Perry v. Ltv Steel Co.

*672 David T. Matia, Chief Justice. Defendant-appellant, LTV Steel Co., appeals from a judgment rendered by the Cuyahoga County Court of Common Pleas which allowed the plaintiff-appellee, Bobby Lee Perry, to participate in the Worker’s Compensation Fund for injuries which were sustained while in the course and scope of employment. The appellant’s appeal involves the issues of the trial court’s denial of the appellant’s motion for a directed verdict and motion to dismiss, the trial court’s refusal to allow a trial before a jury, the award of attorney fees, and the taxation as court costs of deposition expenses and expert witness fees. The appellant’s appeal is well taken in part. I. THE FACTS A. THE ACCIDENT SUFFERED BY THE APPELLEE On March 31, 1986, the appellee was employed by the appellant as a “tar chaser” in a coke processing steel plant which was located at Independence Road, Cleveland, Ohio. The appellee’s responsibilities as a tar chaser involved the clearing of tar from coke ovens, which necessitated the traversal of five flights of stairs. While performing his duties, the appellee caught his shoe on a Larry-car rail which was located at ground level. As a result, the appellee fell to the ground but was able to break his fall by extending his arms. The appellee immediately experienced pain in his back and dizziness. Following the fall, the appellant attempted to climb a flight of stairs, at which time he completely lost consciousness and fell a second time to the bottom of the stair landing. Upon discovery by a supervisor, the appellee was transported to St. Vincent Charity Hospital and treated for pain in his upper back, lower back and right leg. B. THE APPELLEE IS ALLOWED TO PARTICIPATE IN THE WORKERS’ COMPENSATION FUND On June 16, 1987, the Industrial Commission of Ohio issued an order which affirmed the finding and order of the Cleveland Regional Board of Review to allow the appellee to participate in the Workers’ Compensation Fund for injuries sustained while in the course and scope of employment. On August 21, 1987, the appellant appealed the order of the Industrial Commission of Ohio to the Cuyahoga County Court of Common Pleas pursuant to R.C. 4123.519. C. NONJURY TRIAL OF APPELLEE’S RIGHT TO PARTICIPATE IN THE WORKERS’ COMPENSATION FUND On November 13,1989, a nonjury trial was commenced with regard to the right of the appellee to participate in the Workers’ Compensation Fund. On May 24, *673 1990, the trial court rendered a judgment which allowed the appellee to participate in the Workers’ Compensation Fund. On June 6, 1990, the appellant filed a request for the trial court to issue findings of fact and conclusions of law as provided for by Civ.R. 52. On November 27, 1990, the trial court journalized a judgment entry which approved and adopted the proposed findings of fact and conclusions of law submitted by the appellee. D. THE APPELLANT’S APPEAL On December 13, 1990, the appellant filed a notice of appeal. II. THE FIRST ASSIGNMENT OF ERROR The appellant’s initial assignment of error is that: “The trial court committed error prejudicial to defendant-appellant, LTV Steel Company, by overruling said defendant’s motion for dismissal upon the conclusion of plaintiffs evidence because plaintiff failed to present any expert medical testimony upon the determinative medical-fact issue of whether a proximate causal relationship existed between (1) plaintiffs non-injurious tripping over a ‘Larry-car’ rail, and (2) his subsequent loss of consciousness which caused him to fall down a flight of stairs.” A. ISSUE RAISED: FAILURE OF APPELLEE TO ESTABLISH PROXIMATE CAUSE OF HIS INJURIES REQUIRED GRANTING OF APPELLANT’S MOTION TO DISMISS The appellant, through its first assignment of error, argues that the trial court erred by denying the appellant’s motion to dismiss, which was made at the close of the appellee’s case-in-chief. Specifically, the appellant argues that the failure of the appellee to present expert medical testimony at trial with regard to the issue of whether a proximate causal relationship existed between the appellee’s initial fall over the Larry-car rail and the appellee’s subsequent loss of consciousness and second fall required the granting of the motion to dismiss. The appellant’s first assignment of error is not well taken. B. THE TESTIMONY ADDUCED AT TRIAL WITH REGARD TO PROXIMATE CAUSE In the case sub judice, testimony with regard to the proximate cause of the appellee’s injuries was adduced solely from the appellee. The appellee, through his testimony, described the events which culminated in the second fall down a flight of stairs: *674 “Q. Now you described to the Court that you were crossing a Larry car track? “A. Yes. “Q. Is this something like a railroad track? “A. Exactly. “Q. What happened? “A. The right shoe of the metatarsal got hooked and I caught myself with my hands. “Upon doing that, I collected myself up on my feet, walked around for a minute or two because I was really in a lot of pain and dizzy. I started to go ahead and