COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71391 & 71516 RONALD P. EVANS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TNT HOLLAND MOTOR EXPRESS, : ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 10, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-290228 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANTS-APPELLANTS: Geoffrey J. Shapiro, Esq. Corey V. Cragnale, Esq. Shapiro, Kendis & Assoc. Schottenstein, Zox & Dunn 15th Floor Rockefeller Bldg. 41 South High Street 614 W. Superior Avenue 26th Floor Cleveland, Ohio 44113 Columbus, Ohio 43215 Steve P. Dlott, Esq. Asst. Attorney General 1200 State Office Bldg. 615 W. Superior Avenue Cleveland, Ohio 44113-1899 - 2 - ROCCO, J.: Appellant appeals the trial court's order, accepting the jury's verdict in favor of appellee, on the grounds the trial judge improperly instructed the jury. As the trial judge's jury instructions were not an abuse of discretion, we affirm. Appellant also appeals from the trial court's order granting appellee attorney's fees and costs. As the trial court correctly awarded costs to appellee but incorrectly computed the costs, we affirm the award of costs, but modify the amount awarded to appellee. In May 1993, appellee Ronald Evans (hereinafter appellee) alleges he was injured while in the course and scope of his employment with appellant TNT Holland Motor Express (hereinafter appellant). Appellee was employed as a truck driver delivery person by appellant when he allegedly lifted a box of books and suffered an injury to his back. Appellee filed an application for benefits under the Ohio Workers' Compensation Act. Appellee's claim was allowed for an injury described as acute lumbosacral strain. No appeal was taken from this determination. Appellee subsequently sought to have his claim additionally allowed for the conditions of aggravation of pre-existing degenerative disc disease of the lumbar area and disc protrusion of the L4-5 and L5-S1. This claim was assigned Claim No. L233900-2, and was allowed. Appellant appealed the allowance of the claim to the Staff Hearing Officer who affirmed the decision. Ultimately, an appeal to the Industrial Commission was refused. - 3 - Appellant then timely appealed the allowance of appellee's additional allowance claim to the court of common pleas pursuant to R.C. 4123.512. Trial commenced on August 26, 1996. Prior to trial, appellant sought to prohibit any argument or testimony that stated that appellee's claim had been previously allowed for the condition of acute lumbosacral strain. The trial court denied appellant's motion. The jury subsequently determined that appellee was entitled to participate in the Workers' Compensation Fund of Ohio. Appellant filed its notice of appeal of the trial court's entry adopting the jury's verdict. On September 18, 1996, appellee filed a motion seeking costs and statutory attorney's fees pursuant to R.C. 4123.512. Appellant did not oppose appellee's motion for attorney's fees. However, appellant contested the award for costs. The trial court granted appellee's motion in its entirety. Appellant filed a second notice of appeal of the trial court's order granting appellee's motion in full. Appellant's two appeals were consolidated. Appellant's first and second assignments of error can be considered together. Appellant contends: I. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY TO DISREGARD COUNSEL'S REFERENCE, DURING CLOSING ARGUMENTS, TO THE INDUSTRIAL COMMISSION'S RECOGNITION OF PLAINTIFF-APPELLEE'S CLAIMS. II. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT PLAINTIFF-APPELLEE'S CLAIM FOR WORKERS' COMPENSATION BENEFITS WAS ALLOWED BY THE INDUSTRIAL COMMISSION FOR THE CONDITION OF LUMBOSACRAL STRAIN. - 4 - Appellant maintains that the prior approval of appellee's claim for acute lumbosacral strain is irrelevant for purposes of the action sub judice. It is appellant's position that allowing reference to the prior claim prejudiced its rights to a trial de novo. Initially, this court recognizes that appellee's claim for acute lumbosacral strain is not at issue in the within appeal. R.C. 4123.511(B)(1) requires that an appeal of an order issued by the administrator of workers' compensation be appealed within fourteen days of receipt of the order. In the action sub judice, it is undisputed that no appeal was filed. Thus, neither the trial court nor this court has jurisdiction to review the order regarding the condition of acute lumbosacral strain. An appeal in the court of common pleas, brought pursuant to R.C. 4123.512, is entitled to a de novo review. Youghiogheny Ohio Coal Co. v. Mayfield (1984), 11 Ohio St.3d 70 (referring to former R.C. 4123.519) (citations omitted.) When an employer appeals an unfavorable administrative decision to the court, the claimant must, in