In Ohio, the injured worker carries the burden of proof at trial as to whether he or she sustained a compensable injury in the course of and arising out of his or her employment. This burden of proof must be carried by the injured worker regardless of whether it is the injured worker’s appeal or the employer’s appeal. When the injured worker is successful at trial, the Ohio Revised Code provides for the taxing of the costs of the legal proceedings and attorneys’ fees against the employer, if the employer contested the allowance of the injury. The attorneys’ fee cannot exceed a maximum amount of $4,200, and costs can include expert witness fees, deposition costs, and other costs incurred by the injured worker in pursuit of their court appeal.
In a troubling decision for Ohio employers, the Supreme Court of Ohio, in Holmes v. Crawford Machine, Inc., Slip Opinion No. 2012- Ohio-5380, ruled that when a claimant’s right to participate in the workers’ compensation fund is established on appeal, the trial court is not required to apportion costs based on the outcome of a particular claim and/or condition. This is regardless of how many conditions are denied at the trial court level by the judge or jury.
The claimant, Jeff Holmes, filed a workers’ compensation claim in which he asserted that he suffered from an electrical shock, a low back strain, an abrasion of his right pinky finger, and left shoulder strain, rotator cuff tear, and dislocation. These six conditions were allowed administratively by the Industrial Commission, and the employer appealed these allowances into the Court of Common Pleas. After deliberations, a jury found that Mr. Holmes was only entitled to participate in workers’ compensation fund for the abrasion of the right pinky finger. All of the other conditions were denied by the jury.
After the trial, Mr. Holmes filed a motion requesting attorneys’ fees and costs. The trial court awarded Mr. Holmes $4,200 (the statutory maximum) in attorneys’ fees and $7,551.23 in costs. Those costs included his expert witness fee and video deposition, lay witness depositions, filing fees, postage and exhibit boards, and travel costs and hotel expenses. Nearly all of these expenses were incurred solely in pursuit of the conditions that were ultimately denied by the jury. The most troubling aspect of the trial court’s decision to award costs and attorneys’ fees was that the finger abrasion was treated with a Band-Aid.
The employer appealed this decision awarding attorneys’ fees and costs to the Court of Appeals. The Third Appellate District agreed with the position of the employer and reversed the trial court’s decision. Thereafter, Mr. Holmes appealed the decision to the Supreme Court of Ohio.
The Supreme Court of Ohio reversed the decision of the Third Appellate District finding that the trial court is not required to apportion costs based on the outcome of a particular claim or condition. The rationale used by the Supreme Court to support this holding was that they would impermissibly add language to the statute if they were to hold that a claimant must be reimbursed for costs associated with litigating a particular condition only if that particular claim and/or condition is awarded at trial.
Given this decision, employers can expect to see more claims proceed all the way to trial when there are multiple conditions at issue (including minor conditions) as claimants now have a much greater opportunity to recover his or her costs and fees of going to trial. Similarly, the risk for employers in taking matters through trial has been raised significantly, in the form of potential additional costs if the employer loses even on one condition. Employers may also see minor conditions, such as contusions and abrasions, more frequently requested. Such minor conditions will help claimants and their attorneys ensure that, should a matter go to trial, they will be able to at least recover all of their attorney fees and costs by including such minor conditions that a judge or jury is more likely to grant. This means that employers early on in a claim need to scrutinize injuries even more closely to determine if it is more beneficial to accept a minor condition and then defend against the more significant additional allowances to avoid this windfall of attorneys’ fees and court costs to claimants.
If you would like a full copy of this decision or have any questions with respect to workers’ compensation in Ohio, please contact any member of our Worker’s Compensation Practice Group.