proceed to walk it off. “I went up this little landing here, proceeded up this stairwell to my other part of my job. “I remember, maybe halfway up, I got real lightheaded and was in a lot of pain and, at that point, from there, all I know is I was at the bottom of the landing with my boss screaming in my face after that.” Thus, the appellee, through his testimony, established that the second fall down the flight of steps was the result of a continuing series of events which occurred immediately after the initial trip and fall over a Larry-car track. The appellant, however, argues that the testimony of the appellee, absent additional medical testimony from an expert witness, was not sufficient to establish a proximate causal relationship between the appellee’s initial trip and fall over the Larry-car rail and the appellee’s subsequent loss of consciousness and second fall down a flight of steps. C. TESTIMONY FROM A MEDICAL EXPERT AS TO PROXIMATE CAUSE IS NOT ALWAYS NECESSARY Testimony from a medical expert is not always necessary to demonstrate the proximate cause of an employee’s injuries. The Supreme Court of Ohio, in Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, 213, 46 O.O. 93, 97, 101 N.E.2d 897, 901, held that: “There are two types of industrial injury cases, one in which the testimony of lay witnesses does have probative value in establishing the probability of proximate causal relationship between accident and resulting injury, and the other where the testimony of lay witnesses is without probative value to establish a proximate causal relationship between the injury and the result claimed and where medical testimony is absolutely essential to prove such relationship. Each case must be decided upon its own facts in reference to this question.” *675 In addition, the Supreme Court of Ohio, in White Motor Corp. v. Moore (1976), 48 Ohio St.2d 156, 2 O.O.3d 338, 357 N.E.2d 1069, held at paragraph two of the syllabus that: “Where the issue of causal connection between an injury and the specific subsequent physical disability involves questions which are matters of common knowledge, medical testimony is not necessary in order to submit the case to the jury.” Finally, the Supreme Court of Ohio, in White, opined that: “This court is of the opinion that the instant claim falls within the language expressed by Stewart, J., in Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, at page 213 [46 O.O. 93, at page 96, 101 N.E.2d 897, at page 901], cited by both sides. Judge Stewart, in delineating under what circumstances expert medical testimony is necessary to submit a cause to a jury, stated as follows: “The Stacey case involved a condition of bilateral cataracts alleged to have resulted from a small particle lodging in one eye. “Succinctly stated, both cases relied on by appellant involved rather complicated medical problems, and were cases in which the testimony of medical witnesses was or would be preferred in order to better equip the jury for its determination. Such testimony would hardly seem necessary in a medical problem involving the presence or dimension of a bruise. “As a general rule of law involving complex medical problems, medical evidence is necessary to establish a direct or proximate causal relationship between an industrial accident and the resulting injury. See Fox v. Indus. Comm. (1955), 162 Ohio St. 569 [55 O.O. 472, 125 N.E.2d 1]. However, as noted in the Stacey case, supra, there are two types of industrial injury cases. The instant case involves a ‘bruise above the left patella’ allegedly caused by a truck frame which fell from a dolly and struck the claimant with such force that he fell and was pinned beneath it. We submit that there is little if any medical complexity about this type of accident or injury. Further, to argue that there is a dispute as to the occurrence of the injury itself is a matter of credibility of witnesses, not scientific inquiry.” (Emphasis added.) Id., 48 Ohio St.2d at 159-160, 2 O.O.3d at 340, 357 N.E.2d at 1071-1072. D. TESTIMONY OF MEDICAL EXPERT WAS NOT REQUIRED IN INSTANT APPEAL In the present appeal, the testimony of a medical expert was not required to establish the probability of a proximate causal relationship between the appellee’s original trip and fall over the Larry-car track and the appellee’s *676 subsequent loss of consciousness and resulting fall down a flight of steps. The appellee’s loss of consciousness and second fall involved a matter within common knowledge of the ordinary person and did not require complex medical expert testimony. A pérson who trips, falls, becomes groggy and suffers immediate pain certainly can experience a sudden loss of consciousness. Clearly, the appellee demonstrated by a preponderance of the evidence that his injury arose out of and was received while in the course of his employment. Additionally, the appellee through his own testimony demonstrated a direct or proximate relationship which existed between his injury and his harm or disability. Thus, medical expert testimony was not