ARE 5710 FEES OWED? (California)

[steve appell]

Part time applicant files a timely claim for a specific injury, and ER has concrete evidence that applicant had not worked within a week before, a week after, or the day of the incident. Defense takes applicant depo and AA wants 5710 fees. Are 5710 fees owed if post depo applicant withdraws his claim and/or stipulates he was not working at time of injury and/or stipulates he was not an employee?

TIA

[LawAdvocate]

Yes, because I am guessing Defense called the depo thereby indirectly contracting for AA time.

If the employer had such concrete evidence, why was the depo necessary. Case should have gone straight to an AOE/COE hearing.

[jpod]

I am not sure; I suppose the question is if in fact an applicant stipulates he/she was not working during the time of injury, whether that admission means that the threshold requirements of LC 3600 for coming under the Act have not been met, and therefore by extension LC 5710 is not enforceable on the defendant?

I don't know the answer

[jpod]

I do agree in part with LawAd. b/c the depo happened and seems to have led to the stipulation.

But the language of LC 3600 states:

(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602 , 3706 , and 4558 , shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:

(1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.

(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment......
......
If LC 5710 fees are "compensation" the strict language seems like an obstacle.

[mk61347]

Steven,
I am not an atty but i do not understand. At the time of the deposition there was a valid claim. Your fees were due from defense deposing your injured worker and at that time there was a valid claim that was being disrupted.

Applicant withdrew the claim and admitted injury was nonindustrial, but this was after your fees were already due. But i guess that is why i am not a lawyer.

Mike k

[mytwocents]

If the applicant really wasn’t an employee of the insured employer, the insurance company owes nothing. Lack of employment is a complete defense and all benefits are barred. However, it sounds like he was probably an employee but wasn’t working on or around the date he claimed he was injured. If he knew he wasn’t injured at work and filed a fraudulent claim, there is case law that no 5710 fee is owed. See Mitchell v. Golden Eagle, 60 Cal. Comp. Cases 205.

[vampireinthenight]

I don't think so. Employment is a total defense. With a stipulation of no employment, the WCAB probably does not even have jurisdiction to award this fee or even hear about it. The very language of 5710 describes a fee for deposition of an injured "employee", which this deponent was not. The only twist here is that the Applicant was a former employee, so maybe the AA can try that twist, but I still doubt it.

I am curious to know the facts because, as written, they sound very troubling to me. I really hope the AA did not have a clue about the employment evidence, because otherwise he/she is setting their client up to either perjure themselves or for a fraud referral. And I really, really, hope the AA did not allow a depo of this person for the sole purpose of obtaining a depo fee.

[steve appell]

I thank you ALL for the comments, and to put your minds at ease, I am repping the uninsured ER, not the applicant. I have sent a LOR demanding the case be withdrawn with prejudice, or I will file a Bill of Particulars, a petition for costs and sanctions, and a referral to the DOI should my depo of the applicant bear fruit...……… UPDATES TO FOLLOW, and thanks again.

[mytwocents]

If you're going to take his depo, you might want to read Collins v. Superior Court 89 Cal. App. 4th 1244.

[vampireinthenight]

Haha, what a funny case. Thanks for sharing. I love good case law.