Workers’ Compensation Opinion Released

The Alabama Court of Civil Appeals determines that costs for mediation cannot be assessed as costs of action.

In Col­vin v. Ampro Products, Inc., the claimant filed a workers’ compensation action against the defendant, Ampro Products, Inc. The trial court held a hearing on the issue of compensability. After the hearing, the employer filed a motion requesting that the trial court dismiss the employee’s complaint pur­suant to Ala. R. Civ. P. 41(b) as a sanction for his having allegedly perjured himself. The trial court entered an order finding that the employee had suffered a compensable in­jury and it taxed the expenses requested by the employee as costs against the employer. The employer filed a petition for writ of mandamus.

Writ of mandamus granted.

(1)   The employer admitted that, in his depositions and inter­rogatories, he had given inaccurate and/or incomplete answers regarding his prior medical and employment his­tories. However, the employee testified that he had been confused about some of the questions and that he had not remembered portions of his history when asked about that history during his depositions. Furthermore, through the discovery process, the employer had been able to obtain records concerning the employee’s medical and employ­ment histories and had had the opportunity to cross-ex­amine the discrepancies between those records and the employee’s discovery responses. “Based on the foregoing, we conclude that the trial court could have determined that some, if not all, of the employee’s inaccurate testimony had been unintentional and that any disadvantage to the employer had been ameliorated by further discovery and the cross-examination of the employee at the compensa­bility hearing.” The trial court did not err by refusing to dismiss the employee’s case.

(2)   The employer argued there was not substantial evidence of legal and medical causation to support a finding of compensability. The trial court relied heavily on the testimony of Dr. Stephen Ikard. The employer failed to submit the entire deposition of Dr. Ikard or the complete medical records as appendices to the mandamus petition. “Without the benefit of the complete evidentiary materials upon which the trial court expressly relied, we cannot determine that there was not substantial evidence of legal and medical causation to support the de­termination of compensability.”

(3)   The employer argued the trial court erred in taxing certain costs against it. It first challenged the costs taxed against it for the deposition of the employee’s vocational expert. A trial court may tax the costs of any deposition taken in a case if the deposition was “reasonably necessary.” Bundrick v. McAllister, 882 So.2d 864, 866 (Ala. Civ. App. 2003)[12 ALW 51-11] In this case, the sole issued thus far decided is compensability. The vocational expert’s testimony was not relevant to that issue and therefore, it was not “reasonably necessary” to the issues that have been decided. The costs of the deposition were not properly taxed. The employer also argued that mediation fees are not recoverable as costs and that allowing those fees to be taxed would discourage parties from participating in mediation. Ala. Code 1975, §6-6-20(b)(2) states that the party asking for mediation shall pay the costs of mediation, except attorney fees, un­less otherwise agreed.”

ln this case, the parties agreed to divide the costs of mediation equally. “We agree with the employer that allowing the mediation costs to be taxed as costs in favor of the prevailing party ‘would potentially act as a disincentive to mediating claims generally.’ Kayser v. McClary, 875 F.Supp. 2d 1167, 1183 (D. Idaho 2012).” The employer next challenged the award of costs for a private ­investigator to serve a subpoena. Such costs are not proper­ty taxable under Ala. R. Civ. P. 54(d). Finally, the employer argued that the cost to pay a third-party service to order and receive medical records are not recoverable under Rule 54(d). In workers’ compensation cases, attorney’s fees are not recoverable in the absence of bad faith on the part of the employer. There was no allegation of bad faith in this case. The costs for paying outsourced personnel to perform services to locate medical records is akin to an award of attorney’s fees and is not permissible. The petition for writ of mandamus is due to be granted in part and denied in part. Ex parte Ampro Products, Inc. (Colvin v. Ampro Products, Inc.), 26 ALW 42-3 (2160818), 10/13/17,