necessary. Darnell v. Eastman (1970), 23 Ohio St.2d 13, 52 O.O.2d 76, 261 N.E.2d 114; Hickman v. Ford Motor Co. (1977), 52 Ohio App.2d 327, 6 O.O.3d 365, 370 N.E.2d 494. Therefore, the trial court did not err as a result of denying the appellant’s motion for a directed verdict and motion to dismiss, and the appellant’s initial assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant’s second assignment of error is that: “The trial court committed error prejudicial to defendant-appellant, LTV Steel Company, by denying said defendant its constitutional and statutory right to a trial by jury despite defendant’s having made demand therefor in accordance with Civil Rule 38(B).” A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED APPELLANT’S RIGHT TO TRIAL BY JURY The appellant, through its second assignment of error, argues that it was prejudiced by the refusal of the trial court to grant it a trial before a jury. Specifically, the appellant argues that it was denied both a constitutional and a statutory right to a trial by jury as a result of the trial court’s failure to grant the appellant’s request for a jury trial as made pursuant to Civ.R. 38. The appellant’s second assignment of error is well taken. B. THE DEMAND FOR A JURY TRIAL AND CIV.R. 38(B) Civ.R. 38(B), which deals with a party’s demand for a jury trial, provides that: “(B) Demand. Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand shall be in writing and may be indorsed upon a pleading of the party. If the demand is *677 indorsed upon a pleading the caption of the pleading shall state ‘jury demand endorsed hereon.’ In an action for appropriation of a right of way brought by a corporation pursuant to Article XIII, Section 5, of the Ohio Constitution, the jury shall be composed of twelve members unless the demand specifies a lesser number; and in the event of timely demand by more than one party in such action the jury shall be composed of the greater number not to exceed twelve. In all other civil actions the jury shall be composed of eight members unless the demand specifies a lesser number; and in the event of timely demand by more than one party in such actions the jury shall be composed of the greater number not to exceed eight.” Thus, a valid request for a jury trial is made by a party pursuant to Civ.R. 38(B) upon the basis of the following requirements: (1) the jury demand shall be in writing and may be included in a pleading; (2) the jury demand, to be timely, must be made any time after the commencement of the action but not later than fourteen days after the service of the last pleading; and (3) if the jury demand is included in a pleading, the caption of the pleading shall include the phrase “Jury Demand Endorsed Hereon.” C. APPELLANT’S REQUEST FOR JURY TRIAL WAS TECHNICALLY DEFICIENT The record upon review demonstrates that the appellant met the first two requirements of Civ.R. 38: (1) the appellant’s answer, as filed on October 31, 1989, contained a written demand for a jury trial; and (2) the jury demand in the answer was timely. The appellant’s answer, however, failed to contain a caption which stated “Jury Demand Endorsed Hereon.” The failure of the appellant’s answer to contain the jury demand in the caption, however, was not prejudicial to the appellee and should not have resulted in the denial of a jury trial. D. TECHNICAL DEFICIENCY SHOULD NOT RESULT IN DENIAL OF RIGHT TO JURY TRIAL The Court of Appeals for Franklin County has addressed the issue of the failure to include in the caption of a pleading the phrase “Jury Demand Endorsed Hereon” and has held that: “Plaintiff contends that Key Corporation did not properly file its jury trial demand and, thus, waived its right to a jury trial. The claimed defects in the jury trial demand were twofold: (1) that there was a failure to comply with Civ.R. 38(B), which requires that, ‘ * * * [i]f the demand is endorsed upon a pleading the caption of the pleading shall state “jury demand endorsed hereon” * * * ’; and, (2) that the answer and counterclaim, containing the endorsement of the jury demand, were not filed with the court until 14 days after service upon plaintiff, in *678 violation of Civ.R. 5(D) which requires filing with the court within three days after service. “Plaintiffs objections to the manner in which the jury trial was demanded are not sufficient to deny Key Corporation its right to a jury. The jury trial demand endorsed upon Key Corporation’s answer and counterclaim appears in the place where it is generally contained and is quite clear and readily ascertainable. The requirement that the phrase ‘jury demand endorsed hereon’ appear in the caption of the pleading in the July 1,1976 amendment of Civ.R. 38(B) was to help assure that a jury demand endorsement not be overlooked as the rule had not previously specified where the endorsement was to be placed upon the pleading. See Staff Note to Civ.R. 38(B). In this case, there was ample notice before the scheduled trial that a jury had been demanded so that the failure to place the notice of the jury demand in the caption was not prejudicial to the opposing party or to the court in its administrative practice. Hence, that technical deficiency should not be held to deny Key Corporation its substantive and constitutional right to trial by jury.” Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App.3d 101, at 103, 1 OBR 403, at 405-406, 439 N.E.2d 915, at 918. E. FAILURE OF PETITION TO INCLUDE CAPTION OF “JURY DEMAND ENDORSED HEREON” SHOULD NOT PREVENT A JURY TRIAL This court finds the holding of Carl Sectional Home, Inc. v. Key Corp. to be most persuasive and thus adopts the reasoning espoused by the Court of Appeals for Franklin County with regard to a request for a jury trial per Civ.R. 38(B). A party to a civil cause of action presents a viable request for a jury trial when (1) the jury demand, which can be contained in a pleading or other communication, is made in writing; and (2) the jury demand is made no later than fourteen days after service of the last pleading. The failure of a pleading to contain the caption “Jury Demand Endorsed Hereon,” although technically rendering the demand defective, cannot operate to deprive a party of the substantive and constitutional right to trial by jury where no prejudice befalls the opposing party. Thus, the trial court in the present appeal erred as a result of failing to grant the appellant a trial by jury. The appellant’s request for a jury trial was in writing and was timely. It should also be noted that the denial of the appellant’s substantive and constitutional right to trial by jury was not harmless error, regardless of trial before the bench. The appellant’s second assignment of error is well taken, and requires reversal of the judgment of the trial court and retrial before a jury. *679 IV. THE THIRD ASSIGNMENT OF ERROR The appellant’s third assignment of error is that: “The trial court abused its discretion by accepting the unsworn statement of plaintiffs counsel as evidence of the amount of time and effort expended by said counsel in representing plaintiff when considering plaintiffs motion for an award of attorney fees, and committed legal error prejudicial to defendant-appellant, LTV Steel Company, by granting, without a hearing thereon, an attorney fee award of $2,500.00, based upon evidence which failed to meet the standard imposed by DR 2-106(B) of the Code of Professional Responsibility.” A. ISSUE RAISED: TRIAL COURT ERRED AS A RESULT OF FAILING TO CONDUCT A HEARING PRIOR TO THE AWARD OF ATTORNEY FEES The appellant, through its third assignment of error, argues that the trial court erred as a result of awarding the appellee attorney fees in the amount of $2,500. Specifically, the appellant argues that the failure of the trial court to conduct a hearing in order to determine the time and effort expended by appellee’s counsel resulted in prejudicial error. The appellant’s third assignment of error is well taken. B. R.C. 4123.519(E) AND THE AWARD OF ATTORNEY FEES R.C. 4123.519(E), which allows the award of attorney fees to a claimant, provides that: “(E) The cost of any legal proceedings authorized by this section, including an attorney’s fee to the claimant’s attorney to be fixed by the trial judge, based upon the effort expended, 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. The attorney’s fee shall not exceed twenty-five hundred dollars.” C. METHOD BY WHICH ATTORNEY FEES ARE TO BE AWARDED TO CLAIMANT The award of attorney fees to a claimant by a trial court is specifically authorized by R.C. 4123.519(E). The mechanism which is to be used to make an award of attorney fees, however, is not provided for in R.C. 4123.519(E). In fact, the most recent decision rendered by the Supreme Court of Ohio with regard to R.C. 4123.519(E) fails to delineate the mechanism to determine the amount of *680 attorney fees which can be awarded to a successful workers’ compensation claimant. See Ginnis v. Atlas Painting & Sheeting Co. (1992), 63 Ohio St.3d 754, 591 N.E.2d 694. D. A HEARING SHOULD BE HELD PRIOR TO THE AWARD OF ATTORNEY FEES ' This court has tangentially addressed the issue of the need for a trial court to conduct a hearing prior to the award of attorney fees in a workers’ compensation case: “R.C. 4123.519 aptly serves that public policy intended by the legislature in assessing attorney fees as an incident of a successful claimant’s recovery. The statute prescribes a maximum ceiling for such an award. Appellant does not contend that the court made an award in excess of the statutory limit. “However, the employer claims that the award is improper because no evidence was presented on the attorney’s charge to his client; nor as to the nature and extent of his services. “An award of attorneys fees must be supported by evidence in the record. See, Swanson v. Swanson (1976), 48 Ohio App.2d 85 [2 O.O.3d 65, 355 N.E.2d 894]. In view of the fact that there is nothing in the record before us which reflects the basis of the court’s award, we are unable to conclude whether the amount awarded is reasonable. “For these reasons, the