Has The WCAB Limited Discovery Through Copy Services?

Introduction

The WCAB has quietly, and with no direct authority, made efforts through their regulatory and decision powers to LIMIT the use and scope of applicant DISCOVERY in California workers compensation. These limits are PROFOUND. This was done through the 2013 En Banc decision Martinez v. Ana Terrazas and the followup rule change in that same year labeled C.C.R. Section 10451.3.

Specifically, what the WCAB has attempted to do is FORCE any and all discovery in the form of “Records” to be payable by the employer ONLY when the services were ordered during a period of time narrowly defined in LC Section 4620(b), Medical-Legal expenses. The Board went even further and opined that copying services specifically could NOT be incurred/collected as Labor Code Section 5811 Litigation “costs”, as has been the historical precedent. To make matters worse, in their subsequent panel cases since 2013 the Board has consistently expressed the opinion that the disputed issues listed on the Application Of Adjudication form by the injured worker is not sufficient evidence of a contested claim for the purposes of DISCOVERY, which was also the prior precedence.

The Effect Of The Martinez Case On Applicants And Copy Services

The EFFECT is that copy services are being required by WCJs to prove their services were ordered during a phase of the case where the claim was contested under the narrow definition of LC 4620(b). Often, the copy service can’t prove that, because the records were related to general discovery on the case, and unrelated to a medical-legal evaluation. While this situation is not widely known or enforced yet by the Payors in the system, the WCAB itself is holding every copy service that comes before the Board responsible for proving there was a contested claim when their services were incurred before considering any other issue – regardless if the records were medical-legal in nature, or not. As the WCAB’s new way of interpreting copy services “trickle down” to the local Judges and Claims Adjusters, this will present a very big problem for applicant attorneys and their copy services. From what I hear from hearing reps and collectors for copy services, this has already become quite a challenge on most or all of their receivables that go to trial for payment enforcement.

Applicant Attorneys May Be Barred From Ordering Records On Many Of Their Cases Under This Interpretation

By forcing “all” copying services to be related ONLY to a medical legal situation – and specifically NOT allowing copy services to be LC 5811 Costs –  applicant attorneys would no longer be entitled  to use a copy service on ADMITTED CASES where there is currently no disputed medical issues, and treatment and benefits are being provided. It also means that applicant attorneys would have to WAIT before starting discovery for up to 90 days, or until the employer accepted or denied the claim. This latter interpretation of the employer’s statutory time to review the case DELAYS when applicant attorneys can get busy doing discovery on their cases, and will delay the overall case timelines. Again, historical precedent is that applicant law offices start their discovery immediately after taking the case, so they have the evidence they need to make appropriate decisions while representing the injured worker.

Why Would The Applicant Attorney Order Records Before A Claim Is Contested?

Records are one of the most basic forms of discovery in workers compensation. Imagine the position the applicant’s attorney would be in if he/she were unable to review discovered records prior to the applicant’s DEPOSITION. On admitted cases where TD and treatment is being provided appropriately, THIS is the situation the WCAB’s decision has put applicant attorneys. Medical, employment and claims records have historically been used to prove industrial injury, prove or disprove prior medical conditions, prove or disprove adherence to the various medical guidelines required in the system (MTUS/ACOEM)… to help prepare an appropriate Request For Authorization (RFA) and subsequent UR denial response, and to send to IMR along with a request for treatment decisions. Employer records are used to prove notice of the injury, compliance with workers compensation requirements, wages, job description, notices, postings, and many other important benchmarks and data used throughout the case. Claims records are used to prove or disprove the fact that the injured worker received the proper and timely notices, that TD and other payments are the right amounts and provided timely, and to discover what records are available in the employer/claims possession. WCIRB records often must be subpoenaed to discover coverage information so the right parties can be noticed. These are just a few examples of the need for discovery unrelated to the need for a medical-legal evaluation.

In short, without proper discovery and records, the applicant attorney cannot represent his client in a professional manner – and especially on accepted cases. It is for this reason that most applicant attorneys and their copy services have simply ignored the WCAB’s decision in Martinez and changes in C.C.R Section 10451.1, and continued to order records at the start of their cases. Frankly, I doubt most attorneys or even their copy services fully understand what these changes meant to them.

The root issue here is copy services are struggling to get paid for the valuable work they provide to the injured workers when the carriers push this issue all the way up the chain to the WCAB. From the cases I’ve been reading, this is coming up more and more at local lien trials, as well. The swell is happening, which is why I am writing about this.

How Is The WCAB’s Interpretation Different Than Historical Precedent?

