Expert Witness Fee for Live Testimony Reimbursable as “Cost of Legal Proceedings”
Schuller v. United States Steel Corp. (9/22/04), 103 Ohio St.3d 157, 2004-Ohio-4753.
Issue: Can a claimant who wins the right to participate under R.C. § 4123.512 receive reimbursement for an expert witness’ live testimony under R.C.§ 4123.512(F)?
Background: Schuller appealed a workers’ compensation claim to common pleas court, under R.C. § 4123.512. He won the right to participate at trial. During the trial, Schuller presented testimony from Dr. V and Dr. B. Dr. V provided live testimony at the trial; Dr. B testified by a videotaped deposition.
After he won the right to participate, Schuller sought payment of costs under R.C. §4123.512(F). Although the BWC agreed to the payment of certain costs, the BWC refused to reimburse the fees charged by Dr. V and Dr. B for their testimony. The trial court refused to order reimbursement of the amount paid to Dr. V and Dr. B. Schuller appealed.
The Court of Appeals found Schuller entitled to reimbursement for the fee Dr. B charged for videotaped testimony, but found Schuller not entitled to reimbursement of the fee Dr. V charged for live testimony.
The Court of Appeals’ decision that Schuller could not receive reimbursement under R.C. §4123.512(F) for Dr. V’s fee for live testimony conflicted with the decisions of two other Courts of Appeal. The First District Court of Appeals in Dean v. Conrad (1999), 134 Ohio App.3d 367 and the Eighth District Court of Appeals in Dixon v. Ford Motor Co., Cuyahoga App. No. 82148, 2003-Ohio-3959, found a successful claimant entitled to reimbursement for the fee an expert charged for live testimony. Therefore, the Court certified its decision to the Supreme Court so that the Supreme Court could resolve the conflict.
Decision: Supreme Court reverses decision that a claimant cannot receive reimbursement for the fee an expert charged for live testimony.
The Court of Appeals asked the Supreme Court:
[w]hether an expert’s witness fee for live in-court testimony is a reimbursable cost of legal proceedings pursuant to R.C. 4123.512(F).
The Supreme Court answered “yes.”
R.C. § 4123.512(F) provides that for reimbursement to a claimant who wins the right to participate at trial for the “costs of any legal proceedings.” The Supreme Court points out that it has interpreted this phrase broadly, so that the injured worker is not penalized for having to prove their claim at trial by being charged with the cost of proving the claim.
The BWC argued that the language in R.C. §4123.512(F), which applies only to successful workers’ compensation claimants, should be limited by the language of R.C. §4123.512(D), which applies to all workers’ compensation claimants (even unsuccessful ones). R.C. §4123.512(D) provides for reimbursement to all claimants of the “stenographic” deposition costs.
The Supreme Court rejects this argument. It points out that R.C. §4123.512(D) has no relevance because this case involves R.C. §4123.512(F). The Court holds that
The testimony of a medical expert is vital to a workers’ compensation claimant’s being able to prove that his or her injuries meet the requirements for participation in the Workers’ Compensation Fund. Thus, we find that a fee for a witness whose testimony is integral to the claimant’s case and is directly related to his or her appeal is a reimbursable expense under R.C. §4123.512(F).