40.15.16 Deposition Costs

Where the employer or its insurance carrier requests a deposition to be taken of an injured employee, or any person claiming benefits as a dependent of an injured employee, the deponent is entitled to receive, in addition to all other benefits:

1. All reasonable expenses of transportation, meals and lodging incident to such deposition.

2. Reimbursement for any loss of wages incurred during attendance at such deposition.

3. A free copy of the transcript of the deposition.

4. A reasonable allowance for attorney's fees for the deponent, if represented by an attorney. Such fee is discretionary with and, if allowed, must be set by the Appeals Board, but is payable by the employer or his or her insurer. Lab. Code Sec. 5710. (As a practical matter, the fee is normally paid without a request for approval by the Board. If the fee is not paid, then a petition must be filed requesting an order allowing a reasonable fee.)

Customarily, an attorney whether retained by an injured worker or by an insurer/employer client, bills for services rendered in connection with the deposition.

An applicant's attorney generally bills for time spent reviewing the legal file prior to the deposition, time spent preparing the client for the deposition, travel time involved in traveling to and from the deposition location if outside of counsel's office, time spent at the deposition, as well as time devoted to reviewing the deposition transcript with his or her client.

A defense attorney generally bills for time spent reviewing the legal file prior to deposition, time spent traveling to and from the deposition location if outside attorney's office, time spent at the deposition, as well as time spent reviewing the deposition transcript.

5. Interpreter fees. See Labor Code section 5710.

Labor Code section 5710 permitting the above items plus the rights to interpreter fees added to the law as amended, effective January 1, 2013, provides:

(a) The appeals board, a workers' compensation judge, or any party to the action or proceeding, may, in any investigation or hearing before the appeals board, cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure. To that end the attendance of witnesses and the production of records may be required. Depositions may be taken outside the state before any officer authorized to administer oaths. The appeals board or a workers' compensation judge in any proceeding before the appeals board may cause evidence to be taken in other jurisdictions before the agency authorized to hear workers' compensation matters in those other jurisdictions.

(b) If the employer or insurance carrier requests a deposition to be taken of an injured employee, or any person claiming benefits as a dependent of an injured employee, the deponent is entitled to receive in addition to all other benefits:

(1) All reasonable expenses of transportation, meals, and lodging incident to the deposition.

(2) Reimbursement for any loss of wages incurred during attendance at the deposition.

(3) One copy of the transcript of the deposition, without cost.

(4) A reasonable allowance for attorney's fees for the deponent, if represented by an attorney licensed by the State Bar of this state. The fee shall be discretionary with, and, if allowed, shall be set by, the appeals board, but shall be paid by the employer or his or her insurer.

(5)  If interpretation services are required because the injured employee or deponent does not proficiently speak or understand the English language, upon a request from either, the employer shall pay for the services of a language interpreter certified or deemed certified pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code. The fee to be paid by the employer shall be in accordance with the fee schedule adopted by the administrative director and shall include any other deposition-related events as permitted by the administrative director.

See section 40.14.48 of this book for full discussion of this case. See also Labor Code section 5811 amended, effective January 1, 2013, provides:

(a) No fees shall be charged by the clerk of any court for the performance of any official service required by this division, except for the docketing of awards as judgments and for certified copies of transcripts thereof. In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.

(b) (1) It shall be the responsibility of any party producing a witness requiring an interpreter to arrange for the presence of a qualified interpreter.

(2) A qualified interpreter is a language interpreter who is certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code. The duty of an interpreter is to accurately and impartially translate oral communications and transliterate written materials, and not to act as an agent or advocate. An interpreter shall not disclose to any person who is not an immediate participant in the communications the content of the conversations or documents that the interpreter has interpreted or transliterated unless the disclosure is compelled by court order. An attempt by any party or attorney to obtain disclosure is a bad faith tactic that is subject to Section 5813.

Interpreter fees that are reasonably, actually, and necessarily incurred shall be paid by the employer under this section, provided they are in accordance with the fee schedule adopted by the administrative director.

A qualified interpreter may render services during the following:

(A) A deposition.

(B) An appeals board hearing.

(C) A medical treatment appointment or medical-legal examination.

(D) During those settings which the administrative director determines are reasonably necessary to ascertain the validity or extent of injury to an employee who does not proficiently speak or understand the English language.

Deposition attorney fees under Labor Code section 5710 are clearly discretionary with the trial Judge.

