Welcome back from the weekend, dear readers!
Who is in the mood for a brief discussion on 5710 fees? Your humble blogger anticipates a resounding “we are” emanating from all his beloved readers in unison.
Labor Code section 5710 allows for the payment of an applicant’s representative at deposition of the applicant. Often enough, disputes arise as to what time is compensable related to the deposition as well as what the rate should be. For example, how much time is reasonable to prepare an applicant for deposition? An hour? What if an interpreter is necessary? What about the applicant attorney’s time preparing to prepare the deponent?
Then there’s the deposition itself – if applicant’s counsel and defense counsel discuss settlement for 30 minutes off the record, is that time included? How about after the deposition – should the AA be compensated for time spent going over the transcript with the applicant for the errata sheet?
The typical procedure after a deposition is to have AA send a demand for 5710 fees to defense counsel. Defendants will typically pay the bill in full, with or without an objection, or reduce the bill by a reasonable amount. To my wonderful colleagues representing injured workers all across the state, although I agree that every moment of your precious time really is priceless, all y’all need to get real with how much an hour of a workers’ comp attorney’s time is really worth. Spoiler alert: whatever you think it is, I assure you, it’s less.
The regulations provide the procedure for resolving these disputes, found in 8 CCR 10547, which provides the form and content necessary for said petition. Of interest, although there is some provision for hearing representatives attending deposition, section 10547 does not seem to provide for hearing representatives, but instead requires, in subsection (f), “the name of the attorney who attended the deposition along with the attorney’s State Bar number.”
Anywho, a recent panel decision, one of the last of 2024, touched on the issue of 5710 fees. In the case of Amezcua v. Milgard Windows Manufacturing, AA wanted to set the issue of $115 in disputed 5710 fees for trial. When the WCJ took the matter off calendar, AA filed a petition for reconsideration. The WCAB cited its En Banc decision of Ledezma v. Kareem Cart Commissary and Mfg. for the holding that a petition for reconsideration is NOT appropriate for an Order Taking Off Calendar. Not only was the petition for reconsideration denied, the petition was treated as one for removal and denied as well, as there was no evidence that deferring the issue until the trial in the case-in-chief would not cause substantial prejudice or irreparable harm to applicant (or applicant’s counsel).
The WCAB emphasized that seeking reconsideration from an order taking off calendar is sanctionable. The opinion then gave notice of intent a monetary sanction on applicant’s counsel absent written objection and good cause for the contrary.
So, what can we take away from this? The WCAB’s position has now been made abundantly clear that seeking reconsideration of an order taking the matter off calendar is sanctionable, and, perhaps, seeking attorney fees for responding to such a petition should be an option to explore. Of course, removal appears to be a non-sanctionable way to appeal so long as the nature of the irreparable harm can be reasonably articulated in the petition.
What’s more, especially if your humble blogger has any say in this matter, the amount paid in 5710 fees needs to be revisited and brought down to reality – that is, it should be brought into line with what the market actually pays for attorney time and experience.