effect, reestablish his workers' compensation claim to the satisfaction of the common pleas court even though the claimant has previously satisfied a similar burden at the administrative level. Id. quoting Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, 118. Appellant argues that the mention of appellee's previously allowed claim prejudiced its rights to a trial de novo. In support of its contentions, appellant relies on Jones v. Keller, Admr. - 5 - (1966), 9 Ohio App.2d 210. The plaintiff in Jones suffered an injury for which benefits were allowed, and no appeal was filed. Approximately three years later, the plaintiff sought an additional award of benefits, alleging he had developed a psychiatric disturbance as the result of his injury. That application was denied, and the plaintiff appealed the denial to the common pleas court. Id. The trial court, in its instruction to the jury, informed them that the specific claim at issue had been denied below. Id. Reasoning that it is improper to reference at a new trial the result of a former trial or hearing of the same cause, the appellate court concluded that the disclosure of the prior denials of the claim was repugnant to the concept of a trial de novo in the Court of Common Pleas. Id., But see Valentino v. Keller (1968), 15 Ohio App.2d 109, (if reference of prior hearings is made to the jury, the trial court may overcome the prejudice by specifically instructing the jury that they are not to consider such decisions in their deliberations but are to make their decisions on the evidence presented to them). However, in Jones, the trial court disclosed the prior dismissals of the "specific claim now at issue." Id. Thus, Jones is distinguishable. In the action sub judice, the claim which appellant sought to prevent from being mentioned was not the claim at issue before the trial court. - 6 - Appellant also directs this court's attention to Stahl v. Cooper Tire & Rubber Company (March 31, 1995), Hancock App. No. 5- 94-35. In Stahl, the plaintiff was allegedly injured during the course and scope of his employment. The employer did not appeal an allowance of a claim for a lumbar strain injury, but did appeal the allowance of the plaintiff's claim for a herniated disc, allegedly arising from the same incident. Id. The court stated: *** it is clear that if either the claimant or the employer, pursuant to R.C. 4123.512 (or, former R.C. 5123.519) (sic), appeals an order of the Industrial Commission of Ohio, the claimant is required to establish his right to participate in the fund by demonstrating that the injury of which he complains was "received in the course of, and arising out of, the injured employee's employment." R.C. 4123.01(C). Thus, each and every element of appellant's right to participate in the fund must have been demonstrated in the trial court, and alternatively, appellee was entitled to present evidence that appellant was not permitted to participate in the fund. Id. The court determined the trial court correctly permitted the employer to relitigate the original allowance of plaintiff's workers' compensation claim that had concluded the plaintiff suffered an injury in the course of and arising out of his employment. Id. Subsequently,the court in Bashore v. Adia Temporary Services (December 18, 1996), Shelby Cty. App. No. 17-96-9, addressed a similar issue. In Bashore, the plaintiff's claim for workers' compensation benefits had been allowed for the condition of abrasion and contusion of the left knee, but disallowed for the condition of internal derangement of the left knee. The employee - 7 - appealed f Idthe denial of the claim for the internal derangement othe lef The court noted that, although the employee may have been permitted to participate in the fund for the condition of abrasion and contusion of the left knee, he was still required to prove that his additionally claimed injury was sustained in the course of, and arising out of, his employment. Id. Thus, the only issue on appeal was whether the employee was entitled to participate in the fund for the condition of internal derangement of the left knee; the previously allowed condition was not a part of the issues presented on appeal. Id. In the action sub judice,the claim for the appellee's alleged conditions of aggravation of pre-existing degenerative disc disease and disc protrusion at L4-5 and L5-S1 levels was the only issue properly before the trial court. Therefore, regardless of the outcome of the prior claim, it was incumbent upon appellee, on appeal to the trial court, to demonstrate his injury was "received in the course of, and arising out of, [his] employment."1 Inhis closing argument, appellee's attorney stated: It has been determined and is not for your judgment that this gentleman sustained an acute lumbosacral strain at work. You will not change that, ladies and gentlemen. That is not part of your job. It has been determined that there was a lumbosacral strain at work so the issue boils down to did the lumbosacral strain aggravate the preexisting condition? 