Costs: Workers' Compensation Court Costs

MONTANA SUPREME COURT DECISIONS
Thayer v. Hicks, 243 Mont. 138, 793 P. 2d 784 (1990). The cost of the medical records, which were used as exhibits and are required by the Court, is allowed. Airfares and hotel bills incurred by expert witnesses are not allowable costs.
Powers Mfg. Co. v. Leon Jacobs, Ent., 216 Mont. 407, 701 P.2d 1377 (1985). Air fares for witnesses were not properly allowable as costs.
Witty v. Harrell W. Pluid, 220 Mont. 272, 714 P.2d 169 (1985). Fees paid to expert or non-expert witnesses for pretrial work are not recoverable.
Swenson v. Buffalo Building Co., 194 Mont. 141, 635 P.2d 978 (1981). A verified memorandum of costs and disbursements is prima facie evidence that the items were necessarily expended and are properly taxable, unless, as a matter of law, they appear otherwise on the face. The burden of overcoming this prima facie case rests upon the adverse party.
 
WORKERS' COMPENSATION COURT DECISIONS
Fleming v. Montana Schools Group Ins. Auth. [07/07/10] 2010 MTWCC 25 ARM 24.5.342 provides that documented long-distance telephone and postage expenses are generally found reasonable. However, where claimant’s attorney does not keep track of specific charges – but rather, charges claimants a $20 flat fee for postage and long-distance telephone charges – the Court held that the predetermined flat fee does not qualify as “documentation” and denied claimant’s request to recover these costs.
Fleming v. Montana Schools Group Ins. Auth. [07/07/10] 2010 MTWCC 25 ARM 24.5.342 neither specifically allows nor prohibits the recovery of costs for a claimant’s travel to attend her deposition or for trial; however, it provides in pertinent part that “[t]he reasonableness of a given item of cost claimed is judged in light of the facts and circumstances of the case.”  The Court has previously disallowed such costs and the facts of this case do not support the claimant’s attempt to recover travel costs for attending her deposition and the trial in Montana where claimant had mixed motives for relocating to Arizona; where claimant maintains a home and regularly returns to Montana; and where claimant’s husband was residing in Montana at the time of her deposition.

Johnson v. Liberty Northwest Ins. Corp. [08/27/09] 2009 MTWCC 30 Trial transcripts are generally not found to be reasonable under ARM 24.5.342(5)(a) and the Petitioner offered no reason justifying its costs request for obtaining trial transcripts. The Respondent has not appealed the judgment in this case and has notified opposing counsel that there will be no appeal. The transcript costs are not recoverable.

Johnson v. Liberty Northwest Ins. Corp. [08/27/09] 2009 MTWCC 30 Where the location of trial would have been in Kalispell pursuant to ARM 24.5.310(3)(a), the Petitioner’s counsel would have incurred no travel expenses had the Respondent pressed to have the case heard exclusively in Kalispell, and the trial was held over the course of eight separate days in four different locations almost exclusively to accommodate the Petitioner’s witnesses, the Court held that the Petitioner is not entitled to the costs of attorney travel expenses.
Johnson v. Liberty Northwest Ins. Corp. [08/27/09] 2009 MTWCC 30 Where the Petitioner employed the services of a nurse to prepare two exhibits that were admitted into evidence without objection and included a thirty-year medical chronology of the Petitioner’s chest x-rays and CT scans and an eight-year chronology of the Petitioner’s multiple pulmonary function tests which documented the medical provider who conducted the test and the specific results of each test, the court held that, given the nature of these two exhibits, it was not unreasonable that a person with a medical background would be employed to prepare them and the nurse’s charge is a recoverable cost.

Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Petitioner cannot recover costs associated with obtaining medical records which do not relate to the medical condition which was adjudged compensable. While the Court relied on these records in its findings of fact, the only findings made from these records were findings which led the Court to conclude that these medical conditions were not caused by Petitioner’s industrial accident.

Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Although Petitioner requested costs associated with his counsel’s travel to Phoenix, Arizona, for depositions, Petitioner prevailed on none of the issues for which his counsel traveled to Phoenix, and therefore those costs are not recoverable.

Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Typically, this Court allows recovery of an expert’s “consultation” or “preparation” time only if the expert testifies at deposition or at trial. Where an expert conducted an IME and then testified by deposition, the examination was conducted as part of the “preparation,” and therefore is a recoverable cost.

Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Where a doctor did not testify at trial or by deposition, but his report was admitted into evidence and the Court relied upon it in reaching a decision, the expert witness fee requested by Petitioner is disallowed where the Court cannot ascertain from the information provided as to how much of the requested cost was associated with the preparation of the report, or how much was “consultation,” trial preparation, or preparation for deposition testimony.
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Petitioner is not entitled to recover the costs associated with the deposition of an expert witness whose testimony regarded an issue upon which Petitioner did not prevail. Although Petitioner argued that he deposed certain expert witnesses not only for the sake of their expert testimony but also to obtain factual testimony about his carbon monoxide exposure, these parties were not witnesses to Petitioner’s carbon monoxide exposure and did not offer evidence which the Court relied on in concluded that Petitioner was exposed to carbon monoxide and that this exposure caused his cognitive impairment – the issue upon which Petitioner prevailed.
Heth v. Montana State Fund [07/01/09] 2009 MTWCC 19 Petitioner’s half of the expense for a post-trial mandatory appellate mediation conference are not recoverable, even though Petitioner was the appellee and ultimately prevailed on appeal. This Court previously concluded that the appellate mediator’s fee is not a recoverable cost under ARM 24.5.342. Preston v. Transportation Ins. Co., 2005 MTWCC 46, ¶ 5. Furthermore, M.R.App.P. 7(4)(f) unequivocally states that the parties to an appeal “shall share the mediator’s fee and incidental expenses equally.” Therefore, Petitioner cannot recover his share of the fee as a cost under ARM 24.5.342.
Heth v. Montana State Fund [07/01/09] 2009 MTWCC 19 Under ARM 24.5.342(6), the Court may award costs not enumerated in ARM 24.5.342(4) if those costs are in accordance with the principles of ARM 24.5.342(3). The costs Petitioner incurred post-trial from a medical management company – which were not submitted into evidence and therefore not considered by the Court in reaching its determination – are not recoverable costs.
Rau v. Montana State Fund [07/10/08] 2008 MTWCC 34 Where an expert witness did not testify by trial or by deposition, but his report was introduced into evidence and was relied upon by the Court in reaching its decision, some of his fee may be taxable as a cost. However, since Petitioner did not break out the fee for the preparation of the expert’s report from fees for “consultation,” trial preparation, and preparation for deposition testimony, the Court will sustain Respondent’s objection to the fee.
Rau v. Montana State Fund [07/10/08] 2008 MTWCC 34 Where an expert witness did not testify by trial or by deposition, and his report was not introduced into evidence, his fee is not recoverable as a cost under ARM 24.5.342.
Porter v. Liberty Northwest Ins. Corp. [03/06/08] 2008 MTWCC 12 Where Petitioner prevailed on some issues, but not on the issue related to his cervical condition, Petitioner cannot recover costs associated with the deposition of a doctor whose testimony related solely to the cervical condition.