assignment of error is well taken and the case is remanded for an evidentiary hearing on the nature and extent of legal services provided to appellee. The court, in considering these fees, shall not be bound to the amount originally ordered.” Pahl v. First Union Mgt., Inc. (Nov. 1, 1984), Cuyahoga App. No. 48026, unreported, at 3, 1984 WL 3543. This court, in Pahl, did not specifically require an evidentiary hearing with regard to every workers’ compensation case where an award of attorney fees is contemplated by the trial court. The need for an evidentiary hearing, however, is self-evident in light of the increasing complexity of the majority of workers’ compensation cases which are brought at the trial level. R.C. 4123.519(E) provides that an award of attorney fees is to be based upon the “time and effort expended” by a claimant’s counsel. The calculation of such an award should not merely involve multiplication of hours expended by counsel times a base rate. To the contrary, the trial court should consider additional factors such as the complexity of the issues involved; the skill required; the attorney’s experience, ability and reputation; the amount involved and benefit resulting to the client from services; and the customary fee charged by other members of the bar. Cf. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 2 O.O.3d 65, 355 N.E.2d 894; *681 Merrill, Lynch, Pierce, Fenner & Smith v. Stark (Aug. 29,1991), Cuyahoga App. No. 58806, unreported, 1991 WL 185723. Thus, this court holds that an evidentiary hearing is mandated prior to a trial court’s award of attorney fees pursuant to R.C. 4123.519(E). Herein, the trial court did not conduct an evidentiary hearing prior to the award of attorney fees. In addition, the record demonstrates that the trial court’s award of attorney fees was based upon an unsworn itemized list of the time expended by appellee’s counsel. Such an unsworn itemized list was insufficient to calculate the award of attorney fees. Therefore, the appellant’s third assignment of error is well taken. V. THE FOURTH ASSIGNMENT OF ERROR The appellant’s fourth assignment of error is that: “The trial court committed error prejudicial to defendant-appellant, LTV Steel Company, by granting plaintiffs motion to tax deposition costs and expert witness fees as court costs where the testimony of the expert witness was not required, nor necessary, to the issue in dispute.” A. ISSUE RAISED: TRIAL COURT IMPROPERLY TAXED AS COSTS DEPOSITION EXPENSES AND EXPERT’S FEE The appellant, through its fourth, assignment of error, argues that the trial court erred by granting the appellee’s motion to tax as court costs both deposition expenses and expert witness fees. Specifically, the appellant argues that deposition expenses and the witness fee of Michael J. Joyce, M.D., the appellee’s expert, were not necessary to establish the appellee’s case-in-chief, thus preventing the taxation of such expenses. The appellant’s fourth assignment of error is not well taken. B. ITEMS WHICH ARE TAXABLE AS COSTS The Supreme Court of Ohio, with regard to R.C. 4123.519 and the taxation of costs, has established that: “Pursuant to R.C. 4123.519, a common pleas court may tax to the employer the costs of an expert’s witness fee preparing and giving his deposition as a ‘cost of any legal proceedings authorized by this section.’ ” Moore v. Gen. Motors Corp. (1985), 18 Ohio St.3d 259, 18 OBR 314, 480 N.E.2d 1101, syllabus. In addition, this court has consistently held that deposition costs and expert witness fees are taxable as court costs pursuant to R.C. 4123.519(C) and (E). Johnson v. Univ. Hospitals of Cleveland (June 25, 1992), Cuyahoga App. No. *682 60777, unreported, 1992 WL 146835; Trotter v. Euclid Manor Nursing Home (Apr. 2, 1992), Cuyahoga App. No. 60325, unreported, 1992 WL 67093; Brooks v. Brost Foundry Co. (May 2, 1991), Cuyahoga App. No. 58065, unreported, 1991 WL 69341; Heaton v. Gen. Motors Corp. (Feb. 27, 1986), Cuyahoga App. No. 50202, unreported, 1986 WL 2668. C. TRIAL COURT DID NOT ERR IN TAXING DEPOSITION EXPENSES AND EXPERT’S FEE AND COSTS A review of the record demonstrates that the deposition testimony of Dr. Joyce was essential to the presentation of the appellee’s case and was of great benefit to the trier of fact. Thus, the trial court did not err by taxing as costs the deposition expense and expert witness fee associated with the testimony of Dr. Joyce. The appellant’s fourth assignment of error is not well taken. It should be noted, however, that the reversal of the trial court’s judgment, as made through the appellant’s second assignment of error, results in the vacation of the trial court’s granting of the appellee’s motion to tax as costs. The judgment of the trial court, which allowed the appellee to participate in the Workers’ Compensation Fund, is reversed and the matter is remanded for a jury trial. In addition, the trial court’s award of attorney fees and costs is vacated. Judgment reversed and cause remanded. Dyke, J., concurs in judgment only. Krupansky, J., dissents.