If we took a poll, 100 out of 100 employers, administrators and defense attorneys would likely concur as to the level of extreme frustration they have faced in defending against unreasonable and exorbitant copy service liens. It’s no wonder, considering what little help Labor Code sections 4620 and 4621 have provided. While the code sections limit fees to those that are “reasonable and necessary,” it has been nearly impossible to come to a consensus over what “reasonable” really means. And, without strong, consistent legal authority, there has been little basis to ascertain the true value of such services.

The community has been vocal about the need for a fee schedule, against which copy service fees and liens can be measured, to produce reasonable results and detract from long and expensive litigation, or worse, uncomfortably high settlements. At long last, the Division of Workers' Compensation is delivering some much needed guidelines.

The DWC has prepared a proposed fee schedule for "copy and related services." While service providers are currently billing hundreds of dollars (sometimes thousands) or just one set of subpoenaed records, the proposed fee schedule would set flat fee values for each service that comes along with an order for records (see below for more detail). The highly anticipated law is currently in its final stages with the Office of Administrative Law and officially took effect on July 1, 2015.

The hero legislation is centered on a flat fee schedule, which covers “copy and related services” for records relevant to an injured worker's claim. The text specifically defines “Copy and Related Services” as “all services and expenses that are related to the retrieval and copy of documents and are responsive to a duly issued subpoena or authorization to release documents for a workers' compensation claim.” Sounds broad, right? Here is how it is broken down:

1. $180 flat fee for a set of records, from a single custodian of records, which includes mileage, postage, pickup and delivery, phone calls, repeat visits to the record source and records locators, page numbering, witness fees for delivery of records, check fees, fees for release of information services, service of the subpoena, shipping and handling and subpoena preparation.
2. $75 flat fee in the event of cancellation after a subpoena or request for records by authorization has been issued but before records are produced, or for a certificate of no records.
3. $20 for records obtained from the Employment Development Department.
4. $30 for records obtained from the Workers' Compensation Insurance Rating Bureau.

In addition to the flat fees, described above, the regulation calls for the following separate fees:

1. 10 cents per page for copies of more than 500 pages.
2. $5 for each additional set of records in electronic form ordered within 30 days of the subpoena, or $30 if ordered after 30 days and the copy is retained by the registered photocopier. If the injured worker requests an additional set of records in electronic form, ordered within 30 days of the subpoena, the claims administrator is liable for one additional set of records in electronic form for no more than $5, if ordered within 30 days, and for no more than $3 if ordered after 30 days and copy is retained by the registered photocopier. All other additional sets of records are payable by the party ordering the additional set.
3. $10.26 per sheet and $3 per compact disc for X-rays and scans.

For services that are covered by a contract between a claims administrator and copy service provider, the terms of the contract will control. Additionally, no payment will be made for copy and related services that are provided within 30 days of a written request to the claims administrator or employer by an injured worker or his representative for copies of records in the claims administrator or employers’ possession or for records provided by any person or entity which is not a registered professional photocopier.

The claims administrator and employer will not be liable for payment of records previously obtained by subpoena or authorization by the same party and served from the same source, unless good cause is shown, which can include new counsel seeking duplicate records for review.

Finally, copy service providers will be required to provide Tax ID Numbers, professional photocopier numbers and claim numbers on their bills.

In addition to creating a copy service fee schedule, the Regulation will also modify the DWC’s charges for documents. All transcripts up to 33 pages will be charged at a flat fee of $100 with an additional charge of $3 per page for transcripts that are longer than 33 pages. The DWC will also increase the hourly fee for Public Records Act requests (requiring research) from $40 to $85.

Once the fee schedule is approved and effective, future billing disputes will be subject to independent bill review rather than through the lien process at the Workers’ Compensation Appeals Board. This means we can expect reduced litigation costs and, eventually, reduced photocopy bills.

Nedda Safi is an attorney with Grancell, Stander, Reubens, Thomas and Kinsey, a workers' compensation defense firm with 10 offices in California. This column was reprinted with permission from its client newsletter.