Williams v. First Student (BPD) 45 CWCR 43
Applicant claimed a cumulative trauma injury while working as a school bus driver. The case was dismissed for lack of prosecution in January 2015.
Prior to the dismissal, applicant’s attorney had issued subpoenas through lien claimant Med-Legal Photocopy from May through November 2011.
The WCJ granted defendant’s petition to quash the subpoenas for the records of two healthcare providers. Defendant filed a second petition to quash subpoenas directed to additional organizations on the basis that the subpoenas were duplicative but the WCJ did not act on this petition and applicant obtained the documents sought by those subpoenas.
A trial judge held the issue of the validity of the liens for subpoenas not previously quashed. Lien claimant presented invoices with accompanying proofs of service on defendant. Included in the exhibits was an Invoice Explanation & Review letter that summarized and attached all previous billings and that requested payments. Defendants offered no evidence and no objections to the invoice or the letter.
The WCJ issued a findings and awarding lien claimant reimbursement pursuant to Labor Code §4662 (a) for charges of $102.20 and $80.00 for two entities with interest and statutory increases for photocopying, but denied reimbursement for subpoena-related costs for the majority of subpoenas issued. The WCJ found unreasonable and unnecessary as those were for the same documents that defendant already subpoenaed before the lien claimant issued the subpoena. The WCJ also denied reimbursement for subpoenas that hadn’t been served on the parties in the case, reasoning that applicant is required to first request documents from the entity before subpoenaing them. Lien claimant filed a petition for reconsideration.
The WCAB cited the case of Allison (64 C.C.C. 624) that the Labor Code and the WCAB rules generally provide adequate tools to practitioners for liberal discovery including the ability to subpoena records. Labor Code §4622 requires defendants to pay all medical legal expenses for which the employer is liable.
Labor Code section 4620 (a) provides that expenses are any costs and expenses incurred by or on behalf of any party which expenses may include medical records, for the purpose of proving or disproving a contested claim. The Board cited the en banc opinion and Cornejo 81 C.C.C. 451 and Martinez 78 C.C.C. 444, that medical-legal expenses include copy service fees incurred when obtaining medical and other records which may be recovered by the filing of a lien claim.
Citing the case of Torres 77 C.C.C. 1113, the Board stated that a lien claimant asserting a lien claim has the burden of proving the necessary elements of its claim. Those elements include showing that (1) a contested claim existed that the time expenses were incurred; (2) the incurred expenses were for the purpose of proving or disproving the contested claim; and (3) the expenses were reasonable and necessary at the time they are incurred. (Labor Code §§ 4620 and 4621 and the case of American Psychometric Consultants 60 C.C.C. 559). Pursuant to Labor Code § 4622 (e) (1), if the defendant objects to the reasonableness or necessity of the incurred expenses, the defendant must notify the provider and must indicate the reasons for the objection.
The panel stated that the en banc decision in Otis 45 C.C.C. 1132 requires a defendant to make a specific and non-conclusory written objection to the reasonableness of any medical-legal bill within 60 days of receipt. Failure to do so precludes the defendant from raising reasonableness of the medical-legal cost as a defense. Citing American Psychometric, the panel observed that although the Legislature repealed the cost provisions of the former section in 1984 and replaced them with Labor Code § 4620, the reasoning of the Otis decision remains sound. In this case, all parties agree that the claim was contested and the expenses that were incurred were for the purpose of proving or disproving a contested claim.
The panel pointed to the public policy of liberal pre-trial discovery that may reasonably lead to relevant and admissible evidence in workers’ compensation cases. Pursuant to Rule 10530, it is not necessary that the attorney first seek to obtain copies of the documents by written release before seeking them by subpoena in order for the lien for photocopy services to be valid.
Using subpoenas to obtain those documents is not unreasonable noting that an attorney has broad discretion when determining the best method of obtaining the production of documents in order to fulfill his or her duty of representation so long as there is no significant evidence of abuse of that discretion. The panel rejected defendant’s contention that the contested subpoenas duces tecum are unnecessary because the defendant had already subpoenaed the same documents and applicant’s attorney need only have to request them from defense counsel.
The panel observed there was no evidence at trial that the defendant’s subpoenas had resulted in the production of documents to defendant or that the documents were ever received. Also significant was the fact that the WCJ never acted on the second petition to quash the subpoenas.
The panel found the record insufficient to support the WCJ’s conclusions and findings that the subpoenas were unreasonable and unnecessary at the time they issued.
As stated, Labor Code §4621 (a) provides that the reasonableness and necessity for incurring these expenses shall be determined with respect to the time when the expenses were actually incurred.
Finally, the panel saw authority for the judge’s conclusion that lien claimants could not recover for the cost of subpoenas served on a party to the case, if the applicant had not first informally sought copies of the documents from the party. The panel vacated the decision and returned the matter to the trial level based on the standards set forth in this decision.