John Lett vs. L.A.C.M.T.A; The Travelers' Insurance Company

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WORKERS' COMPENSATION APPEALS BOARD 1 2 STATE OF CALIFORNIA 3 4 Case No. VNO 0378504 VNO 0378505 VNO 0382578 VNO 0402513 VNO 0462718 JOHN LETT, 5 6 Applicant, 7 vs. OPINION AND DECISION AFTER RECONSIDERATION 8 9 L.A.C.M.T.A.; THE TRAVELERS INSURANCE COMPANY, 10 Defendant(s). 11 12 On December 15, 2003, the Appeals Board granted 13 reconsideration to further study the factual and legal issues in 14 this matter, so as to give us a complete understanding of the 15 record and enable us to issue a just and reasoned decision. 16 Having completed our study, we hereby issue our Decision After 17 Reconsideration. 18 On May 9, 2003, the applicant’s deposition was taken by 19 defendant. On May 14, 2003, pursuant to the petition filed by 20 applicant’s counsel, the workers’ compensation administrative law 21 judge (WCJ) issued a conditional order allowing applicant’s 22 counsel attorney’s fees of $416.60 in accordance with Labor Code 23 section 5710.1 24 25 26 27 1 Pursuant to Labor Code section 5710(b)(4): “Where the employer or insurance carrier requests a deposition to be taken of an injured employee… the deponent is entitled to receive in addition to all other benefits: a reasonable allowance for attorney’s fees for the deponent, if represented by an attorney licensed by the State Bar of this state,” which 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.” 1 2 3 4 5 6 Defendant timely objected to the order on May 22, 2003, contending that it would be an unreasonable exercise of discretion to allow attorney fees when the applicant had not signed and delivered the deposition transcript, and thus, the deposition had not been completed. Defendant also argued as a matter of public policy that Labor Code section 5710 must be interpreted consistent 7 with 8 Insurance Code section 1871.4, and that because Labor Code section 9 5710 fees were a benefit to the injured worker as opposed to his 10 or her attorney, it was logical to provide that benefit only after 11 the 12 apparently had no objection as to the monetary amount of the fee 13 requested. efforts injured to eliminate worker had workers’ completed compensation the deposition. fraud under Defendant 14 The issue of the Labor Code section 5710 deposition fees 15 proceeded to hearing on July 7, 2003, and following the submission 16 of points and authorities by the parties, the WCJ issued his 17 decision on October 2, 2003. 18 legal requirement that an applicant sign his or her deposition 19 transcript 20 Labor 21 “setting of a discretionary fee pursuant to Labor Code section 22 5710 refers to a reasonable attorney fee to be set and approved by 23 the appeals board; and that the manner in which the deposition is 24 taken and completed is governed by the Code of Civil Procedure 25 section 2025(q) in accordance with Labor Code section 5710.” Code prior to section The WCJ determined that there was no allowing 5710. reasonable Specifically, attorney’s the WCJ fees found under that 26 Defendant filed a timely petition from the WCJ’s decision, 27 contending that it is an abuse of discretion to allow Labor Code LETT, John 2 1 2 3 section 5710 fees to an attorney whose client refuses to sign a deposition transcript under penalty of perjury. discussed below, we will affirm the WCJ’s decision. 4 5 6 For the reasons 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, 7 the requirements for setting a fee were satisfied. 8 section 5710 contains no requirement that an applicant must sign 9 his 10 reasonable attorney’s fees.2 11 or her deposition as a condition precedent Labor Code to allowing Moreover, even assuming that the substantive provisions of 12 the 13 compensation 14 2025(q)(1) 15 transcript of the deposition by signing it, or refuse to approve 16 the transcript by not signing it,” and that if “the deponent fails 17 or refuses to approve the transcript within the allotted period, 18 the deposition shall be given the same effect as though it had 19 been 20 deponent.” Code of Civil Procedure proceedings, provides approved, that subject Code are of applicable Civil to Procedure workers’ section the deponent “may either approve the to any changes timely made by the 21 In other words, Code of Civil Procedure section 2025(q)(1) 22 allows the deponent not to sign his or her deposition, with the 23 consequence that deposition is given the same effect as if it had 24 2 25 26 27 Labor Code section 5710(a) authorizes “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 Article 3 (commencing with Section 2016) of Chapter 3 of Title 4 of Part 4 of the Code of Civil Procedure.” (emphasis added.) Thus, it would appear that Labor Code section 5710 incorporates the deposition procedures set forth in the Code of Civil Procedure and not its substantive provisions. (See Allison v. Workers’ Comp. Appeals Bd. (1999) 72 Cal.App.4th 654, 64 Cal.Comp.Cases 624, 630 (fn. 7); Moran v. Bradford Building, Inc. (1992) 57 Cal.Comp.Cases 273 (Appeals Board en banc).) LETT, John 3 1 2 3 4 5 6 been signed. Thus, whether the applicant signs his or her deposition, should have no bearing whatsoever on the discretionary allowance of a reasonable fee under Labor Code section 5710 for attorney services rendered in connection with that deposition, which was taken at the behest of the defendant employer or carrier. 7 Furthermore, this defendant’s reliance on People v. Post 8 (2001) 94 Cal.App.4th 467, 66 Cal.Comp.Cases 1503 is completely 9 misplaced. In Post, the Court of Appeal affirmed the applicant’s 10 conviction of workers’ compensation fraud under Insurance Code 11 section 12 misrepresentations about her physical condition in her unsigned 13 deposition. 14 convicted of perjury in violation of Penal Code section 118 when 15 she 16 convicted of attempted perjury. 17 concerns of defendant (who has not asserted that there are any 18 material misrepresentations in the applicant’s deposition) with 19 respect to workers’ compensation fraud are not only speculative, 20 but are wholly unfounded. 21 show how it is prejudiced in any way by the applicant’s failure to 22 sign his deposition. did 1871.4(a)(1) not for making false statements and The Court also held that while Ms. Post could not be sign her deposition transcript,3 she could be Thus, the alleged public policy In addition, defendant has failed to 23 24 3 25 26 27 This is because under Penal Code section 124, a conviction for perjury requires that the deponent execute his or her deposition transcript. (See Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 66 Cal.Comp.Cases 706.) The Court in Post, however, also urged the Governor and legislators to revaluate the signature and delivery requirements of Penal Code section 124, noting that in federal courts the crime of perjury is complete once a materially false statement is spoken at a deposition and there is no requirement the transcript be executed by the deponent. (66 Cal.Comp.Cases at p. 1515.) LETT, John 4 1 2 3 4 5 Accordingly, there being no legal or public policy basis for making the allowance of reasonable deposition attorney’s fees under Labor Code section 5710 dependent on whether an applicant signs his or her deposition, we see no abuse of discretion herein and will affirm the WCJ’s decision. 6 For the foregoing reasons, 7 IT IS ORDERED as the Decision After Reconsideration of the 8 Workers’ Compensation Appeals Board that the decision issued on 9 October 2, 2003, is AFFIRMED. 10 WORKERS’ COMPENSATION APPEALS BOARD 11 12 ___________________________________________ 13 14 I CONCUR, 15 16 17 _______________________________________ 18 19 20 _______________________________________ 21 22 23 24 25 26 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA March 5, 2004 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES AS SHOWN ON THE OFFICIAL ADDRESS RECORD, EXCEPT LIEN CLAIMANTS. ed 27 LETT, John 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LETT, John 6

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