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Section 25–5–89 of Alabama’s Workers’ Compensation Act
provides a trial court the discretion to tax costs incurred by an injured party
in pursuing their claim against an employer. However, this discretion is not
unfettered and in Ex parte Ampro Prod., Inc., No. 2160818, 2017 WL
4563053, at *1 (Ala. Civ. App. Oct. 13, 2017), the Alabama Court of Civil
Appeals addressed the properness of such costs.
With regard to costs incurred for depositions, the Alabama
Court of Civil Appeals noted that while “a trial court may, in its discretion,
tax all of the costs of any deposition taken in a case, regardless of whether
the deposition was used at trial,” the costs may only be taxed “if the
deposition was reasonably necessary.” In the instant case, the only issue
before the trial court was whether or not the injury was compensable. As such,
the Court held that it was not proper to tax the costs the employee incurred in
retaining and deposing a vocational expert, as any opinion he may have provided
was not reasonable and necessary as to the issue of compensability.
The Court also rejected the taxing of mediation costs
incurred by the employee in advance of trial. The Court “agree[d] with the
employer that allowing the mediation costs to be taxed as costs in favor of a
prevailing party ‘would potentially act as a disincentive to mediating claims
generally.’” Because the parties had agreed to split the costs equally before
agreeing to medication, it held that the trial court had “exceeded its
discretion in taxing the mediation costs to the employer.”
The Alabama Court of Civil Appeals also rejected taxing of
costs incurred to retain a private-investigator. It cited Alabama Rules of
Civil Procedure, Rule 54(d) which expressly rejects inclusion of such fees
in support of its decision.
The Alabama Court of Civil Appeals also rejected taxing the
cost the employee incurred to pay a third-party service to order and receive
medical records. The Court, relying upon a United States District Court for the
Northern District of Georgia opinion, held that allowing such costs to be
recovered would essentially be akin to providing an award of attorney’s fees.
This is due to the fact that if such expenses were recoverable, it would
encourage the employee’s counsel to outsource tasks that would typically be
performed by the attorney “to circumvent clear restrictions [against an award
of attorney's fees].” Because such fees are not recoverable in workers’
compensation cases, the Court held that the trial court exceeded its discretion
in awarding such costs.
This case is good reminder
for employers and employees alike as to what costs are potentially recoverable
in a workers’ compensation case should it proceed to trial. By providing this
clarification, it should hopefully help the parties streamline the discovery
process such that neither party has to incur unreasonable costs in pursuing its
claim or mounting a defense.