Prior to the Martinez decision and subsequent Regulation 10451.3, records were ordered and payment enforced under more than simply LC 4620. Payments for copying services were enforced as one of the following, depending on the status of the case, the type of records being copied, and the intended use of the records: (a) Labor Code 5811 “costs” between the parties, (b) Medical-Legal expenses, or (c) Medical expenses under LC 4600.

In other words, applicant attorneys could (and routinely DID) order records on admitted claims, as well as prior to there being any contested issues or medical disputes, and these services were enforced and collected as Labor Code 5811 “costs” between the parties. We are all aware and comfortable with this SAME situation when using Interpreters, so this concept should not be foreign to anybody. Also flying in the face of the WCAB’s holding in Martinez, Primary Treating Physicians could (and routinely DID) order records through copy services as part of treatment, and the copy service was able to enforce and collect their fees through Labor Code 4603.2(b)(1)(A).

What Authority Or Precedent For Records Being LC 5811 “Costs” Is Available?

I managed a large applicant copy service from 1986 through 2012, and our company enforced and collected copying receivables as LC 5811 expenses all the time. I was a witness at trial on at least one case where the Judge awarded the receivable as a 5811 “cost”, and not a medical-legal expense. Most of the other copy services, with a few exceptions, rarely pushed their issues before a WCJ to collect on their fees, and chose instead to just call and mail the adjuster endlessly for payment. Regardless, those of us that had to support the copy expense before a WCJ understood and used LC Section 5811 routinely.

In support of my personal experience, CHSWC documented the historical precedence for copy service costs as 5811 Litigation Expenses in their 2011 “Liens Report”, on page 15. Click on the clip, below to view.

Furthermore, in 2013, Labor Code Section 5307.9 became law, and was known as the Copy Service Fee Schedule, and echoes the CHSWC report in providing that the Fee Schedule SHALL apply to copy service costs when incurred under Labor Code Section 5811 (and 4620 and 4600). Click on the clip, below to view.

When the courts interpret the language of the legislature in a code section they are required to give all words and terms meaning, and not simply assume that by mentioning Labor Code 5811 here that the legislature either didn’t know what they were talking about, or didn’t REALLY mean that copy service receivables could be enforced under that section.  I can only assume that the Commissioners in Martinez simply overlooked this important Labor Code Section while forming their opinion, along with the fact that records are a valid treatment expense under LC 4603.2. By the way, I searched the Martinez case for mention of LC 5307.9 or LC 4603.2(b), and the Commissioners never addressed either one.

Finally, the Copy Service Fee Schedule regulations as enacted by the DWC in 2015, is the absolute authority regarding how and when records are to be ordered by applicant law offices. The fee schedule is based on the authority of LC 5307.9, which states “The schedule shall specify the services allowed..”  In plain language, this means that the schedule (regulations) shall be the authority that defines the circumstances surrounding WHEN and HOW the services are to be incurred.

It is important to note that the Fee Schedule Regulations were enacted TWO YEARS AFTER the Martinez decision, so the Martinez decision may have been superseded by the Fee Schedule Regulations on this issue. The problem with that theory is the WCAB is still publishing panel cases currently using Martinez as their benchmark.

Regulation Section 9982 is titled as and defines “Allowable Services” for use of a copy company, and there is no limitation mentioned or indicated that copying services may ONLY be incurred on contested claims as defined under LC 4620(b), nor does the Fee Schedule give any indication that other limitations may exist for copy services other than what’s stated. It would be pretty sneaky not to mention the fact that the services could only be incurred on claims during a period narrowly defined in LC 4620(b), if that were in fact what the Administrative Director was thinking when this regulation was enacted. The Fee Schedule does make a number of important limitations about WHEN during the course of the case copying services may be utilized, but again, nothing about NOT ALLOWING copying on admitted cases, or where there is no officially “contested claim” yet¹.

So, there is strong precedent that copying has always been allowed as a 5811 Litigation Cost, Labor Code LC 5307.9 specifically states that records may be enforced under LC Section 5811 through the Fee Schedule, and the Official Copy Service Fee Schedule regulation makes no mention of limiting discovery and records to only medical-legal situations.

Why Doesn’t LC 5811 Mention Copy Services

Okay, you might say… if copy service receivables have historically been enforced under LC 5811 then why doesn’t LC 5811 specifically provide for copying type services, like it does for Interpreters?

The pertinent section of LC Section 5811 that historically supported copy services is the second sentence:  In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board. There is a significant body of case law that supports applicant litigation costs under this specific section. Interpreters and copy services and vocational experts all have routinely enforced payment for their services under this section over the last 30 years that I have been involved in the system.

