PATRICIA A. LAMB, Employee/Appellant, v. ALLINA HEALTH SYS. d/b/a UNITED HOSP., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., INC., Employer, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 5, 2002

 

HEADNOTES

 

COSTS & DISBURSEMENTS; PRACTICE & PROCEDURE - DEPOSITIONS.  Since the deposition of the employee=s treating physician was cancelled no more than five business days prior to the date on which it was scheduled, the compensation judge improperly used, as a guideline, Minn. R. 5219.0500, subp. 3.H.(5)(a), which allows no fee for a deposition which is cancelled at least six business days prior to the scheduled date.

 

Reversed and remanded.

 

Determined by Johnson, C.J., Rykken, J., and Pederson, J.

Compensation Judge: Ronald E. Erickson.

 

                                                                      OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s denial of a claim for costs.  We reverse and remand for further findings.

 

BACKGROUND

 

In a Findings and Order served and filed August 16, 1999, Compensation Judge Ronald E. Erickson found Patricia A. Lamb, the employee, sustained an injury on February 4, 1998, in the nature of bilateral carpal syndrome for which Allina Health Systems, d/b/a United Hospital, the employer, was liable.  The compensation judge awarded the employee various periods of wage loss benefits, but denied wage loss benefits for the period May 7 through July 14, 1999, the date of the hearing before the compensation judge.  Thereafter, Raymond R. Peterson, the employee=s attorney, filed a second claim petition seeking temporary total disability benefits from and after July 15, 1999, as a result of the February 4, 1998 injury.  In its answer, the self-insured employer denied liability for the claimed benefits and reserved the right to require the employee submit to an independent medical examination.

 

On May 31, 2000, the Office of Administrative Hearings served an order scheduling a settlement conference for June 27, 2000, and scheduling a hearing on the claim petition on August 10, 2000.  Upon receipt of the order, Mr. Peterson scheduled the deposition of Dr. Allen Van Beek, the employee=s treating physician, for August 7, 2000.  Dr. Van Beek=s office policy for scheduling depositions required a $1,000.00 prepayment which was not refundable and was retained by the doctor even if the deposition was cancelled.  On June 6, 2000, Mr. Peterson sent an office check in the amount of $1,000.00 to Dr. Van Beek.  On June 7, 2000, the employee filed with the Office of Administrative Hearings a motion to allow the oral testimony of Dr. Van Beek, contending the doctor=s oral testimony was crucial to an accurate determination of the employee=s disability.  On June 15, 2000, the self-insured employer filed an objection to the employee=s motion for oral testimony, contending the testimony of Dr. Van Beek was not necessary as there were no medical issues in dispute.  The compensation judge did not rule on the employee=s motion.

 

In July 2000, the parties reached a settlement.  By letter dated July 6, 2000, Mr. Peterson wrote to Douglas Brown, the attorney for the self-insured employer, stating, in part:

 

I am assuming that your client is willing to reimburse us for taxable costs and subdivision 7.  I am enclosing with this letter a copy of our costs, which I would like to have included in the Stipulation for Settlement.  If you have any objection to these costs, please let me know promptly.

 

(Pet. Ex. 3.)^[1]  By letter dated July 11, 2000, Mr. Brown wrote: AIn response to your July 6, 2000 correspondence, my client is willing to reimburse you for taxable costs and disbursements.@  (Pet. Ex. 4.)  On July 31, 2000, Mr. Peterson cancelled the deposition of Dr. Van Beek.  In February 2001, the parties signed a stipulation for settlement, which provided the self-insured employer would reimburse Mr. Peterson for his Areasonable and taxable costs and disbursements upon being provided an itemization and documentation thereof.@  An Award on Stipulation was filed on February 8, 2001.

 

Thereafter, the parties were unable to resolve the employee=s claim for reimbursement of the $1,000.00 paid to Dr. Van Beek.  The employee then filed a Petition for Taxation of Actual and Necessary Disbursements, seeking payment of $1,000.00.  The self-insured employer filed an objection, and the case was heard before Judge Erickson on November 21, 2001.  In a Findings and Order filed January 15, 2002, the compensation judge found the deposition charge and the reservation policy of Dr. Van Beek were unreasonable and bore no relationship to a reasonable charge for the services provided.  The compensation judge used as a guideline Minn. R. 5219.0500, subp. 3.H.(5)(a),^[2] which provides that independent medical examiners may not charge a cancellation charge for a deposition cancelled six business days before the deposition.  The judge stated the underlying assumption of the rule was that most professionals could reschedule an hour of time given a weeks notice.  The judge concluded since Dr. Van Beek lost no time, his $1,000.00 charge was unreasonable.  The employee appeals the denial of her petition.

