excavating Ltd.

October 31, 2011

KEVIN R. CARRIGAN, PLAINTIFF-APPELLANT,
v.
SHAFERLY EXCAVATING LTD., ET AL.,
DEFENDANT-APPELLEE.



Appeal from Seneca County Common Pleas Court Trial Court No. 10 CV 0036

The opinion of the court was delivered by: Rogers, P.J.

Cite as Carrigan v. Shaferly Excavating, Ltd.,

OPINION

Judgment Reversed and Cause Remanded

{¶1} Plaintiff-Appellant, Kevin Carrigan ("Carrigan" or "Claimant"), appeals the judgment of the Court of Common Pleas of Seneca County denying reimbursement for a portion of the costs he incurred during the litigation of his claim for workers' compensation benefits. On appeal, Carrigan asserts that the trial court erred in denying a portion of the costs without explanation and seeks modification of the judgment entry to award him those costs pursuant to R.C. 4123.512(D) and (F). Finding that the trial court abused its discretion in denying the costs of legal proceedings, we reverse the decision of the trial court.

{¶2} The pertinent facts of this case are not in dispute. Carrigan was employed by Shaferly Excavating, Ltd. on July 1, 2009. On that date, during the course of his employment, he was injured. Carrigan filed a claim with the Ohio Bureau of Workers' Compensation ("the BWC") on July 14, 2009. The Industrial Commission ultimately disallowed his claim, and Carrigan filed an appeal in the Seneca County Court of Common Pleas on January 21, 2010, pursuant to R.C. 4123.512. The case proceeded to a jury trial in January, 2011. The trial court granted defendants' motion for a directed verdict under Civ.R. 50 for the claims of skin sensation disturbance and disc degeneration. The jury found that Carrigan was entitled to participate in the state fund for the cervical disc herniation C5-6.

{¶3} Carrigan filed a motion for costs and statutory attorney's fees pursuant to R.C. 4123.512(D) and (F) including the amount of $4,200.00 for statutory attorney's fees and $6,383.30 for the costs of legal proceedings. The BWC filed a motion in opposition through which it agreed to pay $4,200.00 in attorney's fees pursuant to R.C. 4123.512(F), the fees charged by the Claimant's expert physician, Dr. Clark, for his deposition on December 21, 2010, in the amount of $2,485.00,*fn1 the Claimant's transcript of Dr. Clark's deposition which took place on November 23, 2010 in the amount of $308.14, the Claimant's copy of the transcript of the deposition of Dr. Shiple, the BWC's expert physician, in the amount of $177.00, and the fee for the lay witnesses at trial in the amount of $18.00.

{¶4} The BWC contested payment for the other requests. Specifically, it argued that it must pay either the stenographic deposition cost of Dr. Clark's December 21, 2010 deposition or the video costs of the deposition, but not both, as the costs are duplicative. The BWC contested payment of Dr. Shiple's stenographic deposition as it was never filed with the trial court as required by R.C. 4123.512(D). The BWC argued that the remaining costs are not expressly included in R.C. 4123.512 and are therefore, not taxable as costs of legal proceedings. Further, the BWC argued that these remaining expenses are discovery expenses, not used in the presentation at trial.

{¶5} The trial court held a hearing on the matter on February 18, 2011. The judgment entry in its entirety read:

This cause came on for a hearing on Plaintiff's Amended Motion for [c]osts and statutory attorney fees filed January 26, 2011 in this case. A hearing was held on February 18, 2011. Present at the hearing by telephone conference were Theodore A. Bowman, plaintiff's counsel, and Carolyn S. Bowe, counsel for Defendant Administrator [BWC]. After hearing arguments from counsel, the Court finds that certain costs and attorney fees shall be awarded to plaintiff in this case, pursuant to R.C. 4123.512(D) and (F).

The following costs of Plaintiff shall be paid by the administrator to the Plaintiff or his counsel in this case:

1. Statutory attorney fees $4,200.00

2. Dr. Clark's video deposition costs $635.00

3. Dr. Clark's video deposition costs ...


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