A defendant cannot recover costs for attending a deposition. (Ryan v. W.C.A.B. (2000) 65 Cal.Comp.Cases 975 (Writ Denied).)

If an industrial injury claim is not fraudulent or deceitfully brought the deposition fee is allowable under Labor Code section 5710(b)(4) even if the claim is found to be not work related. See Mitchell v. Golden Eagle Insurance and Marmolego v. Neptune Foods et al., (1995) 60 Cal.Comp.Cases 205 (Unpublished).

In citing instances of what may constitute deceitful or fraudulent claims the Board cited Reynolds v. W.C.A.B. (1989) 54 Cal.Comp.Cases 360 (Writ Denied) (applicant found not to be credible); Guerrero v. General Motors Corp. (1967) 32 Cal.Comp.Cases 203 (Panel Decision)(applicant gave false medical history); and Penny v. W.C.A.B. (1983) 48 Cal.Comp.Cases 468 (Writ Denied) (applicant gave false history).

Commenting on the procedure to follow, in requesting such fees, the Board stated, in part:

As we indicated above, the proper procedures for allowing or disallowing a deposition attorney's fee pursuant to Labor Code section 5710(b)(4) are analogous to the procedures for medical-legal costs as set forth in Otis v. City of Los Angeles (1980) (En Banc) 45 Cal. Comp. Cases 1132, 1146. Upon receipt of a request for an order allowing a deposition attorney's fee under Labor Code section 5710(b)(4), the WCJ 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 WCJ may issue the requested order. If there are no grounds for deferral of the issue as set forth in this opinion, the WCJ may determine whether to allow or disallow the requested attorney's fee on the record. In Otis, the Board recognized that many local offices prefer to use a self-destroying order allowing the defendant time to object and to obtain a hearing, if necessary. Id. at pp. 1146-47. While we note that self-destruct orders are often misunderstood and do not always accomplish the objective intended, we are satisfied that such orders satisfy due process, and may be used where the parties are put on proper notice that Labor Code section 5710(b)(4) deposition attorney's fees are being allowed or disallowed and the parties clearly have an opportunity to object before the issuance of the order.

If a hearing on Labor Code section 5710(b)(4) deposition attorney's fee is requested, and the defendant has made a good faith showing that the employee has deceitfully or fraudulently brought a claim for workers compensation benefits the disputed deposition attorney's fee issue shall be deferred until the hearing on the issues raised in the case-in-chief. A request for hearing on any other disputed deposition attorney's fee issue not involving a showing pursuant to paragraph (2) (meaning fraud) may be set for a separate proceeding or on a short cause calendar, depending on the local offices' ability to furnish such proceedings without detriment to setting or conducting hearings on disputed compensation issues involving injured employees....

Prior to January 1, 1980, a reasonable attorney's fee was allowed for the deposition only if the deposition of the employee was taken at the request of the employer. As of the aforementioned date, the law was changed so that a reasonable attorney fee may now be awarded not only for the taking of the injured employee's deposition, but also if the deposition of any person claiming benefits as a dependent of an injured employee, such as a spouse, a minor or some other dependent is taken at the request of the employer.

If there is a finding that the alleged injured employee is not an employee under the workers' compensation law, attorney fees and trial expenses may not be awarded as the Code section granting such fees and costs specifically refers to an injured "employee." (Zarate v. Est. of Lilly Corwan (1978) 43 Cal.Comp.Cases 906 (En Banc); Zarate v. W.C.A.B. (1979) 44 Cal.Comp.Cases 1128 (Published).) Likewise, an attorney was denied a deposition fee incurred when his client's deposition was taken at the request of the employer when the trial judge found the applicant's case had no merit because of the applicant's lack of credibility. (Reynolds v. W.C.A.B. (1989) 54 Cal.Comp.Cases 360 (Writ Denied).)

If the employee or his or her attorney incurs costs for the taking of depositions at the employee 's request, the costs should be claimed as reimbursable costs against the employer or its insurance carrier under Labor Code section 5811 at the time of the hearing. If the costs are denied under section 5811, the attorney may have a lien against the employee's award for the cost of the deposition.

In Hawley v. W.C.A.B. (1995) 60 Cal.Comp.Cases 768 (Writ Denied), the defendant was not liable for deposition fees where false information provided by the deceased and by applicant with regard to the deceased's drinking history necessitated the taking of the deposition.

