Tips for Taming Work Comp Subpoenas
Tips for Taming Work Comp Subpoenas Legal copy services are a fact of life in the legal world. No attorney practicing today can live without them, unless we could dedicate our whole day to the minutiae of document preparation and dissemination. They are an essential service that we rely on. But let’s face it. They run a business and will always try to bolster their bottom line. Since there are strict rules as to which party pays for legal copy services and when, the ledgers get a little muddy. Lawmakers have stepped in to try and streamline the industry, but there are always ways to figure out how to sidestep regulations. Following, I’ve prepared a list of the current tricks employed by copy services and how you can spot them, outmaneuver them, and prevent getting gouged. But first, a little background. A number of years ago, I drafted a two-part article series about the perils of copy services and their subpoena and billing practices and how to mount a successful defense against them. It resulted in one well-known provider in Northern California writing a “white paper” in response to my article, which was filled with some small counter arguments and not much more. In the years subsequent to those articles, a lot has changed in the world of copy services and their practices. The most notable change was the passage in 2012 of California SB 863. SB 863 and its impact on subpoenas SB 863 implemented a fee schedule for copy services. This ended, for the most part, the “wild west” of service fees. In my opinion, SB863 and the implementation of a copy service fee schedule was implemented at least in part, to prevent unnecessary copy service charges that typically occur throughout the life of the claim. Signed in August of 2012 and later codified in Labor Code §5307.9, SB 863 ultimately resulted in a fee schedule that went into effect on 7/1/15 (see also 8 CCR §9980-9983 for more information). The fee schedule did a number of things: Placed a flat fee on copy costs for pages below 500 Added a per page cost above 500 pages Cancelled other subpoena costs Created flat fees for records from certain agencies Gone were the days of $300+ bills for a Certificate of No Records. Useless charges for “base rate”, phone calls, mileage, pagination, bates stamping were ghosts of billing abuses past. And the defense side rejoiced. But not me! I chose to operate on the assumption that like other billing phenomena in the Workers’ Compensation world such as positional MRI’s and re-packaged and compound medications, providers would simply find another way to recoup that lost income. I was right. I’ve compiled a list of tricks I have noticed that copy services are pulling in light of SB 863, which in all seriousness really was a hit to their bottom line. Read: Is the claim contested? Trick #1- Subpoenas issued immediately upon representation SB 863, codified by 8 CCR §9982(d)(1) established a waiting period of 30 days for the defendant to provide records upon request and also discusses “allowable services”. In the event the applicant’s attorney sends a letter of representation and makes a request for records from the defendant, the defendant is not liable for charges associated with records provided during this waiting period by the carrier, claims administrator, or party that is not a professional photocopier. The first “trick” I wish to address is the subpoena immediately upon filing of an Application of Adjudication or simply when applicant’s attorney sends their boilerplate introduction letter and makes a general request for records. I have been told on more than one occasion that it is commonplace for most of the larger copy service companies to have a de facto “desk” at many applicant attorney’s offices, where they come by multiple times a week to inquire about new claims to be filed and immediately proceed with multiple subpoenas to parties such as employer, carrier, known physicians, private treating physicians and others. I would argue that contrary to many copy service providers’ claim that a subpoena issued by them starts this 30 day clock, the Code does not specify this. Further, this would defeat the purpose of the fee schedule. If a subpoena is issued during this timeframe and the defendant provides the records to applicant’s attorney directly, can the copy service cancel their subpoena and hit you with a $75.00 charge? I would argue no! By issuing immediate subpoenas, they anticipate that: The defendant will not comply with a 30-day requirement Parties served with their subpoenas will automatically comply, thus “justifying” their billing and They can establish a pattern of additional subpoenas, which we will discuss below. Trick #2- Ongoing/updated subpoenas Any defense attorney or claims examiner who has worked for longer than a week at an active desk has experienced this. New applicant’s attorney? Here’s your subpoena. New primary treating physician? Here’s your subpoena. The defendant issues a subpoena for a particular location? Here’s a subpoena for the same location. Ongoing medical care? Here’s your updated subpoena. The most common arguments that I hear are four-fold. The first argument I usually hear is that the original request for records in the boilerplate form sent by applicant’s attorney at the start of the claim creates an ongoing requirement for a file and serve. I concede that this argument may have some merit, yet we must jump into the weeds to dissect it. With an ongoing duty, I am not aware of a set “required time” to comply with ongoing file and serves. I recommend every 45 days the claims examiner provide updated reports and upon the receipt of a DOR. However, I always argue upon receipt of an updated subpoena for ANY location in which the defendant has records, that we treat that subpoena as a request for records from the applicant and comply with the request within 30 days. I always make it a point to demonstrate to the WCAB that
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