 

DECISION

 

Minn. Stat. ' 176.511 provides that a compensation judge Amay award the prevailing party reimbursement for actual and necessary disbursements.@  The cost of a deposition may be awarded to the prevailing party if the cost was necessary and reasonably related to the party=s successful prosecution of the case.  Ramirez v. Dee, Inc., 58 W.C.D. 437 (W.C.C.A. 1998), summarily aff=d (Minn. Aug. 27, 1998); Zable v. Pillsbury Co., slip op. (W.C.C.A. Feb. 22, 1991).  Similarly, a doctor=s reserve time or cancellation fee for a deposition may be awarded if the cost was necessary and reasonably related to a successful prosecution of the case.  Implicit in a determination of whether a cost was necessary and reasonably related to the successful prosecution of the case is the issue of whether the cost in question was reasonable.  Willis v. Arrowhead Nursing Home, 36 W.C.D. 605 (W.C.C.A. 1984).  The determination of whether a cost was necessary and reasonably related to the issues upon which the party prevailed is a fact question left to the discretion of the compensation judge.  Brochu v. U.S. Steel Corp., 27 W.C.D. 417 (W.C.C.A. 1974), aff=d on other grounds, 237 N.W.2d 833, 28 W.C.D. 270 (Minn. 1976).

 

Providers of medical services for injuries compensable under the workers= compensation act are subject to the fee schedule set out in Minn. R. 5221.0400.  Under that rule, no specific fee is established for medical testimony or reserve time for depositions.  In this case, the compensation judge used Minn. R. 5219.0500, subp. 3.H.(3), as a Aguideline@ to determine what constituted a reasonable fee for the doctor=s reserved time.  On appeal, the employee argues the compensation judge erred in considering this rule.  She contends the reasonableness of Dr. Van Beek=s charges should be viewed from the employee=s perspective, not from the perspective of an independent medical evaluator.  The employee also argues it was reasonable to pay Dr. Van Beek=s deposition charge with the expectation that his testimony would assist her to prevail on her claim.  She further argues that not awarding reimbursement of the treating doctor=s actual cancellation fee would have a chilling effect on employees= ability to present claims for benefits because of fear that the employee will be unable to recover those out-of-pocket expenses necessary to prove the claim.

 

We acknowledge that there is merit to the employee=s arguments.  Where an employee incurs a cost which is necessary and reasonably related to the successful prosecution of the case, the failure to allow a taxation of that cost will result in either the employee or the employee=s attorney bearing the expense.  As this court noted in Brochu v. U.S. Steel Corp., 27 W.C.D. 417 (W.C.C.A. 1974), the inability of the employee to obtain reimbursement for fees paid to expert witnesses might result in a reluctance of the employee or employee=s counsel to offer expert testimony in a case in which such testimony is reasonably required to prove the claim.  AThe employer might thus effectively defeat a claim for lack of medical support, which was otherwise compensable.@  Brochu at 425.  Ultimately, however, the issue is whether the compensation judge=s decision was an abuse of discretion.

 

In Cook v. Northwest Airlines, slip op. (W.C.C.A. Sept. 22, 2994), this court held that, in the absence of a specific fee schedule in Minn. R. 5221.2200, it was not an abuse of discretion for the compensation judge to use the amount set forth in Minn. R. 5219.0500, subp. 3.H.(3), as a guideline to evaluate the reasonableness of the charges made by the employee=s own doctor.  See also Eggen v. First Bank Sys., slip op. (W.C.C.A. Dec. 5, 1995).  In this case, however, the rule the judge used as a guideline does not apply.  Minn. R. 5219.0500, subp. 3.H.(5)(a), allows no fee for a deposition which is cancelled six business days before the deposition.  Dr. Van Beek=s deposition was scheduled for Monday, August 7, 2000, and was cancelled on Monday, July 31, 2000.  At most, the deposition was cancelled only five business days before August 7, 2000.  Accordingly, the rule relied upon by the compensation judge as a guideline is not applicable.  We therefore reverse the compensation judge=s denial of the employee=s petition and remand the case to the compensation judge for further findings.