[Cite as Bland v. Ryan,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

EUGENE C. BLAND

Plaintiff-Appellant

v.

MARSHA P. RYAN, Administrator, BUREAU OF WORKERS’ COMPENSATION, et al.

Defendant-Appellees

Appellate Case No. 24826

Trial Court Case No. 2010-CV-08348

(Civil Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 13th day of July, 2012.

...........

GARY D. PLUNKETT, Atty. Reg. #0006136, and BRETT BISSONNETTE, Atty. Reg. #0076527, Hochman & Plunkett Co., L.P.A. 3077 Kettering Boulevard, Point West, Suite 210, Dayton, Ohio 45439 Attorneys for Plaintiff-Appellant, Eugene C. Bland

LYDIA M. ARKO, Atty. Reg. #0085597, Office of the Attorney General, Workers’ 2

Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee, Bureau of Workers’ Compensation

CHRISTOPHER AEMISEGGER, Atty. Reg. #0082868, Thomas & Company, L.P.A., 163 North Sandusky Street, Suite 103, Delaware, Ohio 43015 Attorney for Defendant-Appellee, AT&T Teleholdings, Inc.

.............

HARSHA, J. (Sitting by Assignment)

{¶ 1} Eugene Bland appeals the trial court’s decision denying her reimbursement

for certain expenses following a jury trial that established her right to participate in the

workers’ compensation fund. Bland argues the trial court erred by failing to award her certain

requested expenses. Her expenses for photocopies, postage, meals and parking are costs

traditionally charged to clients and have a direct relation to her appeal. Accordingly, these

expenses are reimbursable under R.C. 4123.512(F). However, in the absence of any more

specific evidence, we are unsure whether her requested “file initiation” expense is of the type

traditionally charged to clients and directly related to her appeal. Thus, we cannot say the

trial court abused its discretion in concluding that Bland cannot recover this expense.

{¶ 2} Accordingly, we remand the case for the trial court to determine whether the

amount requested for the allowable expenses was reasonable, i.e. the amount to be reimbursed

to Bland for photocopies, postage, meals and parking.

I. FACTS

{¶ 3} After a trial involving Eugene Bland’s workers’ compensation claim, a jury

found that she had the right to participate in the workers’ compensation fund. Bland then 3

filed a “Motion for Order on Plaintiff’s Application for Award of Attorney’s Fees and

Expenses” requesting, in addition to attorney’s fees, reimbursement for $5,330.92 in expenses

under R.C. 4123.512 and Kilgore v. Chrysler Corp.,

,

(2001). These expenses included “in-office expenses in the amount of $628.25 for

photocopies, postage, fax, mileage, [and] parking.” In response, AT&T filed “Defendant’s

Opposition to Plaintiff’s Application for Award of Attorney’s Fees and Expenses” and

challenged $541.12 of Bland’s requested “in-office” expenses. Specifically it disputed

Bland’s charges regarding $452 for photocopies, $12 for lunch during trial, $14 for parking

during trial, $3.12 for postage and a $60 “file initiation expense.” Notably it did not dispute

Bland’s expense for $87.13 in travel mileage.

{¶ 4} The trial court awarded Bland “reasonable expenses” in the amount of

$4,789.80. However, it did not award Bland the $541.12 in contested expenses representing

“photocopies, postage, fax, packaging, mileage, meals and parking” because it found that

these fees were “every day costs of doing business in today’s practice of law * * * [and] d[id]

not bear directly on [Bland’s] workers compensation appeal.” As a result, Bland filed this

appeal disputing the trial court’s denial for reimbursement of the contested $541.12 in

expenses.

II. ASSIGNMENT OF ERROR

{¶ 5} Bland presents a sole assignment of error for our review:

{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

AWARD CERTAIN EXPENSES REPRESENTING ‘PHOTOCOPIES, POSTAGE, FAX, 4

PACKAGING, MILEAGE, MEALS AND PARKING’ FOLLOWING A SUCCESSFUL

PROSECUTION OF PLANTIFF’S APPEAL OF A WORKERS’ COMPENSATION CLAIM

UNDER R.C. 4123.512.

