When Can You Contest a Deposition Fee Under 5710?

The question has been raised as to when it is proper to pay the applicant’s attorney’s deposition fee request under Labor Code Section 5710 (b)(4). The defense attorney is getting paid for the time to take applicants deposition, but some question whether the applicant’s attorney should likewise be paid.

The Appeals Board recently ruled in two cases about the proper payment of deposition fees under Labor Code section 5710(b)(4). It seems some defendants felt that the applicant’s attorney should not receive a deposition fee if the injury was not AOE-COE. The Board ruled in four areas in these cases and remanded back to the WCAB for further action in accordance with this decision.  First, the Board ruled that you do not have to have a finding of industrial injury in order to collect a deposition fee. The Board indicated that the taking of a deposition is to investigate workers* compensation claims. They indicated the custom and practice was to allow this cost even when injury was not found. This was compared to medical-legal costs.

Secondly, the Board indicated that where the defendant raises a good faith allegation that there is a fraudulent or deceitful claim, the judge may defer until the case-in-chief is heard the issue of the 5710 fee. At the time of the main issues the judge will then determine the merits of the 5710 fee. The parties may negotiate settlement either separately or as part of a settlement of all issues the 5710 fee dispute at any time.

Thirdly, when there is a dispute the Board indicated how the dispute should be resolved, the Board stated that this dispute is analogous to a medical-legal cost dispute and should follow the procedures set forth in Otis v. City of Los Angeles. When the Judge receives the request for the 5710 fee the Judge may issue a notice of intention to allow the requested fee, unless good cause is shown to the contrary. If no objection is received, the judge may issue the requested fee order. If an objection is received from the defendant, but there is no request for a hearing, the judge may decide fee dispute on the existing record.

If defendant makes an objection on a good faith allegation of deceit or fraud and requests a hearing, the hearing shall be deferred until the main issues are heard. If the defendant objects on ground other than deceit or fraud, the judge can set the matter for a separate proceeding or on a short cause calendar.

Lastly, the Board indicated that there may be instances where restitution of a 5710 fee would be appropriate, but not in these cases. The Board did not indicate what circumstances restitution might be available in, or what proof that an error was made would have to be shown. Do you want to spend more in defense attorney costs fighting a 5710 fee than the fee itself?

Case: Mitchell V. Golden Eagle

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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