DWC Proposes Attorney Fees for Depositions

Wednesday, January 28, 2026 | 1

The Division of Workers' Compensation proposed a maximum hourly rate of $500 for attorneys to prepare injured workers for a deposition and to represent them during the proceeding in rules posted to its online forum for an informal comment period.

Attorneys would need to be certified by the State Bar as workers' compensation specialists to receive the maximum fee under draft rules the division promulgated Monday.

For attorneys without that certification, fees would be based on experience. The cap would be $450 for those with at least five years of experience, and $400 for attorneys with less. Non-attorney representatives would be entitled to a maximum fee of $250 per hour under the proposal.

The rules would prohibit payment "for any services other than preparation of the injured employee for a deposition and representation during the deposition." A non-exhaustive list of activities for which deposition fees would not be allowed includes general file review, travel time or expenses, reviewing deposition transcripts and performing administrative or clerical tasks.

Attorneys would be required to bill in increments of no more than one-tenth of an hour and also prohibited from charging minimum fees or flat rates. 

The rules would also require both non-attorney representatives and attorneys appearing on behalf of the counsel-of-record for the injured worker to clearly state their status on the record when appearing at depositions.

Some preliminary comments have said the proposed rates seem reasonable, but most were critical of eliminating payment for travel and the lack of a provision to automatically adjust maximum payments for inflation.

Applicants' attorney Peter Gimbel said Tuesday in written comments that the maximum fee should be expanded to also include attorneys with substantial experience, such as 10 or 15 years of practice in the field.

"As currently structured, the proposal creates an inequitable result whereby an attorney who has obtained certification after only a limited period of practice may recover a higher fee than an applicant attorney who has devoted decades to workers’ compensation litigation," Gimbel wrote.

He also said that though the $500 maximum fee appears reasonable on its face, it doesn't adequately account for inflation or increases in the state's average weekly wage. He said the fee should be at least $600, and the rules should include a mechanism for periodic adjustments based on inflation or other economic factors.

He also objected to disallowing compensation for travel time, saying depositions are routinely conducted remotely, and eliminating compensation creates the potential for abuse by compelling in-person attendance at distant locations to impose uncompensated burdens on attorneys representing injured workers.

"When a defendant elects to require in-person attendance, reasonable compensation — including for travel time — serves as an important incentive to conduct depositions efficiently, avoid unnecessary travel and act with professional courtesy," Gimbel wrote. "Such incentives ultimately further the system’s overarching goal of expeditious and fair resolution of claims."

Michael Lee, co-founder of applicants' firm Lee Partners Law and a certified specialist in workers' compensation law, said the stipulations for most depositions give the injured worker 45 days to make changes to the transcript. 

"We are required to review the transcript with our clients," Lee wrote. "As such, we believe that this should be a compensable service."

Lee also said the rules should include a deadline for paying deposition fees — he proposed 60 days — a penalty for nonpayment, and additional fees for the work that applicants' attorneys undertake to obtain payment.

The rules would implement a provision from SB 1160, signed by former Gov. Jerry Brown in 2016, ordering the DWC to determine the range of reasonable attorney fees for depositions. 

The division is accepting comments on the proposed rules through Feb. 13. The online forum with the proposed rules and instructions for submitting comments is here.

The division will have to initiate the formal rulemaking procedure, including another comment period, before adopting permanent rules.