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Brown v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

November 1, 1995

CARRIE BROWN Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for EAST COUNTY MARKET Employer.

          Submitted Date: October 13, 1995

          ORDER AWARDING COST

          Mike McCarter Judge

         Summary: Insurer disputed petitioner's claim for costs associated with doctor's "records review" and "consultation" and for expenses of claimant and her children in traveling from Alaska to Montana for trial.

         Held: 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. The cost of medical testimony and depositions has long been recoverable. Here, the insurer does not object to costs of the doctor's testimony but objects to costs for records review and consultation. Where those costs 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, those costs are allowed. 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 her children; those costs are disallowed.

         Topics:

Costs: WCC Costs. 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.
Costs: WCC Costs. 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.
Costs: WCC Costs. 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.

         The trial in this matter was held on August 28, 1995. At the close of trial a bench ruling was made and the Court has been advised there will be no appeal of that ruling by the insurer.

         Claimant filed her Petition for Costs on September 18, 1995. Insurer responded, disputing the costs for records review and expert consultation and for travel expenses for the claimant and her children to attend the trial.

         Insurer does not dispute the cost for the doctor's testimony at the time of trial in the amount of $300.00 nor the cost for the claimant's deposition in the amount of $81.15.

         Claimant maintains that she is entitled to all costs for the medical expenses charged by Dr. Dingeman of Fairbanks, Alaska. These charges were broken down to reflect; (1) a records review - $100.00, (2) telephone conversation - $150.00, and (3) deposition with the Judge (trial testimony) - $300.00. Insurer concedes the cost of the trial testimony but argues that the other two charges are not reasonable costs which have been "historically" allowed by the Workers' Compensation Court.

         On July 25, 1995, the Montana Supreme Court issued its decision in Kloepfer v. Bechtel Construction Co., 52 St.Rptr. 663 (1995). The Supreme Court found that "the costs payable in Workers' Compensation Court under the reasonable costs standard are not necessarily comparable to the standard applied in normal district court cases." Specifically, the court held "there is no issue of fact regarding the past practice of the Workers' Compensation Court to award a successful claimant the cost of medical testimony and depositions." The Court expressly overruled its prior holdings in Baeta v. Don Tripp Trucking, 254 Mont. 487, 839 P.2d 566, (1992) and Stevens v. State Compensation Insurance Fund, 268 Mont. 460, 886 P.2d 962 (1994) that costs in workers' compensation cases are governed by section 25-10-201, MCA. Essentially the Supreme Court held reasonable costs under the statutes are those which the Court has historically awarded.

         A fairly extensive review of the attorney fee and cost decisions of the Workers' Compensation Court demonstrate that expert witness fees and consultation fees have been "historically" allowed in a number of cases. As early as ...


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