1An "injury" as used in the workers' compensation statutes is defined in R.C. 4123.01(C) as any injury "received in the course of, and arising out of, the injured employee's employment." - 8 - However, in his instructions to the jury, the judge stated: There may have been testimony about what the agency administering the fund decided. That decision is now disputed. You must ignore that evidence and determine this case solely on the testimony presented to you in this Court. The ultimate issue which you must determine is whether plaintiff is entitled to participate in the State Insurance Fund by receiving benefits for this injury. *** It is further agreed that Ronald Evans filed an applica- tion for Workers' Compensation benefits which was recognized for injuries described as acute lumbosacral strain. It is agreed that Ronald Evans in this lawsuit seeks to have his claim allowed for aggravation of preexisting degenerative disc disease of the lumbar area and disc protrusion of L-4-5 and L-5 S-1. *** To participate in the Workers' Compensation Law, plaintiff must establish the following essential facts: That as a direct or proximate result of the injury of May 20th, 1993, plaintiff sustained an injury described as central aggravation of preexisting degenerative disc disease of the lumbar area and disc protrusion of L-4-5 and L-5 S-1. *** The law requires that the Plaintiff, Ronald Evans, prove by the greater weight of the evidence that his aggrava- tion of preexisting degenerative disc disease of the lumbar area and disc protrusion at L-4-5 and L-5 S-1 was suffered in the course of his employment with TNT Holland Motor Express. (Emphasis added.) The proper standard of review for the trial court's instructions to the jury is whether the trial court abused its discretion. State v. Wolens (1989), 44 Ohio St.3d 64. An abuse of discretion "connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Wilmington Steel Products, Inc. v. Cleve. Elec. - 9 - Illum. Co. (1991), 60 Ohio St.3d 120, 122 quoting Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. Further: [a] jury charge must be considered as a whole and a reviewing court must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party's substantial rights. Ohio Farmers Ins. Co. v. Cochran (1922), 104 Ohio St. 427, 135 N.E. 537, paragraph six of the syllabus; Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, 19 OBR 71, 482 N.E.2d 955. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. In the action sub judice,the trial judge correctly stated the issue to be decided and rejected appellee's attorney's characterization of the issue. The trial judge's instructions to the jury did acknowledge the prior determination for the claim for acute lumbosacral strain. However, the judge further instructed that the plaintiff was still required to prove his injury was received in the course of and arising out of his employment. Nowhere did the judge state that the previous determination sufficiently established that plaintiff's claim for aggravation of pre-existing degenerative disc disease and disc protrusion at L4-5 and L5-S1 arose out of his employment. Construing the judge's jury instruction as a whole, there is no evidence that the trial judge misled the jury on a matter materially affecting the complaining parties substantial rights. The trial judge did not abuse his discretion when he instructed the jury. Appellant's first and second assignments of error are overruled. - 10 - Appellant's third assignment of error states: THE TRIAL COURT ERRED BY AWARDING PLAINTIFF-APPELLEE VARIOUS COSTS UNDER REVISED CODE SECTION 4123.512. Appellant further maintains the trial court erred when it granted, in full, appellee's motion for statutory attorney fees and costs. The following items were assessed as costs: 1. Costs for the transcript of deposition of John Kuhnlein, M.D., appellant's medical expert, in the amount of $233.50. 2. Costs for the transcript of the discovery deposition of John H. Nickels, M.D., appellee's expert witness, taken by appellant, in the amount of $314.95. 3. Costs of the transcript for the deposition of Antoinette Banis, taken by appellee, in the amount of $248.25. 