Porter v. Liberty Northwest Ins. Corp. [03/06/08] 2008 MTWCC 12 Under ARM 24.5.342(6), items of cost not specifically listed in the rule may be awarded by the Court if the Court finds the item to be reasonable in light of the facts and circumstances of the case. In this case, the Court does not find that Respondent’s acquiescence to Petitioner’s request for an emergency trial in Helena constitutes circumstances justifying an award of costs for travel and lodging of Petitioner’s counsel.
Vanbouchaute v. Montana State Fund [08/23/07] 2007 MTWCC 37 In order to recover costs and attorney fees pursuant to § 39-71-611, MCA, the denial of the claim must be adjudged compensable by the Court. In this case, the Court indicated to the parties at the conclusion of the evidence what the decision would be on the issue of surgery. However, the Court did not formally adjudge the compensability of Petitioner’s claim before it was accepted and paid by Respondent. Although the Court made its intent clear to the parties as to the issue of medical benefits, the record is clear that it was not issuing a bench ruling on this issue. Since Respondent authorized Petitioner’s surgery before his claim was adjudged compensable by the Court, Petitioner cannot be awarded attorney fees or costs.
Heffner v. Montana State Fund [07/27/07] 2007 MTWCC 34 The language of ARM 24.5.342 is unambiguous and only allows for a prevailing claimant to recover costs. Moreover, both this court and the Montana Supreme Court have specifically held that an award of costs is not available to insurers. Montana Contractor Compensation Fund v. Liberty Northwest Ins. Corp., 2002 MTWCC 28, ¶ 3, citing Jaenish v. Super 8 Motel, 248 Mont. 383, 812 P.2d 1241 (1991). Therefore, although Respondent prevailed, since it is not a claimant, its application for costs is denied.
Mack v. Transportation Ins. Co. [06/11/07] 2007 MTWCC 19 Where Petitioner’s deposition was taken both for his claim in the Workers’ Compensation Court as well as his claim in District Court, Petitioner is only entitled to 50% of the costs associated with taking his deposition.
Briese v. ACE American Ins. Co. [02/17/06] Under the rules of the Workers’ Compensation Court, the Court may grant reasonable costs. ARM 24.5.342. The Court has wide discretion to determine what is reasonable. The Court finds Petitioner’s claim for the cost of an expert witness fee to answer written questions asked in a letter from Petitioner is unreasonable where Petitioner was given the opportunity to ask the expert questions at a deposition paid for by Respondent.

Briese v. ACE American Ins. Co. [02/17/06] Under the rules of the Workers’ Compensation Court, the Court may grant reasonable costs. ARM 24.5.342. The Court has wide discretion to determine what is reasonable. The Court finds the claim for the cost of a copy of a deposition transcript to be reasonable because a deposition transcript is generally necessary to prepare for trial and examination of witnesses, and to provide guidance in writing proposed findings of fact and conclusions of law.

Gamble v. Sears [01/30/06] 2006 MTWCC 5 Petitioner is entitled to her costs since she prevailed on the substantive issues of this action.
Preston v. Transportation Ins. Co. [08/08/05] 2005 MTWCC 46 The cost of appellate mediation is not a recoverable cost.
Preston v. Transportation Ins. Co. [08/08/05] 2005 MTWCC 46 Under Rule 24.5.342(2) of the Workers’ Compensation Court rules, the signature of an attorney constitutes his or her certification of the costs. Statutes requiring verification of costs in civil actions are inapplicable.
Van Vleet v. Montana Assoc. of Counties [03/01/05] 2005 MTWCC 10 The signature of an attorney on a memorandum of costs constitutes his or her certification that the costs were incurred and are reasonable, and it is ordinarily unnecessary to provide the actual documentation for such costs even though Rule 24.5.342 requires that documentation regarding some costs be maintained. However, where the opposing party questions the costs based on a failure to provide documentation for the requested costs, the Court will direct the production of the documentation.
Galetti v. MPC, Department of Labor, Subsequent Injury Fund [4/09/02] 2002 MTWCC 20 Under ARM 24.5.342, recovery of expert witness fees is permitted only where the expert testifies at trial or deposition.
Lindeman v. Connecticut Indemnity [3/08/02] 2002 MTWCC 14 Claimant cannot recover the cost of obtaining copies of doctors' depositions for use in trial preparation where the cost of the original depositions submitted to the Court was borne by respondent. Costs related to claimant's deposition are disallowed under ARM 24.5.342(4) where that deposition was not submitted to the Court.
Gary Galetti v. Montana Power Company [4/19/99] 1999 MTWCC 28 (Note: Gary Galetti v. Montana Power Company, 1999 MTWCC 11 was reversed at Galetti v. Montana Power Company, 2000 MT 234, 301 Mont. 314, 8 P.2d 812. Motion to amend granted where findings, conclusions and order failed to award costs on the issue on which claimant prevailed.

