IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
1996 MTWCC 55A-2
WCC No. 9110-6271
GUARANTY FUND SERVICES
FRASURE d/b/a O'HAIRE MOTOR INN RESTAURANT
ORDER GRANTING ADDITIONAL COSTS;
ORDER DENYING MOTION TO AMEND FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The Court has two post-trial
motions before it. One is a motion to tax additional costs to respondent
and is based on the Court's failure to consider a supplemental bill of
costs filed by the claimant. The other motion, filed by respondent, Western
Guaranty Fund Services (Western), requests the Court to recompute claimant's
loss of earning capacity.
Western's motion is denied.
It presents no new matter. Its remedy is an appeal rather than to argue
with this Court.
The claimant's request that
the Court revisit costs, however, is well taken. Claimant filed her original
request for costs on May 12, 1994. However, since two years have passed
and additional costs have been incurred in the case, the claimant requested
the opportunity to supplement her request. She did so on May 10, 1996,
in her Petitioner's Application for Taxation of Costs. The Court overlooked
this later filing when it entered its Order Awarding Attorney Fees and
Costs (July 29, 1996). The additional costs claimed in the May 10, 1996
request, and not considered by the Court, are as follows:
of Susan Austad
of Mary Ann Driscoll
w/Copies of Exhibits
B. 1992 Depositions of Dr.
C. Depositions of petitioner
|2. April 5,
D. Expert witness fees for
Dr. Dennis Dietrich, M.D. - time spent giving deposition, reviewing and
|1. April 24,
|2. July 17,
E. Expert witness fees for
Pete Sesselman, CRC - for time and expense spent in researching and testifying
on those subjects permitted by the Court at hearing on April 30, 1996:
F. Photocopy expenses for
cost of making copy of the 1992 trial transcript: $103.40
G. Postage expenses for mailing
transcript to the Court: $ 6.75
H. Other Costs:
1. Costs charged by Dr.
Dietrich's Office on May 19, 1992, to obtain medical records: $ 56.00
2. Costs charged by Dr.
Dietrich's office on July 15, 1992, to obtain medical records: $ 10.00
The Court finds that some
of these additional costs are taxable to Western and some are not, as
1. Depositions of Susan
Austad and Mary Ann Driscoll. These depositions were taken in April
1996, long after remand, and apparently pertain to foster care provided
by claimant. The Austad deposition was initially filed with the Court,
but later withdrawn at trial. The Driscoll deposition was never filed.
The costs for depositions not used at trial are generally not taxable.
McGinley v. Ole's Country Store's Inc., 241 Mont. 248, 250,
786 P.2d 1156-7 (1990). Moreover, although taken at the behest of Western,
the matters covered in these depositions plainly exceeded the scope
of the issues on remand. Copies of the depositions were unnecessary
and the request for the costs is denied.
2. Dr. Dietrich's 1992
Depositions and Expert Witness Fees. Western argues that Dr. Dietrich's
depositions were taken to support claimant's assertion that she is permanently
totally disabled and that the depositions therefore related to an issue
on which the claimant did not prevail. The Court agrees. Western asserted
in the original pretrial order filed February 26, 1996, that claimant
was permanently partially disabled and employable. Having read Dr. Dietrich's
depositions I am persuaded that they were taken to support claimant's
total disability argument. Dr. Dietrich's opinions concerning claimant's
ability to work were not adopted by the Court and claimant was determined
to be only permanently partially disabled. Claimant is not entitled
to costs incurred in connection with issues upon which she did not prevail.
Carrie Brown v. Liberty Mutual Fire Ins. Co., WCC No. 9505-7315,
Order Awarding Costs at 2-3 (November 1, 1995). The requests for costs
associated with Dr. Dietrich's depositions are therefore denied.
3. Depositions of Linda
a. 1995 and 1996 Depositions
of Linda Miller. The issue on remand involved an arithmetical
computation and claimant's testimony was unnecessary. The 1996 deposition
was never filed with the Court and neither deposition was utilized
by the Court in reaching its decision. The request is denied.
b. February 21, 1992
Deposition of Linda Miller. This deposition was neither submitted
to the Court for its consideration in reaching its decision nor used
during trial. The request for taxation of the cost of a copy of this
deposition is therefore denied.
