In a 5-2 decision announced today, the Supreme Court of Ohio ruled that when a trial court reviewing an award of workers’ compensation benefits affirms the eligibility of a claimant for benefits on at least one of multiple claimed medical conditions, the claimant is legally entitled to recover attorney fees and costs of the appeal process regardless of which or how many  of the claimed conditions were approved.

The court’s decision, authored  by Justice Yvette McGee Brown, resolved a conflict between two court of appeals districts regarding whether a claimant’s recovery of legal fees and costs should be apportioned according to the number of claimed conditions that were allowed and denied on appeal.

The case involved a workers’ compensation claim filed by Jeff Holmes for injuries to his hand, arm, shoulder and back that he alleged were caused when he suffered an electric shock while working for  Crawford Machine, Inc.   After several rounds of administrative review, a Bureau of Workers’ Compensation staff hearing officer awarded Holmes benefits for six different claimed medical conditions.  After the Industrial Commission declined to conduct a further review of the case, Crawford Machine exercised its right to appeal the staff hearing officer’s award to the Crawford County Court of Common Pleas. Holmes petitioned the court for approval of all his allowed conditions, and for recovery from Crawford Machine of the legal fees and costs he incurred during the appeal process.

Following a jury trial, the court ruled that Holmes was eligible for benefits for one of his six claimed conditions, an abrasion to the fifth finger of his right hand, but was not entitled to benefits for the five other conditions that had been allowed by the staff hearing officer.  Holmes asked the court to make an award of the attorney fees and costs he had incurred as a result of  the appeal.  The court granted Holmes’ motion and ordered Crawford Machine to pay $4,200 in attorney fees and $7,551 in other costs. 

Crawford Machine appealed from the judgment granting attorney fees and costs, and Holmes appealed from the judgment allowing one, but not all, of his claimed conditions. The Third District Court of Appeals consolidated the appeals. The court upheld the judgment allowing only one claim, and reversed the trial court’s judgment awarding Holmes attorney fees and costs.  The Third District subsequently certified that its ruling on Holmes’ eligibility to recover attorney fees and costs was in conflict with a decision of the Tenth District Court of Appeals on the same legal issue. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the majority in today’s decision, Justice McGee Brown wrote: “R.C. 4123.512(F) provides for the reimbursement of the ‘cost of any legal proceeding,’ including attorney fees, incurred by a claimant who prevails on a workers’ compensation appeal. ...  We have previously explained (in Schuller v. United States Steel Corp., 2004)that R.C. 4123.512(F) is a provision intended to protect a claimant who is forced to litigate an appeal.  ‘[T]he legislative intent behind [R.C. 4123.512(F)] ...  is that “a claimant’s recovery shall not be dissipated by reasonable litigation expenses connected with the preparation and presentation of an appeal.”’ 

“Since claimants in this position incur out-of-the-ordinary expenses in order to establish their right to participate in the fund, expenses that other claimants do not incur, R.C. 4123.512(F) provides a financial award to a successful claimant so that he or she can retain more of the recovery.  ... This policy behind the statute and our cases interpreting the statute focus not on the outcome of the particular claims raised by a claimant, but instead on the cost of litigating the appeal.”

“R.C. 4123.512(F) applies specifically to a claimant who is adjudged on appeal to be eligible to participate in the fund.  In other words, the event that triggers the availability of reimbursement under R.C. 4123.512(F) is the establishment on appeal that a claimant has the right to participate or continue to participate in the fund. ... We must apply the section in a manner consistent with the plain meaning of the statutory language; we cannot add words. ... We would impermissibly add language to the statute if we were to hold that a claimant must be reimbursed for costs only when his or her right to participate or to continue to participate in the fund is established upon the final determination of an appeal and when the costs are related to a particular claim and/or condition.”

“The plain language of R.C. 4123.512(F) requires a trial judge to order reimbursement to a claimant for costs, including attorney fees up to $4,200, if the claimant’s right to participate in the fund is established or upheld on appeal.  In this case, Holmes was adjudged to be entitled to participate in the fund for a fifth-finger abrasion.  Therefore, pursuant to R.C. 4123.512(F), the trial court was required to reimburse him for his costs, including attorney fees, associated with his appeal.  Since R.C. 4123.512(F) does not require an apportionment of these costs based on the outcome of Holmes’s particular conditions, the trial court did not abuse its discretion when it made no such division of costs”.   

Justice McGee Brown’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Judith Ann Lanzinger.

Justice Terrence O’Donnell entered a dissent, joined by Justice Robert R. Cupp, in which he disagreed with the majority’s reading of R.C. 4123.512(F). Justice O’Donnell wrote: “R.C. 4123.512(F) does not authorize the award of costs and fees incurred in bringing unsuccessful claims.  Each claimed injury represents a separate claim for the right to participate in the workers’ compensation fund, and the legislature intended that a court award only those costs and fees that relate to the specific injury entitling the employee to participate. In its enactment of R.C. 4123.512(F), the General Assembly did not intend to shift the costs of litigating unsuccessful claims to employers; rather, it intended only that workers not bear the costs of seeking to participate for legitimate injuries occurring in the workplace, and it therefore limited reimbursement to successful claims.”

“In this case, the jury found Holmes entitled to participate in the workers’ compensation fund only for an abrasion on his right fifth finger, an injury treated on site with a bandage.  And although Holmes’s expert did not examine this finger or base an opinion on it, the trial court awarded Holmes the expert’s fee.  This award, in my view, is therefore unreasonable and not based on the effort expended.  Nor is it reasonable to award $7,551.23 in costs for an injury that consisted of a small abrasion treated by a bandage.  Thus, the trial court awarded costs and fees that are not related to the injury for which Holmes is entitled to participate in the workers’ compensation fund but rather were incurred to pursue unsuccessful claims.  Because these costs and fees are neither reasonable nor based on the effort expended on the successful claim, I would affirm the judgment of the appellate court.”

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2011-2040. Holmes v. Crawford Machine, Inc., Slip Opinion No. 2012-Ohio-5380.
Crawford App. No. 3-11-12, 2011-Ohio-5741.  Judgment reversed.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, and McGee Brown, JJ., concur.
O’Donnell and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5380.pdf

View oral argument video of this case.