Slides_DanMora_FeeSchedule_Webinar71015

California Workers’ Compensation:Impact of the SB 863

Copy Service Fee Schedule

Presented by

Dan MoraJuly 10, 2015

About the Presenter

● Founder / CEO, Gemini Duplication

● 13+ Years Industry Experience

● Immediate Past President, CWCSA

● CAAA Chapter Meetings - Speaker

● CAAA Conventions - Exhibitor

● Author of 2 Industry White Papers

● US Air Force Veteran

● Webinar is approximately 45 minutes

● At the end of webinar is a live Question and Answer time

● Submit your questions using the Chat Box

● WorkCompCentral will announce how to use the ChatBox

● Course materials will be posted on course registration page here: https://www.workcompcentral.com/education/course/course_pk/951

Course Details

OverviewThis webinar will cover…

● History of the SB 863 Fee Schedule

● Discovery Fundamentals

● Specific Sections of the Regulation

● Expected Outcomes

January 2011 California Commission on Health and Safety and Workers’ Compensation (CHSWC) Liens Report

April 2012 Administrative Director Moran provides a public comment on abusive copy services

April 2012 DIR Administration seeks input on a “Listening Tour” hosting public forums

Fall 2012 SB 863 introduced and signed by the Governor

October 2013 Berkeley Research Group submitted a copy service fees report

February 2014 First draft of DWC regulations received; revisions ensue

April 2015 Final draft of DWC regulations published

July 1, 2015 Copy Service Fee Schedule now in effect

Timeline

Discovery Fundamentals

● What is discovery? ● What is the role of a subpoena duces tecum ● Every citizen has a constitutional right to due process● Statutes and case law on discovery rights● Relationship between SDT and the deposition● Substantiation of discovery

In the following section we will discuss:

“Without an opportunity for discovery as of right, parties would face substantial barriers to effective

trial preparation, with results inimical to the overall purpose of the discovery statutes to reduce litigation costs, expedite trials, avoid surprise, and

encourage settlement.”

-- Fairmont Ins. Co. v. Superior Court(2000) 22 Cal.4th 245 , 92 Cal.Rptr.2d 70; 991 P.2d 156

References● The U.S. Constitution (amend. IV and XIV)

● The California Constitution Article XIV, Section 4

● Allison v. Workers’ Comp. Appeals Bd. (1999) 64 CCC 624

● California Civil Discovery Act (1986), CCP §§2016-2036

● 8 CCR §10626

● Irvington-Moore Inc. v. Superior Court (1993)

● Greyhound Corp v. Superior Court (1961)

● Pember v. Superior Court (1966)

● Darbee v. Superior Court (1962)

● Patricia Ann Hardesty vs McCord & Holdren Inc. (1976)

● California Labor Codes

Discovery StatutesCCP 2017.010 “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

8 CCR 10626 “... all parties, their attorneys, agents and physicians shall be entitled to examine and make copies of all or any part of physician, hospital, or dispensary records that are relevant to the claims made and the issues pending in a proceeding before the Workers' Compensation Appeals Board.”

CCP 10530 This section outlines the use of a subpoena duces tecum in workers comp, which refers to CCP 1985.

CCP 1985(a) “The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, electronically stored information, or other things under the witness's control which the witness is bound by law to produce in evidence.”

LC 5710 “...any party to the action or proceeding, may, in any investigation or hearing before the appeals board, cause the deposition of witnesses residing within or outside the state to be taken in the manner prescribed by law...the attendance of witnesses and the production of records may be required.”

Discovery Statutes

Substantiation of DiscoveryCalifornia Code of Civil Procedure § 1985

(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, electronically stored information, or other things under the witness's control which the witness is bound by law to produce in evidence... (b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced.

CCP 1985 states that the attorney of record may issue a subpoena “subpoenaing party” and that a “deposition officer” may compel production (aka, the copy service)

CCP 2020.420 names this person and requires they “shall be a professional photocopier”

CA Bus. & Prof. Code §22458 requires that professional photocopier to authenticate and maintain the integrity of records, further outlined in CCP 2026.010. The fee schedule also mandates that records services are not reimbursable when provided by a party who is not a professional photocopier under §22458.

The workers compensation industry should be a fair, just system; having a clear and documented chain of custody is a vital component of achieving the fairest system.

The Fee Schedule● Definitions● Abuse● Allowable and Non-Allowable Services● 30 Day Rule● Fees

Authorizations & Copy Services8 CCR 9980(a) “A medical information release, signed and dated by the injured worker, [or the worker’s representative if the injured worker is a minor or an incompetent or is deceased], to obtain records which states the specific uses and limitations on the types of information to be disclosed.”

8 CCR 9982(a)“This fee schedule covers copy and related services which are obtained for the purpose of proving or disproving a contested claim, except services under a contract between the employer and the copy service provider.”

8 CCR 9980(b)“Copy and related services” means all services and expenses that are necessary for the retrieval and copying of documents and are responsive to a duly issued subpoena or authorization to release documents for a workers’ compensation claim.”

When to Use Authorizations California Evidence Code Section 1158(Chapter 3)

Signed authorizations to release records can only compel discovery pre-action and CAL. EVID. CODE §1158 specifies the authority is “prior to the filing of any action.” Thus, applicants’ discovery of records should be done with the use of subpoenas. A defense request could legally compel production through signed patient authorization if this is done prior to the action.