III. LAW AND ANALYSIS

A. Standard of Review

{¶ 7} The decision to grant or deny fees and costs under R.C. 4123.512(F) lies

within the sound discretion of the trial court and will not be disturbed on appeal absent an

abuse of discretion. Holmes v. Crawford Machine, Inc., 3rd Dist. Crawford Nos. 3-11-09,

3-11-10 and 3-11-12,

. Rather than simply an error of law or judgment,

an abuse of discretion implies that the trial court’s decision was unreasonable, arbitrary or

unconscionable. State v. Kalish,

,

,

.

B. Legal Standard

{¶ 8} R.C. 4123.512(F) allows for the reimbursement of the “costs of any legal

proceedings” incurred by claimants who bring successful workers’ compensation appeals.

Schuller v. U.S. Steel Corp.,

,

,

, ¶ 6. The

statute provides: “The cost of any legal proceedings authorized by this section, including an

attorney’s fee to the claimant’s attorney to be fixed by the trial judge, based upon the effort

expended, in the event the claimant’s right to participate or to continue to participate in the

fund is established upon the final determination of an appeal, shall be taxed against the

employer or the commission if the commission or the administrator rather than the employer 5

contested the right of the claimant to participate in the fund. The attorney’s fee shall not

exceed forty-two hundred dollars.”

{¶ 9} Thus, R.C. 4123.512(F) applies to claimants who have been forced to file an

appeal because they were initially incorrectly denied the right to participate in the fund.

Kilgore, 92 Ohio St.3d at187,

. “These claimants incur out-of-the-ordinary

expense in order to establish their right to participate, additional expense that other claimants

do not incur. While just as worthy, their award becomes functionally less than other

claimants with the same injury. R.C. 4123.512(F) serves to diminish that incongruity.”

{¶ 10} The Supreme Court of Ohio has interpreted the phrase “cost of any legal

proceedings” broadly and recognized that “the purpose of allowing reimbursement under R.C.

4123.512 is ‘to minimize the actual expense incurred by an injured employee who establishes

his or her right to participate in the fund.’” Schuller,

,

,

, at ¶ 7, quoting Moore v. Gen. Motors Corp., Terex Div.,

,

(1985) (construing former R.C. 4123.519, the predecessor of R.C.

4123.512). Following R.C. 4123.95’s requirement that workers’ compensation statutes are to

be “liberally construed in favor of employees,” the Supreme Court of Ohio has allowed

reimbursement for reasonable litigation expenses connected with the preparation and

presentation of a successful appeal. Schuller at ¶¶ 7, 8. These are expenses that “might have

the effect of unreasonably dissipating a claimant’s award.” Id. at ¶ 8.

{¶ 11} Although expenses for “everyday costs of doing business” are not

reimbursable, the Supreme Court of Ohio has stressed that the “cost of legal proceedings”

language in R.C. 4123.512(F) “‘applies to costs bearing a direct relation to a claimant’s appeal 6

that lawyers traditionally charge to clients and that also have a proportionally serious impact

on a claimant’s award.’” Id., quoting Kilgore,

,

. This

means reimbursement for such expenses is subject to the trial court’s determination of their

“reasonable necessity to the presentation of the claimant’s appeal.” Schuller,

,

,

, at ¶ 8. And, once it is determined that an expense is

directly related to the appeal, the trial court must then determine the reasonableness of the

cost, i.e. the amount to be reimbursed. Id. at ¶ 13.

C. Analysis

{¶ 12} Bland contends that the trial court abused its discretion by denying her

reimbursement for $541.12 in litigation expenses under R.C. 4123.512(F) and Kilgore.

Bland asserts that these expenses were all reasonable costs properly chargeable to AT&T

under our holding in Paris v. Dairy Mart-Lawson Co., 2d Dist. Montgomery No. 19871,

, and were not ordinary costs of doing business, as the trial court found.

AT&T agrees with the trial court’s conclusion and claims that these types of expenses are not

typically charged to clients and do not bear directly on Bland’s appeal.

{¶ 13} AT&T relies in part on our holding in Banfill v. Admr., Bur. of Workers’

Comp., 2d Dist. Montgomery No. 17294,

(Dec. 18, 1998), to support its

assertion that the challenged expenses by Bland are personal expenses or everyday costs of

doing business. In Banfill, we found that charges for medical records, photocopies, long

distance telephone calls and facsimiles were not reimbursable expenses under R.C. 4123.512.