SLH v. State Fund [2/4/99] 1999 MTWCC 12 Cost of testimony of vocational consultant not allowed where there was no specification of cost of testimony and bill for services appeared to have been sent directly to insurer in any event as part of insurer's contract with consultant. Cost of physician's testimony granted where at least some of that testimony was relevant to an issue on which claimant prevailed.

Huffman v. Twin City Fire Ins. Co. [12/22/98] 1998 MTWCC 91 The signature of an attorney on the bill of costs is sufficient information to document that all telephone calls and postage relates to the case.
Derlatka v. Pacific Employers Ins. Co. [9/14/98] 1998 MTWCC 68 ARM 24.5.342 provides that documented photocopy, long-distance telephone, and postage expenses are generally found reasonable. Although respondent wanted further specification regarding telephone and postage charges (for instance, the identity of persons called) the Court approved the costs based on counsel's signature on the bill of costs representing the specific items were related to the case. Respondent's objection to the amount charged for photocopying is overruled where the Court finds the amount reasonable in light of charges made by the Court itself for copying and by the State Compensation Insurance Fund. Fax charges were disallowed based upon unanimous indication from counsel attending a rules committee meeting, including counsel in this case, that such charges are not ordinarily passed on to clients (see ARM 24.5.342(5)(c).)
Wall v. National Union Fire Ins. Co. [9/14/98] 1998 MTWCC 65 Insurer's objection to claimed costs for photocopying, telephone charges and postage were overruled where ARM 24.5.342 provides that documented photocopy, long-distance telephone, and postage expenses are generally found reasonable. Although respondent wanted further specification as to, for instance, the identity of persons called, the Court was satisfied with counsel's signature on the bill of costs representing the specific items were related to the case. However, deposition costs were disallowed because the particular deposition was not filed with the Court (see ARM 24.5.342(4)(a).) Fax charges were disallowed based upon unanimous indication from counsel attending a rules committee meeting, including counsel in this case, that such charges are not ordinarily passed on to clients (see ARM 24.5.342(5)(c).)
Ardesson v. Legion Ins. [2/19/98] 1998 MTWCC 9 Respondent disputed costs claimed by petitioner after trial. $51.50 in travel expenses for petitioner's counsel's secretary allowed where she was prepared to testify regarding various exhibits to which respondent had objected. Her testimony was not necessary given trial rulings, but that could not have been known to counsel prior to trial. The cost of preparation of the transcript from the first phase of trial is not allowed consistent with a prior WCC ruling that trial transcript costs would not be routinely allowed unless necessary for appeal or where specifically requested by the WCC. Here, the transcript was prepared for counsel's use at the second phase of trial and while that was a convenience to counsel, it is not an allowed cost. The cost surrounding a subpoena duces tecum issued to the claims adjuster requiring the original claims file at trial is allowed. Although counsel might have avoided the cost with a phone call to opposing counsel, he was entitled to guarantee that the file be brought through the subpoena process.
Bouldin v. Liberty Northwest Ins. Corp. [1/22/98] 1998 MTWCC 3 Pro sé claimant who prevailed at trial filed Memorandum of Costs seeking $805.00 for "loss of time from work." Cost claim denied where there are no provisions in the Workers' Compensation or Occupational Disease Acts, nor in the rules of the Workers' Compensation Court, for lost work time as a recoverable cost.
Marcott v. Louisana Pacific Corporation [4/26/96]1996 MTWCC 33 Where a deposition was filed with the Court, claimant is entitled to recover the cost of a copy of the deposition. A copy is essential to the use of the original in that it is necessary for cross-examination and, often, for preparing proposed findings and argument.
Brown v. Liberty Mutual Fire Ins. Co. [11/01/95] 1995 MTWCC 87 While the WCC has sometimes allowed travel costs of claimant and sometimes not, those costs are not allowed here where claimant’s testimony was not essential to trial. There is no support for allowing costs of travel for claimant’s children.