Allowable and Non-Allowable Services 8 CCR 9982(b) Payment is allowable for all records that were NOT provided to the applicant by the defense in the first 30 days after the initial request for the claims file. It also specifies payment is allowable when medical records are not produced WITHIN statutory timeframes.

8 CCR 9982(c) Requires that the claims administrator notify the applicant on which records are being requested; this section says that payment for independent discovery of those records is NOT allowed.

Labor Code 3055.2 If claims adjuster FAILS to send notice to the injured worker (applicant attorney) of records they are seeking by subpoena, fee schedule applies.

The 30 Day Rule8 CCR 9982(d) “There will be no payment for copy and related services that are: (1) Provided within 30 days of a written request by an injured worker or his or her authorized representative to an employer, claims administrator, or workers' compensation insurer for copies of records in the employer's, claims administrator's, or workers' compensation insurer's possession that are relevant to the employee's claim.”

After the 30 days from initial request of the claims file, applicant attorneys can order any and all records needed for the injured worker’s case.

The 30 day clock starts with a request for the claim file. This request can be made by demand (8 CCR §10608), usually embedded in an applicant’s letter of rep, sent to the claims adjuster; OR, applicant attorney can request the claim file formally with a subpoena.

Updated Records - New Law8 CCR 9982(e)(1) explains that the claims administrator is not liable for payment of records previously obtained by the same party form the same source (the same copy service) unless that request is accompanied by a declaration of good cause.

● Applicant attorneys must now be prepared to submit (attach to to the order for records) a Declaration of Good Cause, when ordering updated records, which is often done when treatment is ongoing and the most current records are needed for a hearing or trial.

● The Declaration, when needed, is a written statement, that under 9982(e) need only be a brief and concise declaration that the applicant is subpoenaing the records under this authority and a note as to why the records are relevant.

Example: “The law office of [applicant law firm] represents [injured worker] in [ADJ and/or Claim Number]. Applicant [injured worker] has been treating continuously since the last subpoena duces tecum, dated [insert date of last subpoena] and a complete set of the most current records from [medical location] is required.”

● Declarations are not required in any instance where an applicant attorney subs in.

Actual Fees for Services

● $0.10 cents/page over 500 pages● $75 - Certificate of No Record / Cancellation● $20 - EDD Record Reimbursement● $30 - WCIRB Record Reimbursement● $5 - Add’l electronic set requested within 30

days of original request● $30 - Add’l electronic sets requested after

30 days of original request● $10.26 per duplication of X-Ray or Scans● $3 per CD of X-Rays or Scans

$180 Flat Fee includes... Other Fees Payable...● Subpoena Preparation● Service of Process● Mileage● Pickup● Delivery● Phone Calls● Repeat Visits● Page Numbering● Witness Fees● Check Fees● Custodian Fees● Shipping & Handling

Expected Outcomes● Dispute

○ Flat Fee Model○ 30 Day Rule○ Right to Independent Discovery

● Remedy○ Court order for discovery and payment○ Written pre-approval for discovery and payment○ Petition for cost (non-medical only), charge attorney fees○ Attorney lien for cost (medical only)○ Depose custodian of record, charge attorney fees

Expected OutcomesPotential Scenario:

1. Applicant attorney requests claim file.2. After 30 days, attorney subpoenas Dr. Bob’s records.3. Applicant copy service is used to obtain Dr. Bob’s records. 4. Copy Service receives objection to payment, stating the records were already provided. 5. The applicant’s attorney may argue that the claims file, clearly defined by 8 CCR

§10101.1. Claim File--Contents, was provided NOT Dr. Bob’s records.

This logic is supposed by chain of custody provisions.

Objections are often unnecessary, especially when considering the mountain of codes and case law that support liberal discovery.

Recommendations

● Applicant may obtain a court order for

discovery and payment

● Applicant may obtain written pre-approval

for discovery and payment

● Non-medical request, applicant may petition

for costs and charge attorney fees

● Applicant may subpoena the custodian of

record to appear at deposition, with records

and charge attorney fees

Regulatory Changes Establish Case Law● Blanket good cause provision

● Delete 9982(b) and (c)

● Make discovery presumably necessary

with Defendants responsible to disprove

the presumptions

Conclusion● Discovery and objections should be used properly● Discovery is presumed necessary● Discovery is critical to the benefits delivery system● Discovery is vital to a fair system● The alternative* to industry standard discovery will

result in much higher cost to the system overall*See, The Alternative to Copy Services, by Dave DePaolo, esq. Friday, January 24, 2014. In salient part, “A job that a copy service would have charged $300 to do would cost at least $3,000 if an attorney was performing a deposition of the custodian of records - and it would be a reasonable fee too because the attorney needs to ensure that all of the records are in place.” Retrieved 1 July 2015 from http://daviddepaolo.blogspot.com/2014/01/the-alternative-to-copy-services.html

Conclusion● Professional photocopier services are obligated to remain an

uninterested third party in a case or claim, representing the court as deposition officers and witnesses

● Applicants have the right to the independent discovery of records needed for a claim

● The copy service’s job is to be objective in its work, representing

the court with integrity● Doing the right thing has the

greatest rewards

Thank You to all who attended this webinar and special thanks to the incredible

staff at WorkCompCentral

Inquiries? Please Contact:

Dan Mora, CEO 559-805-9571

[email protected]

www.geminiduplication.com

2015 © Gemini Duplication, Inc.

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