Grinberg: About Those 5710 Fees ...

Tuesday, April 25, 2023 | 0

Allow me to ask you a question: What issue in California’s workers’ compensation system keeps adjusters, attorneys and risk managers up at night? What is the number one biggest concern shared by the defense community?

Gregory Grinberg

Well, if you guessed 5710 fees, I would be really surprised. They don’t even rank in the top 10 probably. But, since I'm nothing if not a merchant of disappointment, let’s do a blog post on 5710 fees anyway.

For those unfamiliar with Labor Code Section 5710, it governs depositions in the workers’ compensation system (with due deference to the Code of Civil Procedure).  But, if you wake up any applicant attorney in the middle of the night with a violent shake, his or her first response will be, “Protect 5710(b)!” Why? Because Labor Code Section 5710(b)(4) provides for a “reasonable” allowance for attorney fees for representing the deponent in a deposition.

Just as a fun aside, this section, last amended in 2016, reflects that “[t]he administrative director shall, on or before July 1, 2018, determine the range of reasonable fees to be paid.” There does not appear to be a fee schedule set by the administrative director as yet. Instead, common practice is for the judges in each Workers' Compensation Appeals Board venue to adopt practices of reasonable fees.

Mind you, the typical rates for defense attorneys range from $170 to $210 per hour, depending on the terms and circumstances. However, 5710 fees for applicants' attorneys as set by the various WCAB venues typically range from $250 to $450 per hour depending on the experience of the attorney.

It’s odd, really — you could have a defense attorney billing at $195 per hour with 20 years of experience, but if he represents a family member as an applicant attorney, he would be awarded $450 per hour. The market and the WCAB are clearly not in sync.

Anyway, I want to bring to your attention an interesting case I recently had occasion to review, Cowens v. ABC Unified School District, a 2022 panel decision. Therein, applicant was deposed by defense counsel and at that deposition was represented by an applicant attorney with 14 years of experience who was not a certified specialist.  The firm submitted a bill for $450 per hour, plus $50 for a half hour of “staff time.” 

Defendant objected to the rate for the attorney, agreeing to pay $400 per hour, and objected to the “staff time” out of hand.

There are some other issues in the panel decision as well, but the key one I would like to address is that the workers' compensation judge found a reasonable rate for the applicant attorney was $400 per hour. If the attorney had 14 years of experience at the time of the deposition and the WCJ awarded $400 per hour, doesn’t this panel decision set at least some authority for a ceiling of $400 per hour for 5710 fees?

We see this dispute come up often, and we have the glaring difference between what the “free market” pays to defense attorneys and the WCAB awards to applicant attorneys. The difference does not turn on years of experience or certified specialist status. But, without formal guidance from the administrative director as contemplated by Labor Code Section 5710, does this panel opinion signal that the WCAB finds up to $400 per hour reasonable?

If so, shouldn’t the Cowens panel decision, which affirmed the WCJ’s opinion and rate, be used as the basis for an objection to any 5710 fee demand in excess of $400 per hour?

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.