4. Trial Testimony and
Expert Witness Fee of Peter F. Sesselman. Western objects to the
expert witness fee submitted for Peter F. Sesselman, a vocational expert
who testified on behalf of claimant. Western argues that Sesselman was
employed for purposes beyond the limited matters at issue on remand
and that the invoice for his services fails to affirmatively show that
his services related to the issues at trial.
While the nature of some
of the services are not as clear as they should be, Western's argument
that only .6 hours of the 13.8 hours billed relate to matters at issue
at trial (Respondent's Objections, May 21, 1996) is without merit. In
the prior proceeding, the Court identified five potential jobs as suitable
for claimant, those jobs being: receptionist, nursing secretary, civil
clerk, office clerk, and patient billing clerk. Claimant's prior job
was as a waitress. Sesselman's entries indicate he spent 1.8 hours surveying
"Acct. Clk" positions and .6 surveying "Waitress Wages." An accounting
clerk is plainly a related clerical job of the type identified in the
original trial. He also spent 2.0 hours surveying "Recept/Ticket." Sesselman
testified at trial that he contacted ten employers for information on
receptionists, one of the potential positions he had identified. Sesselman
also surveyed a job described as "Telephone Ans," which the Court takes
to mean a telephone answering position. Receptionists may spend much
of their time answering telephones, so such a position may fairly be
considered. Finally, Sesselman surveyed a keno caller job for 1.0 hours.
Keno caller is a job requiring few physical abilities and few skills.
Claimant is overqualified for that job but it is not one which is necessarily
outside her labor market or physical abilities. Sesselman spent the
remainder of his time talking to claimant's attorney (.3 hours), doing
file review, checking wage and labor market statistics, waiting at the
Court for his turn to testify, and testifying. Thus, the invoice presents
clear and unequivocal evidence that Sesselman spent his time identifying
wages for waitresses and for jobs of the sort the Court previously found
her qualified to perform. Western's suggestion that he spent his time
on unrelated matters is utterly unsupported and spurious. The full amount
of $776.12 is allowed.
5. Photocopies and Postage.
These costs are claimed with respect to a copy of the transcript furnished
by claimant's counsel to the Workers' Compensation Court in May 1993.
Counsel for claimant represents that it is his "recollection that the
clerk requested a copy of the transcript in May 1993." (Petitioner's
Combined Request to Amend and Application for Taxation of Costs at 4.)
The claimant filed a Notice of Appeal on May 20, 1993. As the appealing
party, claimant was responsible for furnishing an original and two copies
of the transcript. If the copy at issue here is one of those copies,
then it is a cost on appeal. Claimant has not sought costs for appeal.
Therefore, this item is denied.
6. Copies of Dr. Dietrich's
records. Western objects to payment for the records on the ground
that they were related to the total disability issue upon which claimant
did not prevail. However, copies of medical records are commonly provided
to the Court as background information on the claimant's condition and
the expense of such records is ordinarily taxable. See Rocky G.
Rooney v. Credit General Insurance, WCC No. 9411-7166, Order Awarding
Costs (October 23, 1995). Dr. Dietrich was claimant's treating physician.
The request of $66.00 incurred to secure his records is allowed.
IT IS THEREFORE ORDERED that
costs in the amount of $776.12 for Peter Sesselman's research and testimony
plus $66.00 charged by Dr. Dietrich's office to obtain medical records
are allowed. The total amount of $842.12 ($776.12
+ $66.00) is to be added to the previous award of costs. Therefore,
the prior order for costs is amended to award claimant a total of $2,916.46
($2,074.34 + $842.12) in costs.
DATED in Helena, Montana,
this 10th day of September, 1996.
c: Mr. William O. Bronson
Mr. K. Dale Schwanke
Submitted: August 30, 1996