What the panel ordered
Affirmed the First Amended Findings of Fact and Order denying additional attorney's fees under Labor Code section 5710.
Petition for reconsideration of the First Amended Findings of Fact and Order issued December 17, 2021, regarding attorney's fees under Labor Code section 5710.
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.
From the decision · page 6Turning first to applicant's contention that the WCJ erroneously failed to find him entitled
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant reviewed deposition transcript alone and made no changes, with negligible attorney involvement.
Favours Defendant prevailed
Supported denial of additional attorney's fees for transcript review.
From the decision · page 5Finally, pursuant to the testimony of the Applicant, he reviewed his deposition transcript alone and made no changes. To the extent that his attorney was involved in the review process, it was barely negligible at best...
No evidence of attorney Ozeran's involvement in document production beyond signing the formal response.
Favours Defendant prevailed
Supported denial of additional attorney's fees for document production.
From the decision · page 7Here, the record fails to show Ozeran's involvement in the identification and production of documents. Specifically, although Ozeran's signature appears on the Response to Defendant's Deposition of Documents, applicant's trial testimony was that applicant himself produced "documents before and after the deposition as [he] found them" without implicating Ozeran in that process; the deposition transcript fails to show that the documents were produced at applicant's deposition; and the record otherwise lacks evidence such as a cover letter or email showing Ozeran's involvement in the document production, whether before, during or after applicant's deposition. (Transcript of Proceedings, December 15, 2021, p. 9:4-16; Ex. C, Deposition of the applicant, March 9, 2021, pp. 1-18; Report, pp. 2-3.) Given the absence of evidence showing how, if at all, Ozeran was involved in the production of documents other than signing the formal response, we are unable to discern error in the WCJ's finding that applicant is not entitled to additional attorney's fees based upon the production of documents.
Favours Defendant prevailed
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 74 Cal.Comp.Cases 720, 728; First Nat'l Bank v. Maxwell (1899) 123 Cal. 360, 367-368
Waiver requires a clear, unequivocal, and decisive act showing relinquishment of a known right.
Defendant's partial payment of invoice with objection letter did not constitute waiver of right to object to attorney fee rate.
From the decision · page 7We observe that waiver is the intentional relinquishment of a known right after knowledge of the facts, and it may be either express or implied. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) (Supervalu) 74 Cal.Comp.Cases 720, 728.) "To make a case of abandonment or waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part." (First Nat'l Bank v. Maxwell (1899) 123 Cal. 360, 367-368.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant testified he reviewed deposition transcript alone and made no changes; no evidence of attorney involvement in document production beyond signing response.
From the decision · page 5Finally, pursuant to the testimony of the Applicant, he reviewed his deposition transcript alone and made no changes. To the extent that his attorney was involved in the review process, it was barely negligible at best...
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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