In 2013, as part of SB863, Interpreters were specifically added to Labor Code Section 5811(b) to better clarify when an Interpreter can and cannot be used in a non-medical legal basis. The purpose was to put controls around the use of Interpreters – not to exclude copy services or any other type of service. The language that was added to subsection (b) of LC 5811 does not state or infer that Interpreters are the ONLY type of service or vendor that can be used under LC 5811, post-SB863, and no court has interpreted the changes to subsection (b) to mean that. So, it’s not clear why the WCAB chose to exclude JUST copy services from falling under LC 5811 in Martinez, and to lock them out of using a Petition For Cost in CCR 10451.3. In any event, that is what the Commissioners did.

What Authority Did The WCAB Use To Exclude LC 5811 “Costs” From Copy Services?

My interpretation of the Martinez opinion (En Banc) is that the Commissioners were concerned that Copy Services, in general, would withdraw their liens in bulk, and re-file all their receivables as a Petition For Cost under LC Section 5811 TO AVOID PAYING THE LIEN ACTIVATION FEE. This was the underlying situation in the Martinez case – the copy service filed a Petition For Cost under LC Section 5811 and withdrew their Medical Legal Lien they had previously filed, hoping to avoid the lien fee.

So, that is what this case really STANDS FOR.

The WCAB looked up Labor Code Section 4620 and saw that “medical records” were specifically defined there as a medical legal expense… and when they looked at Labor Code Section 5811 they did not see copy services specifically listed there – only interpreters. So, the CONVENIENT legal position the WCAB took was that any type of expense that is explicitly defined in one code section and not another IMPLIES that the expense should be EXCLUSIVELY considered in the defined area ONLY. In other words, since they found “medical records” written in LC Section 4620 and not specifically in Section 5811, they ruled out ANY OTHER usage for discovery/records except for in relation to a medical-legal evaluation (i.e. limited to LC Section 4620 only).

This interpretation fit nicely into what the WCAB was trying to accomplish as far as the lien fees, which was to STOP all copy services from withdrawing their medical legal liens and filing Petitions For Costs under LC 5811. However… the underlying premise is critically FLAWED, and causes what I believe were unintended consequences.

Why The WCAB’s Interpretation Is Flawed

First, to declare En Banc and in Regulation that copy services may only be used by applicants as a medical-legal service severely LIMITED the applicant’s right to DISCOVERY on their cases… and there was absolutely no authority as part of SB863 or anywhere else that indicates the Legislature intended to limit the applicant’s discovery rights so drastically. The WCAB’s entire premise in Martinez is based on the fact that the Commissioners only found “medical records” listed in LC 4620, and nowhere else in the Labor Code.

Which is where they got it wrong…

Records are clearly defined in Labor Code Section 4603.2(b) as a TREATMENT expense. And that’s just one place they missed…

Even more important is that Labor Code Section 5307.9, which was enacted as part of SB863 in 2013, defines and gives authority to a copy service FEE SCHEDULE, and gives authority to the Administrative Director to create a Schedule that defines what services are allowed. In other words, the Fee Schedule is responsible for listing all limitations on the services allowed by copy companies. Near the bottom of LC 5307.9 it states that the fee schedule shall be enforced under Labor Codes 4600, 4620 and 5811, or any other authority. This explicit use of Labor Code Section 5811 within the Copy Service Fee Schedule authority should leave NO DOUBT that the WCAB should NOT have concluded that copying services would ONLY be appropriate under LC 4620, and under no other Labor Code Section simply because they did not find any such authority in their limited research.

To drive the last nail into the proverbial coffin, California Code of Regulations Section 9982, the AD’s Fee Schedule Regulation, authorized and enforced by LC Section 5307.9, is titled “Allowable Services” for copy services, and nowhere in this list of limitations on the use of copy services does it state that such services may only be incurred on “contested claims” and used ONLY in relation to a medical-legal report under LC Section 4620.

Conclusion

It’s understandable that in 2013, the WCAB was trying to digest all of the changes from SB863 and fit all the various service types into their new silos of enforcement. The Commissioners wanted to keep copy services who had filed liens from spilling out of the “Medical-Legal Lien” silo and into the unregulated LC 5811 Litigation Cost silo. I seriously doubt any of the commissioners had given deep thought as to how discovery and copy services fit into the scheme of the system until then. In their haste to corral the pesky copy services the Commissioners neglected to do all of the research and thinking necessary to avoid some serious unintended consequences. I don’t believe the makeup of the WCAB at the time, or even now, really intended to limit the applicant’s discovery rights to the very narrow set of circumstances listed in LC 4620(b). They simply acted, and did the best they could in 2013, and in the ensuing years they are waiting for somebody to come along and give them a solid argument, with points and authorities, to change their mind. Thus far, this apparently hasn’t happened.