March 27th. The Kansas Supreme Court has issued its opinion in Higgins v. Abilene Machine Inc (No. 97,649) a workers compensation case that dealt with the question of the recoverability of expert witness fees. In a 6-1 decision, written by Justice Beier, the court ruled that expert witness fees were not recoverable as costs in post-award medical benefit claims. Justice Johnson dissented. He would award the costs, citing public policy reasons behind the act which authorized the payment of attorney fees and certain other costs.
The background to the case was straightforward. John Higgins injured his back while working for Abile Machine Inc, and received workmans comp for the injury and two post-award medical treatments (i.e. further medical attention necessitated by the original incident, where the treatment happened after the settlement of the original case). In the second of these, he sought reimbursement of approximately $1000 in expert witness fees for the testimony of two doctors. He cited the law which provides for this which lists ‘witness fees’ as one of the allowable costs that can be awarded to the claimant, and which also states that its list of allowed costs is non-exclusive.
The Administrative Law Judge (ALJ) denied the application, ruling that he could not award expert witness fees as costs. The Workers Compensation Board affirmed the ALJ (with one dissent) and the Court of Appeals affirmed the Board with one dissent. Now the Kansas Supreme Court affirms the Court of Appeals, with one dissent.
The ruling of the Court turns on the legislative intent in writing the clause at issue. Justice Beier notes that the plain wording of the statute (“witness fees”) seems to imply that expert witness fees would be covered, but goes on to state that when read in the light of the act as a whole it does not, since the legislature separately defined ‘witness fees’ as having the same meaning as under civil proceedings, where expert witness fees are excluded. The Court also rejected the notion that expert witness fees should be incorporated at the discretion of the ALJ (thanks to the list of costs being non-exclusive) because expert witness fees are sizeable and more akin to attorneys fees which while award-able as costs are treated separately in the act. The Court rules that had the legislature intended to make expert witness fees able to be awarded as costs it would have said so.
Justice Johnson dissented. He agreed with the majority that the court should not “be seduced by emotionally compelling arguments, in contravention of a strict application of the law” but at the same time would have held that the public policy argument behind the act should be used to construe its meaning. The public policy behind awarding attorneys fees and (some) costs is to lower the financial bar to entry, so that justified claimants are not deterred from seeking compensation. The other purpose is to encourage those who have a liability under workmans comp to honor it. Justice Johnson argues that both of these would be served by the award of expert witness fees in cases where the employer was not consciously trying to comply with the law.