WCDefenseCA

Alright, dear readers, your humble blogger is going to give you some free advice.  Now, before I do, I shall remind you of two things: things are typically worth exactly what you pay for them (which calls into question the merits of this blog) and, your humble blogger rarely gives advice (which is odd, given his profession as one of the more opinionated defense attorneys in our beloved swamp).

Here it goes: Watch The Office (American version).  If you have watched it, watch it again.  It is awesome.

In one scene, one of the characters, Jim, invites his coworkers to his home for a party, and he invites another character, Dwight, in particular because Jim’s roommate did not believe Dwight existed, based on the stories Jim related to him.  So too with workers’ compensation.  When I relate the battles we fight to those blessedly ignorant of our daily struggles, I am often accused of making things up. 

“Yes, you can have a cumulative trauma that magically appears right before you retire.”

“Yes, you can be permanently, totally disabled and then magically recover five years after you got hurt, especially once the big checks clear.”

“Yes, sometimes we pay more for utilization review than the cost of the treatment we are reviewing.”

So, with all that in mind, let’s take a look at Li v. Kaiser Permanente, a recent panel decision.  The case had to do with an interpreter seeking costs for deposition preparation of the injured worker.  The defendant noticed applicant’s deposition and advised that it would provide interpreting services for both the preparation and deposition.  The WCJ ultimately denied the interpreter’s petition for costs related to the deposition preparation.

The WCAB panel denied reconsideration.  Citing Labor Code section 5811(b)(1) and Contreras v. Gibson Farms, the WCAB held that it is the party producing the witness that should provide the interpreter, and since the defendant noticed the deposition, the defendant should provide the interpreter.  

The reasoning highlighted that the burden was, of course, on the interpreter: “Cost petitioner has failed to provide any evidence why it was reasonable and necessary to use an interpreter chosen by applicant instead of defendant.  There is no evidence that defendant was unable or unwilling to provide an interpreter for deposition preparation.  There are no objections in the record, if any were in fact made, by applicant to the use of an interpreter provided by defendant.”

So, what can we take from the Li case?  First off, in order for an applicant attorney to get an interpreter paid by the defense for deposition preparation, the applicant attorney needs to make some sort of timely objection when the defense provides notice that it intends to select the interpreter.  Second, this is a friendly reminder that cost petitioners, like interpreters, have the burden of showing that their services were actually rendered and actually necessary.

Finally, we should all be reminded that not all of our efforts will be to turn away million-dollar exposure cases or reducing permanent total disability claims to take-nothings.  Often enough, our time is spent with smaller matter to make sure those matters don’t become big ones.