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SUBPOENAING RECORDS

SB 863 made significant changes to the important discovery process of obtaining records to prove an injured worker's claim.Labor Code §5307.9 provides:

"On or before December 31, 2013, the administrative director, in consultation with the Commission on Health and Safety and Workers’ Compensation, shall adopt, after public hearings, a schedule of reasonable maximum fees payable for copy and related services, including, but not limited to, records or documents that have been reproduced or recorded in paper, electronic, film, digital, or other format. The schedule> shall specify the services allowed and shall require specificity in billing for these services, and shall not allow for payment for services provided within 30 days of a 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. The schedule shall be applicable regardless of whether payments of copy service costs are claimed under the authority of Section 4600, 4620, or 5811, or any other authority except a contract between the employer and the copy service provider."

The imposition of a fee schedule for copy services was heralded before SB 863, but the requirement that the injured worker or his or her attorney first request records from the employer or adjuster, then wait 30 days before ordering records through a copy service of their own choice is a huge impediment. What stops the defendant from claiming the records are not relevant, or that the worker must use a service that defendant contracted with?

Labor Code §139.32(a)(3) provides: "Services” means, but is not limited to, any of the following:
(A) A determination regarding an employee’s eligibility for compensation under Division 4 (commencing with Section 3200), that includes both of the following:
(i) A determination of a permanent disability rating under Section 4660.
(ii) An evaluation of an employee’s future earnings capacity resulting from an occupational injury or illness.
(B) Services to review the itemization of medical services set forth on a medical bill submitted under Section 4603.2.
(C) Copy and document reproduction services.
(D) Interpreter services.
(E) Medical services, including the provision of any medical products such as surgical hardware or durable medical equipment.
(F) Transportation services.
(G) Services in connection with utilization review pursuant to Section 4610

Labor Code §139.32(d)(2): It is unlawful for an interested party to offer, deliver, receive, or accept any rebate, refund, commission, preference, patronage, dividend, discount, or other consideration, whether in the form of money or otherwise, as compensation or inducement to refer a person for services.

Label Item Links Comments
Labor Code See above  
Regulations/Rules Current WCAB subpoena regs eff. 7/1/15 Subpoenas  
Cases   
Forms  
Websites  
Practice Tips The editor changed her initial letter of representation to include this verbiage:

Demand for Copies of Records & Continuing Service of Medical Reports: This letter shall be considered a demand within 30 days 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. In addition, production of these records shall be accompanied by a certification or declaration that all records demanded have been produced and a log detailing those items not produced. please send a copy of all correspondence or notices sent to [Injured Worker] to date, as well as any claim forms, RU-91 or job descriptions of any sort, wage statements, payroll and earnings information, and notes from telephone conversations with all vendors. This request specifically includes the claim file contents listed in 8 CCR §10101.1. If I do not receive these records within 30 days of this request, I shall subpoena them (see Labor Code §5307.9).

 
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