In Sakamoto v. W.C.A.B. (1990) 55 Cal.Comp.Cases 27 (Writ Denied), the Board refused to charge the costs of a deposition of a lay witness and duplicate medical-legal report costs to an employer. The Board imposed the costs against the compensation awarded rather than the employer, even though the witness's testimony was necessary to support the claim. The Board noted that although it had the power under Labor Code section 5811 to allow costs as between the parties, costs for depositions and subpoena fees for lay witnesses are not uniformly allowed against employers. The cost for the second medical report was not allowed because the employer had already paid for a similar report.

In Masco Building Products v. W.C.A.B. (Godinez) (1995) 60 Cal.Comp.Cases 348 (Writ Denied), the Board upheld a Judge's finding that he did not have authority to impose sanctions under Labor Code section 5710 for failure of a lien claimant to appear and produce documents at a noticed and scheduled deposition.

The Judge observed that Labor Code section 5710 has no provision for sanctions and that discovery sanctions under the Code of Civil Procedure are not applicable to workers' compensation proceedings until the Board enacts its own rules, citing Moran v. Bradford Building (1992) 57 Cal.Comp.Cases 273 (En Banc).

The Appeals Board in upholding the Judge observed that the Legislature enacted Labor Code section 5813 to permit sanctions but that section only applies to applications for adjudication filed after January 1, 1994.

Fees for Non-Attorneys

Lay representatives who are not attorneys but supervised by a licensed attorney may be entitled to a fee under Labor Code section 5710. See 99 Cents Only Stores v. W.C.A.B. (Arriaga) (2000) 65 Cal.Comp.Cases 456 (Published).

In Longval v. W.C.A.B. (Chavez) (1996), 61 Cal.Comp.Cases 1396 (Published) the Court of Appeal, Fourth District, stated in part:

Since 1917, persons unlicensed to practice law have been permitted to represent workers before the WCAB. 6 Along with licensed attorneys, the lay representatives were entitled to receive compensation for their services, as fixed by the WCAB. In Eagle Indem. Co. v. Industrial Acc. Com. (1933) 217 Cal. 244 [18 P.2d 341], our Supreme Court explained the Legislature may prescribe the qualifications for admission to the bar and define what constitutes the practice of law. ( Id. at p. 247.) HN3Go to the description of this Headnote. Although as a general rule no one may practice law without a license, the Legislature may create exceptions to the rule. (Ibid.) The qualifications to practice and exceptions to licensure requirements are subject to judicial scrutiny for propriety and reasonableness. (Ibid.) The Supreme Court determined the Legislature had created such an exception for laypersons to practice law in representing workers before the WCAB, but noted "[i]f it be desirable from a legislative standpoint to prohibit lay representation before the [WCAB], the act could be amended to accomplish that result." ( Id. at p. 249.)...

Longval and other lay representatives had no fundamental right to appear before the WCAB and receive compensation for their services. HN8Go to the description of this Headnote. Even where the state licenses a person to conduct a business, trade or occupation, the person acquires a privilege, not a right, subject to the state's reasonable restrictions. ( Rosenblatt v. Cal. St. Bd. of Pharmacy (1945) 69 Cal. App. 2d 69, 74 [158 P.2d 199] [assistant pharmacist's license not renewed after classification abolished].) Rather than eliminate all lay assistance to applicants, the Legislature took the less drastic step of eliminating compensation and leaving applicants with pro bono assistance,  along with attorney representation. Undeniably the class of persons earning a livelihood as lay representatives is affected by the legislation. However, the deprivation was not arbitrary but a valid exercise of police power to eliminate fraudulent claims for the public good....Footnotes omitted. See also Simi (USD) v. W.C.A.B. (1993) 58 Cal.Comp.Cases 235 (Writ Denied) for right of a para-legal to represent a party at a Board hearing and Eagle Indemnity Co. v. I.A.C. (Hernandez) (1933) 19 I.A.C. 150, 217 C244 where the Commission recognized the right of a representative to make appearances at Commission's offices.

Deposition Not Signed

An applicant's attorney is entitled to a fee under Labor Code section 5710 even if the applicant does not sign the deposition.

Labor Code section 5710 requires only that the employer or insurance carrier requests a deposition be taken of the injured worker. Here, the applicant's deposition was taken and therefore, the requirements for setting a fee were satisfied. Labor Code section 5710 contains no requirement.