4. The expert witness fee for Dr. Nickels, in the amount of $500. Appellant does not dispute either the trial court's granting of attorney's fees or of the expert witness fee. However, appellant contends the trial court incorrectly taxed as costs the transcription of the depositions. R.C. 4123.512(D) provides: *** Any party may file with the clerk prior to the trial of the action a deposition of any physician taken in accordance with the provisions of the Revised Code, which deposition may be read in the trial of the action even though the physician is a resident of or subject to service in the county in which the trial is had. The bureau of workers' compensation shall pay the cost of the deposition filed in court and of copies of the deposition for each party from the surplus and charge the costs thereof against the unsuccessful party if the claimant's right to participate or continue to participate in the fund is finally sustained or established in the appeal.*** - 11 - R.C. 4123.512(F) also provides that "the cost of any legal proceedings authorized by this section *** in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer contested the right of the claimant to participate in the fund." Appellant contends this statute does not permit the costs associated with the depositions of Ms. Banis or Dr. Kuhnlein. Additionally, the costs associated with Dr. Nickels' deposition should not be included as his transcript was not used at trial since he testified live, and his costs were included in the award of expert witness fees. "Expenses" and "costs" are not synonymous, costs are only awarded when expressly made so by statute. State ex rel. Williams v. Colasurd (1995), 71 Ohio St.3d 642, 643, citing Benda v. Fana (1967), 10 Ohio St.2d 259, 263, 39 O.O.2d 4100, 227 N.E.2d 197, 201. Costs of the deposition are payable to a claimant regardless of litigation success. Colasurd, supra, citing Akers v. Serv-A- Portion, Inc. (1987), 31 Ohio St.3d 78, 31 OBR 190, 508 N.E.2d 964, syllabus. The statute expressly permits any party to file "a deposition of any physician taken in accordance with the provisions of the Revised Code, which deposition may be read in the trial of the action ***." (Emphasis added.) There is no requirement in the - 12 - statute that the deposition actually be used at trial. The bureau of workers' compensation is required to pay the cost for the deposition "filed in court and of copies of the deposition for each party ***." Furthermore, R.C. 4123.512(F) taxes against the employer or the commission the "cost of any legal proceedings authorized by this section *** in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal ***." As appellee successfully established his right to participate in the fund, any legal proceeding authorized by this section may be taxed against appellant. Dr. Kuhnlein was presented at trial via videotape. While dual payment is not permitted, appellee sought only to recover the costs of the deposition transcript. See Colasurd, supra at 644. The costs for the deposition of Dr. Kuhnlein are expressly permitted by statute, and were properly taxed as costs. Dr. Nickels testified live at trial. However, his deposition was previously taken and filed with the court. Thus the transcript of his deposition, as well, was properly taxed as costs. Finally, appellant contests the costs awarded for the deposition of Antoinette Banis, the terminal manager for appellant, and a corporate designee for purposes of the trial below. Appellee urges us to liberally construe the statute in favor of employees. See Moore v. General Motors Corp. (1985), 18 Ohio St.3d 259, 261. - 13 - In Moore, the prevailing party was the injured employee, and the court determined that "costs of the deposition" included all costs incurred at the deposition that was filed, including expert fees. Id. at 262. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, statutory interpretation need not be applied. Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 96, (citations omitted.) Moreover, when interpreting a statute, all words used should be given their usual and ordinary meaning and signification. See, e.g. Carter v. Youngstown(1946), 146 Ohio St. 203, 207. There is no provision in the statute authorizing recovery for costs of a deposition other than that of a physician. Thus, the trial court incorrectly taxed as costs the transcript of the deposition of Ms. Banis. Appellant's third assignment of error is overruled as costs were properly awarded to appellee for the deposition transcripts of both Dr. Kuhnlein and Dr. Nickels. However, as the trial court incorrectly included the costs for the deposition transcript for Antoinette Banis, the amount of costs awarded is modified. The trial court's order accepting the jury's verdict finding that appellee is entitled to participate in the Workers' Compensation Fund of the State of Ohio is affirmed. That portion of the trial court's order granting appellee's motion for costs is affirmed, however the amount of costs awarded is modified. Costs are granted to appellee in the sum of $1,048.45. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P. J., AND ANN DYKE, J., CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .