by Tim Rose –
I was recently finalizing some miscellaneous tasks before a recent trip out of State to visit some clients. One of the last pieces of mail I pulled from my in-box was a stack of six subpoenas from Aquarius Duplication* seeking records from locations that I had subpoenaed just a few months earlier. My prior subpoenas had been served on opposing counsel, with a card that gave him the option to request copies of all records at our expense. It was never utilized. The attorney had not contacted us regarding service of these records. The applicant had not sought treatment from any of the six locations since our subpoena. And, to top it all off, the subpoenas were not timely served and had been served on a different attorney in a different B&B office who had no relation to the case at all. Slightly irritated, I placed the stack in my “to do” pile and headed to the airport. It was my intent to file an objection and Motion to Quash the subpoenas.
To pass the time on my flight, I brought a copy of an April publication of the Workers’ Comp Executive with me. Imagine my surprise when I read not one, but two articles dealing with copy services and copy/subpoena costs. One article included an interview of the CEO of Aquarius Duplication, Mr. Star Sign*. Mr. Star Sign is also head of a new organization to help express the concerns and address the rights of various providers, most notably copy service companies and interpreters. The California Workers’ Compensation Services Association (CWCSA) is an organization with a list of clients that are “applicant-oriented” service providers. Mr. Sign stated the goal of the association is to provide a different perspective in the ongoing debate about various services and providers, most notably, copy services. He claimed many who participate in the Workers’ Compensation arena do not understand particular issues copy service companies must deal with. He was concerned about frequent denials for services, and the fact that his line of business carries a high level of accounts receivable due to non-payment and objections. He was participating in the legislative process to give a voice to his side. It should be noted that there are murmurs of the development of a fee schedule for copy and subpoena services. When reading his comments, I did admire his attempt to explain that the services his company provides are necessary, efficient, and cost-effective.
Mr. Star Sign painted a good picture, but he missed some key issues in the battle between defendants and copy service providers. There may be some examiners, TPA’s, and insurance carriers who are slow to process bills or improperly deny payment. However, I contend that the majority of the issues that result in liens and litigation are not due to the defendant. I say that knowing full well that someone who reads this will assume my position is such, due to my work as a defense attorney. Fair enough. I contend that my experience as a claims examiner for nearly seven years and my work as a defense attorney have allowed me to form a solid perspective on why there are so many litigated copy service liens. I have seen countless subpoenas and copy service bills over the years. I have paid many. I have objected to many as well. I have litigated many liens. My experience has also allowed me to see the tricks, tactics and downright improper techniques in which copy service companies copy records and then demand payment.
Who is the Biggest Problem?
Let us focus on who I believe is the largest culprit behind improper copy service billing and services. It is none other than the applicant’s attorney.
Let me refresh your memory of my aforementioned case. The attorney in question on my claim was timely served with our subpoena request for six different locations. No objection was lodged. Our subpoena and copy service provided him ample opportunity to request a set of the records at the time of copying or any time thereafter. He chose not to request records. We could have provided copies if necessary. A request was never made. One simple call to the copy service, the examiner, or my office would have resulted in copies of records on his desk. Instead, he elected to have another copy service obtain records and then charge my client for their services. And trust me when I say our chosen copy service is always less expensive than the copy service he hired.
Is this behavior due to a lack of accountability? Applicant’s attorney has minimal responsibility for his actions should we object to these unreasonable services. He will likely not be held accountable for the costs to my client if services are rendered and a lien is litigated. And I doubt the copy service company will demand he pay them directly. The average defense attorney sees these subpoenas frequently. We also see follow-up subpoenas at regular intervals for the same locations. Until the legislature and the WCAB enforce greater responsibility through costs and sanctions, this behavior will not subside.
Mr. Star Sign stated he believes making copy services unprofitable to provide basic documents equates to a denial of evidence and a violation of constitutional rights. But is this really an issue? How many cases are out there where it is the applicant who is the driving force behind discovery and the subpoena process? And if this is truly a concern, why do Aquarius Duplication and other copy services make the subpoena and copy process so difficult for the defendant?
The point is, accountability and liability for applicant’s counsel is negligible. The same is also largely true for interpreting services, durable medical equipment companies, and vocational rehabilitation “experts” for Ogilvie attacks. And to a large extent, non-MPN treatment providers. Applicant attorneys often send out requests for services or direct their client to seek out medical care knowing that in the end, it is the defendant who is hounded for payment. It is the defendant who must address liens, bills, demands for service of records and endless status conferences. Almost none of these services require the attorney to spend money up front, or be liable for payment in the end. One may argue that the system is designed this way so that the party with the deep pockets bears the brunt of the burden and workload so that the applicant can have representation throughout the life of his claim. While this argument has some merit, we still continue to hear problems on delays in the litigation process, too many parties being involved on any given claim, and the costs and nuisance of hundreds of thousands of liens that clog the appeals board. Until applicant attorneys are held responsible for services that are improper, unreasonable, and unnecessary, the situation will only get worse.
