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.