by George B. Tihin –
A 33-year-old panel decision is useful in knocking down unreasonable requests for Labor Code 5710 fees by faraway applicant’s attorneys opting not to hire a local contract attorney to take a deposition.
Let’s go through a hypothetical fact pattern that may sound familiar to you:
- An injured worker living in Fresno County who files a claim stemming from work for an employer located in the Fresno area.
- For unknown reasons, the injured worker retains an attorney located in Los Angeles, mere blocks from the Los Angeles Workers’ Compensation Appeals Board. The applicant’s attorney files the application for adjudication of claim and chooses the Los Angeles WCAB for the venue, based on the county of the applicant’s attorney’s location.
- The defense successfully petitions to change venue to the Fresno Board and the injured worker’s deposition is set at the office of defense counsel in Fresno. All of this makes perfect sense, since the injured worker lives mere blocks away from defense counsel’s office in Fresno.
- Applicant’s attorney does not hire an appearance attorney to represent the injured worker at the deposition. Rather, he drives from Los Angeles to Fresno – 220 miles, four-and-a-half hours each way – to represent his client. The deposition is concluded and the attorneys go their respective merry ways.
- Several weeks later, you receive a request for LC 5710 fees in the amount of $4,400. You examine the request. The asserted hourly rate of $400 doesn’t seem altogether unreasonable. After all, the applicant’s attorney has 20 years of experience and is a Certified Specialist practicing in Southern California. The time requested for depo prep (one hour) is reasonable. The asserted time of the actual deposition (two hours) is accurate as well. So far, everything seems reasonable and accurate.
So what’s the big problem? Why is this particular request for 5710 fees so exorbitant?
Because the applicant’s attorney is requesting a whopping eight hours of round trip travel time. At his rate of $400 per hour, this amounts to $3,200.
Essentially, the attorney is asking you to pay for his time sitting in traffic on the clogged freeways of Los Angeles as he tries to make his way over the mountain into the San Joaquin Valley.
What do you do when this happens? Well, the thing you don’t do is pay the entire request.
The reasonableness of 5710 fees is a gray area. Parties fight over the reasonableness of an asserted hourly rate all the time, and there are many variables that go into this. That is a discussion for another time. But usually some sort of a compromise on the hourly rate can be reached. Reasonable depo prep is usually 30 to 60 minutes (sometimes more, if the case and the issues are particularly complicated). Depo time is inarguable. But a request for full time for out-of-town travel is particularly problematic. Not because the time being requested is inaccurate. In fact, the attorney might be cutting you a break on the time being requested.
An attorney’s request for full time for out-of-town travel is problematic because, even though the door-to-door time is accurate, you should not be forced to pay thousands of dollars simply because the injured worker chose to hire an out-of-town attorney when there are plenty of capable in-town attorneys.
When one of my clients receives a request like this, I break down the request based on the three tasks for which the applicant’s attorney can be paid:
- Round trip travel
- Depo prep
- Actual depo time
As long as the asserted depo prep is reasonable and the actual depo time is accurate, I recommend that my client pay those at the requested hourly rate (as long as the rate is reasonable). Then I look at the travel. I usually recommend that my client pay for one hour of round trip travel, which is essentially the time it would take if the out-of-town attorney were coming from the county line.
Once I have obtained confirmation that my client intends to issue the 5710 fees that I recommended, I send the applicant’s attorney a detailed objection to the request, one that I hope will put the matter to rest. I point out that the attorney is getting full depo prep and actual depo time, but I assert that the door-to-door request for out-of-town travel is excessive, and that my client will be paying for one hour of round trip travel.
Then I give them the law.
There is a fairly obscure case from 1986 called Thorson v Insurance Company of North America that is fairly on point. It is hard to find and not too many people know it exists. You can’t even find the case on Google. Essentially, a panel of WCAB commissioners concluded that reasonable travel time for the purpose of 5710 fees should be calculated as if applicant had selected an attorney within a reasonable geographic area of the injury location, applicant’s residence, or the venue of the case.
Does the applicant’s attorney go away peacefully? Almost always. In 99 out of 100 cases, this process works and I never hear from the applicant’s attorney again.
In the rare instance where the applicant’s attorney pushes the issue, I get to go down to my local WCAB where an out-of-town attorney has to drive up from sunny Los Angeles (without reimbursement) and argue with a straight face that, even though my client paid $1,600.00 in 5710 fees for a two hour depo, he should be awarded an additional $2,800.00 because he decided to sit in traffic and listen to his favorite podcast rather than pay $150.00 an hour for an appearance attorney. I would argue that’s the very definition of unreasonable and excessive, and I have not lost on this quirky little issue yet.
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