What the panel ordered
Petition for reconsideration granted; Findings and Order of July 2, 2024 rescinded; substituted findings that applicant is entitled to deposition attorney's fees; dismissal of ICW without prejudice does not bar fees; amount of fees deferred; matter returned to trial level for further proceedings.
Applicant sought reconsideration of the Findings and Order issued on July 2, 2024, which denied deposition attorney's fees; the WCJ had dismissed ICW as a party without prejudice on March 2, 2023; the Appeals Board granted reconsideration and rescinded the prior Findings and Order.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 Appeals Board found that a finding of industrial injury is not a prerequisite to awarding deposition attorney's fees under Labor Code section 5710(b), and that the dismissal of ICW without prejudice does not bar the applicant's petition for such fees.
From the decision · page 7For the foregoing reasons, IT IS ORDERED that the Petition for Reconsideration of the Findings and Order issued on July 2, 2024 is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the Findings and Order issued on July 2, 2024 is RESCINDED and the following is SUBSTITUTED therefor:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was employed by Infiniti Health LLC and settled her claim on August 3, 2023.
Favours Applicant prevailed
Establishes the employment and settlement context relevant to the deposition attorney's fees claim.
From the decision · page 71. Applicant alleged that she sustained injury during the period of December 1, 2021 through April 18, 2022 while employed by Infiniti Health LLC, who was insured by State Compensation Insurance Fund, and settled her claim on August 3, 2023.
Dismissal of ICW as a party was without prejudice on March 2, 2023.
Favours Applicant prevailed
Means the dismissal does not bar the applicant's petition for deposition attorney's fees against ICW.
From the decision · page 6As to whether the WCJ's finding that applicant is not entitled to deposition attorney's fees is supported on procedural grounds, we note that the March 2, 2023 dismissal of ICW was without prejudice. (Minute Order, March 2, 2023.) The dismissal therefore does not bar applicant from recovering deposition attorney's fees.
The WCJ's finding that a finding of industrial injury is required before awarding deposition attorney's fees is not supported by law.
Favours Applicant prevailed
Supports the Appeals Board's decision to grant reconsideration and award deposition attorney's fees.
From the decision · page 6It follows that the WCJ's finding that applicant is not entitled to deposition attorney's fees is without substantive legal support.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Mitchell v. Golden Eagle Insurance (1995) 60 Cal.Comp.Cases 205 (en banc)
A finding of industrial injury is not a prerequisite to awarding deposition attorney's fees under Labor Code section 5710(b).
The Appeals Board applied this precedent to reject the WCJ's finding that the applicant was not entitled to deposition attorney's fees because there was no finding of industrial injury.
From the decision · page 7For the foregoing reasons, IT IS ORDERED that the Petition for Reconsideration of the Findings and Order issued on July 2, 2024 is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the Findings and Order issued on July 2, 2024 is RESCINDED and the following is SUBSTITUTED therefor:
Dismissal of a party without prejudice does not bar a petition for deposition attorney's fees.
The Appeals Board found that the March 2, 2023 dismissal of ICW without prejudice does not bar the applicant's petition for deposition attorney's fees.
From the decision · page 6As to whether the WCJ's finding that applicant is not entitled to deposition attorney's fees is supported on procedural grounds, we note that the March 2, 2023 dismissal of ICW was without prejudice. (Minute Order, March 2, 2023.) The dismissal therefore does not bar applicant from recovering deposition attorney's fees.
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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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