The Copy Service
Let us now turn our attention to the second part of the problem. Applicant copy service companies can provide a benefit to the applicant and assist in the discovery process. However, we need to look past the rhetoric and instead focus on the reality of their services and how many outfits operate. In the example at the start of this article, I did complete an objection and also filed a Motion to Quash the multiple subpoenas. I listed multiple arguments and multiple defenses. Only time will tell if my motion will be addressed by the WCAB, and if Aquarius Duplication will adhere to our objection and not proceed with copying until the issue is resolved. It would not surprise me if they proceeded with copying services anyway. They frequently do. And so do many other copy services.
One must then ask, why would they proceed? The answer is simple: they anticipate payment regardless of their actions. Lien claimants all know that claims examiners have plenty of work to keep them busy enough without having to worry about additional objections and a pesky Motion to Quash. The typical defense attorney is just as busy and even the most basic of objections or Motions are time consuming and often costly. Lien claimants also anticipate settlement through endless calls, letters, requests for service of the complete file, and delays at lien conferences. They understand there is a cost for the defense of copy service liens. The cost of a trial can be expensive. And many examiners wish to see their claim finally closed and out of their life forever. And so, armed with this knowledge, the lien claimant approaches the defendant to start the negotiation process with demands of full reimbursement, plus penalties and interest.
The Tricks of Their Trade
As with any service provider, copy service companies have their own unique methods or “tricks” to maximize their chances for payment. Until a fee schedule is developed, there is no guide for services rendered other than the billing must be reasonable and for reasonable services. Deductions must also be considered reasonable.
- Listing of particular Labor Code sections, government regulations, or civil procedure rules to validate their services – This tactic makes a bill or lien seem more “official” and makes it appear as if they have the law on their side.
- Labor Code § 4600 – This section is often used to validate any charge, under the premise that their services constitute medical care. While the debate on whether copy services constitute “medical” services is ongoing, the trick lies in seeing what “else” you have in your arsenal to defend this claim.
- “Base rate” charges – These charges are vague and say only that they have performed some task to warrant payment. Many of the charges I believe would be associated with a “base rate” are listed separately (phone calls, miscellaneous paperwork, even mileage). If a copy service cannot explain this charge, it should not be included. How many people have ever seen a “base rate” charge explained?
- Mileage billing – Government Regulation § 19820 is the most common method to demand payment for mileage. Closer review of this regulation reveals that it applies to government employees and “officers of the State”. It has no relevance for copy services. Mileage should also be denied unless there is a good explanation why it is not included in the “base rate”, if it is minimal and local travel, or if it can be demonstrated that local copy services are not available.
- Bates stamping – Reg. § 10629(d)(1) and (2) are typically used to justify this charge. Article 9 of the Code of Regulations is also frequently referenced. These regulations deal with identification of evidence presented to parties and to the appeals board. Bates stamping is mentioned only as an option to identify. It is by no means a requirement and by no means necessary unless the document cannot otherwise be identified. Yet the mere mention of the use of a “Bates stamp” as one option to identify a document is what copy services rely on to demand payment for the service.
- Page “capture/conversion/records maintenance” – Code of Civil Procedure § 2020.440 is utilized to validate this charge. The section deals with providing additional copies as needed within six months of the deposition date or subpoena compliance. While records maintenance may be necessary, we often find the $1.00 per page charge applied at this stage. Copies are then provided to applicant’s counsel and other parties at $.20 per page. The section does not indicate the $1.00 charge per page is for capturing the record digitally. That charge is for the first set of copies. While this may be a fine line to walk, the original capture cost also includes the original cost of the first set of copies, not a separate charge. If capture of documents for digital or even paper storage is needed, it is my opinion the original $1.00 per page is excessive.
- Multiple mailing/processing charges – Most of the time we see flat rates for shipping per box. Yet we see copy service companies ship out single page “Certificate of No Records” for the same amount as they would a stack of 300 pages. And we often see multiple mailings occur (different boxes for each location copied instead of combining records into one mailing). Why should a copy service waste unnecessary postage and shipping supplies when they could pack more into a single box?
- Page indexing and pagination – I am aware of no requirement that the records must be organized for shipping or delivery in any other order than that in which they were copied. There is no explanation for why pagination is needed as the party that reviews the record can easily mark or tab it for further reference. Further, indexing serves no purpose other than to potentially make the review of records for applicant attorneys easier. Why should this be the burden of the defendant to pay?
- Summaries – Similar to indexing, a summary is the responsibility of the party seeking the records. Counsel is entitled to review, mark, note, and comment as they choose. It is not a cost the defendant should bear.