Brown v. Liberty Mutual Fire Ins. Co. [11/01/95] 1995 MTWCC 87 The cost of medical testimony and depositions has long been recoverable in WCC cases. Although the insurer objects to the testifying doctor’s charges for “records review” and “consultation,” those costs are recoverable where they were essential to the doctor’s preparation for testimony at trial on issues on which claimant prevailed, and his preparation undoubtedly reduced the time spent on testimony.
Brown v. Liberty Mutual Fire Ins. Co. [11/01/95] 1995 MTWCC 87 Under Kloepfer v. Bechtel Construction Co., 272 Mont. 78, 52 St. Rptr. 663 (1995), the costs recoverable in the Workers’ Compensation Court under the reasonable costs standard are not necessarily comparable to those recoverable in a district court case and are typically those costs the Workers’ Compensation Court has historically awarded.
Rooney v. Credit General Ins. [10/23/95] 1995 MTWCC 82 Claimant's request for compensation as litigation cost for a motel room he took on the day of his independent medical examination is denied where he flew by airplane to and from Billings on the same day of the exam and there is no medical opinion that he required a motel room in which to lie down prior to his flight home.
Rooney v. Credit General Ins. [10/23/95] 1995 MTWCC 82 Under Kloepfer v. Bechtel Construction Co., 272 Mont. 78, 52 St. Rptr. 663 (1995), costs payable in the WCC under the reasonable costs standard are not necessarily comparable to those recoverable in a district court case. It is settled that the WCC has developed a practice of allowing costs associated with medical testimony and depositions. After a September 20, 1995, meeting of the Workers' Compensation Court Rules Committee, the members agreed the Court should adopt a rule authorizing costs for photocopying, long distance telephone charges, and other charges that are typically billed to clients and not considered part of overhead. Here, costs are allowed for medical records, photocopies, telephone charges, and postage. See, ARM 24.5.342.
Caekaert v. State Compensation Ins. Fund [10/12/95] 1995 MTWCC 78 Costs in the Workers’ Compensation Court are not conditioned upon a finding of unreasonableness. See sections 39-71-611(1) and -612(1), MCA (1987).
Montana Schools Group Workers Compensation Risk Retention Program v. Department of Labor and Industry Employment Relations Division [09/27/95] 1995 MTWCC 48A-1 While the Court retained jurisdiction to following judgment on appeal to resolve disputes that may arise out of the rulemaking process ordered by the Court, jurisdiction was not retained for other purposes. Where neither the notice of appeal nor appellant’s brief requested attorney fees or costs, and where appellant’s motion for fees and costs was filed more than three months after judgment, the motion is not timely and is denied.
Peterson v. State Comp. Ins. Fund [01/11/95] 1994 MTWCC 105A-2 Costs of air travel for claimant and counsel, and expert witness fees beyond statutory rate for all witnesses, denied as recoverable costs in Workers’ Compensation Court (but see subsequent WCC decisions following adoption of WCC Rule on Costs, ARM 24.5.342 (which include expert witness fees).
Pulliam v. Liberty Mutual Ins. Co. [01/09/95] 1994 MTWCC 117-A Where the Worker’s Compensation Court allows recovery of costs for copying or enlargement of trial exhibits, the Court allowed costs associated with copying medical records admitted as exhibits, but did not allow costs claimed for copying file of Employment Relations Division, which was not offered into evidence.