Legal Question in Workers Comp in California

I have an upcoming Mandatory Settlement Conference and then hearing regarding a motion for penalties and sanctions for two incidents when my employer unreasonable withheld treatment. Since my case was settled via stipulation and all I have left is future medical, there is no real money for attorney fees. Prior to a previous deposition, I was told by the WCJ that I could get an attorney to sit in on the deposition and they would get paid for their time. For an MSC and subsequent hearing, can I do the same? Can I ask for attorney fees as part of the penalties and sanctions, thus being able to hire an attorney for these specific two events?


Asked on 8/21/16, 11:34 pm

1 Answer from Attorneys
Nancy Wallace Nancy Wallace Atty at Law

No, Calif. Labor Code 5710 only covers the attorney's time at a deposition of the applicant, nothing else (not even taking a physician's deposition). Your actual attorney might have requested costs and sanctions of making demands for payment and then researching, preparing and serving the Petition for Penalties...but you indicate you already have a 'motion' for penalties and sanctions set for a hearing, so that sounds like you prepared and filed the form demanding penalties already.

Money is the challenge here. The Judge can award up to 25% of the treatment that was 'withheld'. So if the treatment was $10,000, the penalty is $2,500...15% of that $2,500 is just $375. It isn't worth an MSC and hours and hours of preparation then Trial for the possibility of $375. If the judge thinks the treatment was withheld properly, then there's no penalty and the attorney gets 15% of 0.

If you speak with the Information & Assistance Officer -- the I&A Officer -- you should get most questions answer no bother with an attorney who is concerned she may end up with nothing if the judge can't find at bad faith tactics.

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Answered on 8/30/16, 1:23 pm


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