What the panel ordered
Petition for reconsideration granted; prior Findings and Award rescinded; new Findings and Order denying all attorney fees and costs requests issued
Petition for reconsideration of Findings and Award denied by WCA, granted by WCAB panel, rescinding prior F&A and substituting new Findings and Order
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB found no sanctionable conduct by applicant's attorney and denied all attorney fees and sanctions requests due to lack of proof of entitlement to additional fees.
From the decision · page 3II. Section 5813(a) provides for sanctions for "bad-faith actions or tactics which are frivolous or solely intended to cause unnecessary delay." (Lab. Code, § 5813(a).) These include "actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit." (Cal. Code Regs., tit. 8, § 10421.) Here, as explained further below, we do not agree that applicant's attorney's petition seeking fees pursuant to section 5710 was indisputably without merit or otherwise displayed sanctionable conduct. Sanctions are designed to punish litigation abuses and to provide the court a tool for curbing improper legal tactics and controlling their calendars. (Duncan v. Workers' Comp. Appeals Bd. (2008) 166 Cal.App.4th 294, 302.) An argument that is unmeritorious is not necessarily frivolous, which can be defined as "not having any serious purpose or value". (See "Frivolous", Google Dictionary, retrieved September 13, 2024, from http://www.google.com.) Section 5710 provides, in pertinent part, as follows:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's attorney failed to prove entitlement to additional attorney's fees under Labor Code section 5710.
Favours Defendant prevailed
This failure led to denial of the request for additional attorney's fees.
From the decision · page 5FINDINGS OF FACT 1. Applicant's attorneys Robert Ozeran and the Law Offices of Robert Ozeran failed to meet their burden of proof that they are entitled to additional Labor Code section 5710 fees. 2. Defendant's attorneys McNamara and Drass's petition for costs and sanctions for appearance at the proceedings is denied. 3. Ross Pike Memorial Trust's request for costs for the proceedings is denied.
Applicant's attorney did not appear at the proceedings and provided no testimony supporting the fee request.
Favours Defendant prevailed
Lack of evidence to support the fee request justified denial.
From the decision · page 4However, based on our review of the record, we do not find any error in the WCA's finding that applicant's attorney has failed to satisfy his burden of proving that he is entitled to recovery of section 5710 fees in this case. We first observe that applicant's attorney did not appear at the proceedings; instead, he sent another attorney in his place. The transcript of the proceedings provides that only seven exhibits for applicant (Exhibits 1 to 7) were entered into the evidentiary record. (Transcript of Proceedings, February 15, 2024 (Transcript), p. 8:5-17.) When the arbitrator asked if there were any other exhibits that applicant's attorney wished to admit at the hearing, applicant's attorney declined. (Transcript, p. 8 15-17.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5710
Labor Code section 5710 authorizes attorney's fees for deposition-related expenses.
The WCAB reviewed the statute and found no error in the WCA's denial of additional attorney's fees under this section.
From the decision · page 4of Part 4 of the Code of Civil Procedure. To that end the attendance of witnesses and the production of records may be required.... (b) If 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. (2) Reimbursement for any loss of wages incurred during attendance at the deposition. (3) One copy of the transcript of the deposition, without cost. (4) A reasonable allowance for attorney's fees for the deponent, if represented by an attorney licensed by the State Bar of this state. The 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... (§ 5710 [Emphasis added].)
Labor Code section 5813
Labor Code section 5813 authorizes sanctions for bad-faith actions or tactics which are frivolous or solely intended to cause unnecessary delay.
The WCAB found applicant's attorney's conduct was not sanctionable under this section.
From the decision · page 3II. Section 5813(a) provides for sanctions for "bad-faith actions or tactics which are frivolous or solely intended to cause unnecessary delay." (Lab. Code, § 5813(a).) These include "actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit." (Cal. Code Regs., tit. 8, § 10421.) Here, as explained further below, we do not agree that applicant's attorney's petition seeking fees pursuant to section 5710 was indisputably without merit or otherwise displayed sanctionable conduct. Sanctions are designed to punish litigation abuses and to provide the court a tool for curbing improper legal tactics and controlling their calendars. (Duncan v. Workers' Comp. Appeals Bd. (2008) 166 Cal.App.4th 294, 302.) An argument that is unmeritorious is not necessarily frivolous, which can be defined as "not having any serious purpose or value". (See "Frivolous", Google Dictionary, retrieved September 13, 2024, from http://www.google.com.) Section 5710 provides, in pertinent part, as follows:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorney did not appear at proceedings; only another attorney appeared in his place; no testimony or evidence supporting attorney fees for deposition review
From the decision · page 4However, based on our review of the record, we do not find any error in the WCA's finding that applicant's attorney has failed to satisfy his burden of proving that he is entitled to recovery of section 5710 fees in this case. We first observe that applicant's attorney did not appear at the proceedings; instead, he sent another attorney in his place. The transcript of the proceedings provides that only seven exhibits for applicant (Exhibits 1 to 7) were entered into the evidentiary record. (Transcript of Proceedings, February 15, 2024 (Transcript), p. 8:5-17.) When the arbitrator asked if there were any other exhibits that applicant's attorney wished to admit at the hearing, applicant's attorney declined. (Transcript, p. 8 15-17.)
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