How to get part of the employer’s trial expenses reimbursed by the Bureau of Workers’ Compensation

Pursuant to Ohio Revised Code Section 4123.512(D) employers are entitled to reimbursement for the stenographic costs of depositions taken of a physician which is introduced at trial. That pertinent part of that section reads: “The bureau of workers’ compensation shall pay the cost of the stenographic deposition filed in court and of copies of the stenographic deposition for each party from the surplus fund and charge the costs thereof against the unsuccessful party if the claimant’s right to participate or continue to participate is finally sustained or established in the appeal.”   Certainly, for the employer, that’s little consolation for a condition or claim being allowed in court.

However, in Akers v. Serv-A-Portion the Supreme Court addressed whether then 4123.519 mandated that the deposition costs be charged to the surplus fund when the claimant’s right to participate in the workers’ compensation fund was denied.  The Court found that it did.  As the Court put it:

We believe the express language in paragraph six of R.C. 4123.519 makes clear that the deposition costs are to be paid from the surplus fund, whether or not the claimant successfully establishes a right to participate under the Workers’ Compensation Act. The phrase “[t]he cost of the deposition filed in court and of copies of such deposition for each party shall be paid for by the industrial commission from the surplus fund * * *” is mandatory. That is, in all cases the costs of the deposition are to be paid from the surplus fund. The remainder of the sentence, “and costs thereof charged against the unsuccessful party if the claimant’s right to participate * * * is finally sustained or established * * *,” conditions reimbursement of the fund only where the claimant is successful. In that case, the costs are to be charged against the unsuccessful party (that is, the self-insured employer or the Industrial Commission). Otherwise, the costs of the deposition are to be charged against the surplus fund.

The Supreme Court recognized the Akers findings in 2004 in the case of Kilgore v. Chrysler Corp., pursuant to the current version of the statute, 4123.512(D).  While the case law on the subject deals primarily with claimants’ requests for reimbursement of deposition costs, the statute, and judges in numerous orders throughout the state, have interpreted the statute as entitling employers to re-imbursement as well.  While the amounts in question might not be huge, in today’s legal environment, it’s important for attorneys to do everything they can to demonstrate that they are working to minimize their clients’ legal expenses.

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