Labor Code 5710 Fees: The Number California Has Been Missing Since 2018

Labor Code section 5710 has been clear for decades about who pays. When the employer or carrier takes the deposition of a represented injured worker, the applicant's counsel is entitled to a reasonable allowance for attorney's fees, and the employer or its insurer writes the check. The worker also gets travel and meal expenses, wages lost attending, one copy of the transcript at no cost, and an interpreter where one is needed.

What the statute never said is what reasonable means in dollars. SB 1160 handed that job to the Administrative Director in 2016, with a deadline of July 1, 2018. The deadline came and went.

What filled the vacuum was district practice. A handful of presiding judges published their own memoranda, most of them dated between 2011 and 2015, and in those districts the parties had something to point at. Everywhere else, the number was whatever the two firms could live with, or whatever a judge decided on the day. Defense firms report demands of $500 to $600 an hour, sometimes from attorneys two years into the practice. The applicants' bar has argued for years that memoranda written a decade and a half ago no longer reflect what it costs to run a practice. The disputes go to judges in districts that are already short on judges, and the cost of litigating a fee can exceed the fee.

On January 26, 2026, the DWC posted a draft regulation that attaches the figure.

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$500 an hour at the ceiling, billed in tenths

The proposal would add Article 5.8 and section 9795.6 to Title 8 of the California Code of Regulations. It applies when the employer or insurer requests the deposition, and it covers two things: preparing the injured worker before the deposition, and representing the worker during it.

The hourly ceilings:

• $500 for attorneys certified as Workers' Compensation Specialists by the State Bar of California
• $450 for attorneys with five or more years of California workers' compensation experience
• $400 for attorneys with fewer than five years
• $250 for non-attorney representatives

Billing has to be incremental and time-based, in units no larger than a tenth of an hour, reflecting time actually spent. Minimum charges and flat fees are gone. So is billing for time not actually expended, which the draft states directly rather than leaving to implication.

Against the old district memoranda, the top rate rises rather than falls. The 2011 to 2015 documents put a certified specialist at $400. The draft puts the same attorney at $500.

A disclosure provision reaches both non-attorney representatives and attorneys appearing on behalf of the injured worker's counsel of record. Anyone in either position would have to state their status on the record at the deposition, which settles a question defense counsel currently has to raise directly.

The draft also bars payment for services other than preparing the injured employee for the deposition and representing the employee during it. It then gives examples of charges that would not be allowed: general file review, travel time and travel expenses, review of the deposition transcript, and administrative or clerical work. That list is not exhaustive, which matters. The scope clause is what does the work, and the four examples only illustrate it.

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The inactive license trap in subsection (c)

The draft defines an attorney, for purposes of the section, as someone with an active California license in good standing at the time the services were performed.

The practical consequence is significant. Attorneys move to the State Bar's inactive list for ordinary administrative reasons, most often a missed payment or a lapsed MCLE compliance period, and the change is not always noticed immediately. Under the draft, an appearance made during a lapse would not generate a payable fee. Bar status is publicly searchable, so firms that rely on covering attorneys for deposition coverage should consider adding a status check to the assignment process before the regulation is finalized.

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Nothing has been adopted, and district practice still governs

The January posting went to the DWC's informal online forum, with comments due by 5 p.m. on February 13, 2026.

The rates themselves drew less objection than expected, with several commenters calling them reasonable. The criticism concentrated on two other points. Removing payment for travel time, one commenter argued, takes away the incentive for defendants to avoid unnecessary in-person appearances. And because the stipulations used in most depositions give the injured worker 45 days to make changes to the transcript, applicant attorneys argued that transcript review with the client is required work and should be compensable. Commenters also noted that the draft contains no mechanism to adjust the maximums for inflation, which is how the 2011 to 2015 memoranda became outdated in the first place.

That is as far as it has gone. The informal forum is a first pass. Formal rulemaking, with its own notice, its own comment period, and review by the Office of Administrative Law, still has to run before the Administrative Director can adopt anything. Rates could change, the exclusion list could be revised, or the proposal could stall.

Until it clears that process, local district practice governs, and nothing about how a 5710 fee is billed or challenged has changed.

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Where preparation ends and file review begins

Read subsection (a) next to the exclusion list and the operational question becomes obvious. The regulation pays for preparation of the worker. It does not pay for reading the file.

In practice those hours are connected. Preparing a client requires knowing the prior claims, which body parts each one involved, what the treatment timeline looks like, where two providers took inconsistent histories on the same day, whether the employment dates line up with the claimed period of exposure, and which pages the defense intends to use. Preparation without that groundwork is attendance. Under the draft, the hours spent getting there stop being recoverable from the carrier while remaining just as necessary.

Transcript review sits in the same position. Excluded from the fee, and still the step where testimony either matches the medical record or does not.

The practical result is that record work attached to a deposition moves from an invoice line to firm overhead. On the defense side it has always been overhead. What changes for defense is the volume of invoice review and a new argument to have, because the draft does not define where preparation ends and file review begins. The first year after adoption will be spent testing that line.

For applicant firms, there are things worth doing now regardless of how the rulemaking goes. Time entries that fold client preparation and record work into one line will invite challenge, so separate them. Bill in tenths. Retire flat fees. Wait for the transcript before invoicing, since billing for review of a transcript that has not issued is one of the specific practices cited in support of the exclusions. Where the file is still incomplete at the time the deposition is noticed, the subpoena and authorization process is the constraint on how early that preparation can realistically begin.

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What an unindexed file costs when nobody reimburses it

Whatever number the Administrative Director lands on, the deposition still turns on what is in the file and how fast counsel can find it. A 900-page record with no index, arriving in the order the custodians happened to send it, costs the same hours to work through whether those hours bill at $450 or nothing. The difference is who absorbs them.

That is the calculation worth running before the rulemaking finishes. Records retrieval and follow-up, medical record review with chronology and indexing, and dictation and transcription can each sit inside the firm or outside it, and the proposed regulation makes the inside version more expensive by removing its reimbursement. eWord Solutions handles that work for California workers' compensation firms on both sides of the aisle.

Section 9795.6 has been eight years late arriving. It would be worth knowing what an unindexed file costs your firm before it lands.

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