- Sequential billing – This practice is difficult to explain. For example, a copy service will assign a job number to the applicant (say “10”) and then for each records location copied, a number is placed after the original job number (10-A, 10-B, etc.). While this may appear to be harmless, I believe it is meant to be confusing to examiners. An examiner often has limited time to check a file to verify payment should be issued and even less time to verify payment has already been issued. If they miss the coding in their paid bills section, they may pay the same invoice twice. Or, they may not pay the invoice, believing it was previously processed.
- Ignoring valid objections or Motions – Until the Motion to Quash is addressed, the service should not be continued. Yet copy services usually proceed with their task regardless of any objection. When payments are timely and properly denied, fees and penalties are added in an attempt to intimidate and inflate costs.
- Multiple copies to the same location – Regulations require service of one copy via one method (paper or electronic) to the location of the requestor. Multiple copies are not to be provided.
- Personal service charges – Gov Code § 26720.9 and § 26721 allow up to $35.00 for personal service. Many service providers charge beyond this fee.
Lien defense and strategy is learned from trial and error as well as knowing your opponent. I believe the biggest advantage defendants have is simply taking liens to trial. A handful of lien representatives handle the majority of liens at many of the WCAB locations across the State. Having had the opportunity to litigate liens up and down California, I see the same faces time and time again. At first, many representatives can be tough, even hostile. But they remember the attorney who is not afraid to fight. They also remember the aggressive examiners. And as with any fight, the more rounds you go, the more likely you are to subdue your opponent.
In addition to fighting the battle to the end, we have many other defense weapons in our arsenal. If you recall, I stated there were two articles on copy services in the Executive. The second article was from a defense perspective and included an interview with a director of marketing and training from a copy service company primarily used by Defendants. She provided a quality discussion on some potential defenses and a scale for payment of services that are appropriate. Her recommendations include objecting early and often and filing your Motion to Quash. She also recommends a rule of thumb of not paying more than twice what you pay your best copy service. To elaborate on two of her recommendations and to add a few more:
- Timely file your objection to the service – In fax or letter form, and I recommend within 10 days of receipt in case the subpoena is not timely or properly served. I always notify the copy service that in addition to the objection, I will be filing a Motion to Quash.
- Timely file your Motion to Quash – The more information you can provide the better. Explain to the WCAB why your motion is relevant, necessary, and what was performed previously to provide records to applicant’s attorney, if possible.
- Scrutinize every bill – I understand this can be a challenge when the mail lands in your in-box one large stack at a time. Processing bad invoices encourages bad behavior.
- Object to the bill in its entirety – If you have properly filed a motion (and I would argue even if you only issued an objection before copying commenced), a complete bill objection may be in order. Explanation for your objection should be thorough. Include a copy of your prior objection and Motion to Quash.
- Issue line-item objections – If you are only objecting to portions of the bill, be specific about what is reasonable and what is not. (See above) Identify what you will pay and what your total payment will be.
- Serve Notice of Hearing paperwork – Even if the lien representative shows up on the official address record, I am amazed at how few lien claimants seem to receive regular mail, especially important mail. If you serve them with a Notice and a Proof of Service and they fail to appear, argue for discovery to be closed, or request a Notice of Intent to dismiss their lien.
- Challenge lien representatives – Argue (or make your attorney argue) the facts of the case and note your prior objections. Do not be swayed from your strong position by false claims of “reasonable” charges, or prior litigation success. I have seen many examples of lien representatives who do not understand the very bills they are arguing about.
- Consider serving medical reports and settlement paperwork well before any hearing – I am always irritated by the lien representative who demands a second lien conference because we did not timely serve medical reporting. It is often a last ditch attempt to “punish” a defendant by forcing them to spend money on another hearing and copy costs.
- Attack delay tactics are used at status/lien conferences – Consider taking a lien to trial if the lien representative tries to delay your case. Do not be afraid to call their bluff. Inform them that due to their actions, they must now spend money in the form of a trial.
- Close discovery – Many lien claimants argue that they do not need to attend MSC’s or status conferences as is required under Labor Code §5502. Per the Flores** decision, they must be present to list stipulations, issues, exhibits and witnesses in the pre-trial conference statement, or risk having their exhibits excluded. If they fail to appear, consider closing discovery as opposed to seeking a Notice of Intent to dismiss their lien.
If you do choose to negotiate, do it from a position of strength. You would be amazed at how many lien representatives have marching orders to simply recover a certain percentage or dollar amount. Challenge the individual charges and stand your ground on charges that simply do not need to be paid. A lien trial is a time and cost consuming venture for the lien claimant as well.
While it is important to remember that some copy services are reasonable, necessary and should be processed, you must always be on the lookout for bills and services that stray from that standard. Above all else, stay focused on the objection process and build a strong defense..then peace will guide the planets (and copy service companies).
* The names of the copy service company and President have been changed and are fictitious. Any reference to an actual person or company is purely coincidental, either based on name, writing, or business practice.
Dora Flores v. ABM Industries, Inc. (ADJ3317042; ADJ2119234)
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