by Dave Jones-Landry –
I recently came up against a novel issue of handling travel expenses for transporting a southern California applicant to be deposed in San Francisco. For whatever reason, applicant, who lives and works in Southern California, selected counsel located in San Francisco. Accordingly, her claim was venued at the San Francisco WCAB and had been proceeding in that venue for around eight months when the file came to B&B.
In setting applicant’s deposition, our office was of course asked to arrange for the applicant’s transportation to her San Francisco attorney’s office for the proceeding. This raised an issue for my client: why we were on the hook for transportation costs from Southern California to Northern California when there are plenty of workers’ comp attorneys in Southern California who could represent applicant?
While my gut told me we were responsible for covering transportation costs for the deposition, I could not readily recite the applicable code and/or regulatory sections that applied, so I did some research. What I found was as follows:
Cal Labor Code §5710(b) states that: “where 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.”
Clear enough, right? But this raises the age-old legal question of “what’s reasonable?” More specifically, because of the manner in which venue had been selected in applicant’s case, this raised the question of whether transportation from Southern California to San Francisco for the deposition was “reasonable” in light of the fact that applicant could easily have found counsel closer to home.
As suggested by the above, I determined the “reasonableness” issue would be decided by whether the application was filed in the appropriate venue. Venue is addressed by Cal Labor Code § 5501.5, which provides under subsection (a) that applicant’s counsel’s principal office location may serve as the basis for venue selection, and under subsection (c) that: “If the venue site where the application is to be filed is the county where the employee’s attorney maintains his or her principal place of business, the attorney for the employee shall indicate that venue site when forwarding the information request form required by Section 5401.5. The employer shall have 30 days from receipt of the information request form to object to the selected venue site. Where there is an employer objection to a venue site under paragraph (3) of subdivision (a), then the application shall be filed pursuant to either paragraph (1) or (2) of subdivision (a).” (Note that the reference to 5401.5 was an error of the legislature, as no such section exists, but the reference to the information request form has been recognized as valid.)
According to §5501.5, then, my client would have needed to assert an objection to venue within 30 days of receiving the information request form from applicant’s counsel, assuming applicant indicated venue choice in an information request form submitted at the outset of the claim. If no objection was asserted at that time, we would need to base any current objection to venue on an assertion that applicant’s counsel either failed to properly submit an information request for at the outset of the claim, or failed to indicate venue in that form. Aside from having some valid ground for asserting an objection, though, it looked like my client was on the hook for transporting the applicant hundreds of miles for her deposition.
Of course, what this tells me is that because more often than not counsel does not get involved in a claim until it has existed for a few months, carriers must be vigilant in reviewing information requests from applicant’s counsel at the outset of the claim to determine whether any objection needs to be made at that time to venue selection, to avoid potential complications associated with deposition the applicant later in the case. Accordingly, this should be added to the To Do list of carriers receiving new claims.
Viewing this website does not form an attorney/client relationship between you and Bradford & Barthel, LLP or any of its attorneys. This website is for informational purposes only and does not contain legal advice. Please do not act or refrain from acting based on anything you read on this site. This document is not a substitute for legal advice and may not address every factual scenario. If you have a legal question, we encourage you to contact your favorite Bradford & Barthel, LLP attorney to discuss the legal issues applicable to your unique case. No website is entirely secure, so please be cautious with information provided through the contact form or email. Do not assume confidentiality exists in anything you send through this website or email, until an attorney/client relationship is formed.