However, Banfill was decided before the Supreme Court’s decision in Kilgore, and we 7

subsequently held in Paris that the claimant’s costs of court filings, investigative services,

reporting services, travel expenses, photocopies, trial exhibits, witness fees, facsimiles, and

Federal Express messenger service were costs traditionally charged to clients and had a direct

relation to her workers’ compensation appeal.

. Under the Supreme Court’s

holding in Kilgore, we found that these expenses were not ordinary overhead costs or

everyday expenses associated with the practice of law.

To the extent that our decision in

Banfill conflicts with Paris, the more recent case is controlling. See Williams v. Bur. of

Workers’ Comp., 10th Dist. Franklin No. 09AP-1076,

, ¶ 18. Therefore, we

disagree with AT&T that we should look to Banfill for guidance and consider Paris

controlling on this issue.

{¶ 14} In essence, our reading of Kilgore, Schuller and Paris reveals a three pronged

analysis for deciding reimbursement issues under R.C. 4123.512(F). First, the court must

determine whether the expense is of the type or category for which reimbursement is

authorized, i.e. things lawyers traditionally charge to clients like travel expenses (Kilgore),

expert witness fees (Schuller) photocopies, facsimiles, investigative service, court filings, etc.

(Paris), as opposed to overhead, e.g. utilities, equipment leases, legal subscriptions and office

supplies, which are not. Next, the court must determine whether those allowable categories

of costs were actually and directly related to the claimant’s appeal, i.e. whether they were

reasonably necessary for the effective presentation of the claim. Finally, the court must

decide whether the amount requested for allowable and directly related expenses was

reasonable. Schuller at ¶13. 8

{¶ 15} In the present case, the trial court denied Bland reimbursement for $541.12 in

expenses it determined represented “photocopies, postage, fax, packaging, mileage, meals and

parking.” The court found these expenses were the “every day costs of doing business in

today’s practice of law,” and did not “bear directly on [Bland’s] workers compensation

appeal.” However, this decision is somewhat confusing because the record shows that the

court actually granted Bland reimbursement for travel mileage and we cannot find where

Bland claimed any expense for packaging. Instead, Bland’s application and AT&T’s

opposition to the application show the denied $541.12 in expenses represented parking during

trial, lunch during trial, postage, photocopies and a “file initiation expense.” Bland did not

request an oral hearing on her “Motion for Order on Plaintiff’s Application for Award of

Attorney’s Fees and Expenses” and consequently the only evidence in the record regarding

these expenses is the exhibits attached to her application.

{¶ 16} Initially, we address the file initiation fee. Because there was no evidence

other than an accounting entry to support this expense, we are unsure what her requested “file

initiation” expense represents; consequently, we are unable to say that this is an expense

traditionally charged to clients or directly related to her appeal. Thus, the trial court did not

abuse its discretion, and we affirm its judgment, to the extent it concluded Bland cannot

recover this expense.

{¶ 17} However, following the standards set forth in by the Supreme Court in

Kilgore and our holding in Paris, Bland’s expenses for photocopies, postage, parking and

lunch during trial are costs traditionally charged to clients and have a direct relation to her

appeal. We disagree with AT&T that these expenses are the everyday costs of doing business 9

and conclude they are the type of costs that are reimbursable under R.C. 4123.512(F). We

also conclude they were reasonably necessary for the effective presentation of the claim. In

making these decisions we are mindful that R.C. 4123.95 requires us to liberally construe

workers’ compensation statutes in favor of employees.

{¶ 18} Because the trial court ruled these expenses were overhead and were not

directly related to the appeal, it did not address whether the amounts claimed were reasonable.

Upon remand, the amount to be reimbursed must still be determined by the trial court. See

Schuller,

,

,

, at ¶13.

{¶ 19} Accordingly, we reverse the judgment of the trial court and remand this cause

to determine whether the requested amounts of these expenses were reasonable, i.e. the

amount to be reimbursed to Bland for photocopies, postage, meals and parking.

.............

GRADY, P.J., and FROELICH, J., concur.

(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Gary D. Plunkett Brett Bissonnette Lydia M. Arko Christopher Aemisegger Hon. John D. Schmitt (sitting for Hon. Dennis J. Langer)