by Stephen Schneider
One of the more controversial aspects of the Copy Service Fee Schedule regulations, otherwise known as Cal. Code of Regs. §9980-9983, is the 30-Day Delay Rule that appears at Cal. Code of Regs. §9982(d)(1). It’s strange that this continues to be controversial in 2022, considering it first appeared in Labor Code Section 5307.9 as part of SB863, back in late 2012, but that’s because the applicant copy service industry remains such a competitive market. Some copy services thumbed their nose at this rule and promised their customers zero delays when getting their records, regardless of what the Labor Code or DWC regulations had to say about it.
Questions are now being asked about this rule because the largest applicant copy service, a company I co-founded and sold in 2012, failed in December 2021. All those loyal applicant law firms are now moving on to new copy service providers such as Gemini. These law firms are being told that their copy orders will be processed in compliance with the 30-Day Delay Rule, and “held” until the Application For Adjudication filing date is at least 30 (plus five days for mailing) days old. It seems that my old copy company had been using a policy of not holding copy orders to incorporate the regulatory delay and instead issued all subpoenas for records immediately upon receipt of the request. Gemini, on the other hand, has been interpreting the plain language of Cal. Code of Regs. Section 9982(d)(1) as requiring a “30-day delay” from the Application filing date and has long been holding their copy orders until said filing date is 30 (plus five days for mailing) calendar days in the past.
So, which copy company’s policy is best supported by the language of the regulation, and is the 30-Day Delay Rule really important to follow? Dan Mora, the CEO of Gemini, contacted me and asked for my opinion on this important matter.
I am not an attorney, so you should not rely on my opinion, however, I will point you to what legal authority exists on this subject (WCAB panel decisions), along with some plain discussion of the language, and I think you will find the answer is solidly clear. Gemini got this right.
THE 30-DAY DELAY RULE
The 30-Day Delay Rule can be found at Cal. Code of Regs. Section 9982(d)(1). Here is a link to the section, online.
The 30-Day Delay Rule can be described as follows: Any copying services provided within 30 days of the applicant requesting to be served with records that are in the employer’s or claims administrator’s possession are not payable. Put another way, if the applicant law office notifies the claims administrator and/or employer in writing that they would like to be served with whatever records are in the employer’s/claims admin’s possession (and are relevant to the claim), that applicant law office must not cause any copying services to be performed for 30 days. This presumably allows the employer/claims administrator to respond to the applicant’s request and serve the records that are currently in their possession.
If the applicant makes no such written request upon the employer or claims administrator for records, then it would appear the section would not apply and no delays are necessary. However, this situation is uncommon, because most applicant law offices include a request to be served with records in their Notice of Representation letter to the opposing side, and they also commonly order employment, payroll and claims records through their copy service. Any of these actions will invoke the 30-Day Delay Rule, since they all include a written request for records that are in the employer’s or claims administrator’s possession and are relevant to the claim.
As a result, the only way to avoid the 30-Day Delay Rule is to not request records in the Notice of Representation and not request employment or claims records from your copy service. I’m doubtful that scenario happens very often in practice, if at all. I could devise a complicated series of steps to get around this delay for the medical records, but it seems much simpler to just comply with the intent of the law and deal with it consistently.
WHY THE APPLICATION FILING DATE IS USED TO START THE TIMER
I mentioned earlier that Gemini uses the Application filing date as the start of the 30-Day Delay Rule. Most applicant law offices want their ordering process from a copy service to be as simple and fast as possible. That means not having to go into the file and dig up important documents to attach to the order, such as the Notice of Representation letter (to prove when the initial request for records was mailed). Gemini reviewed their incoming orders recently and found that they receive the Notice of Representation on a very small percentage of their orders. Without that important key document, Gemini has to make assumptions in order to figure out how and when to proceed in full compliance of all regulations. Either (a) assume the Notice of Rep includes a request for records and was mailed no later than the filing date of the Application for Adjudication or (b) Assume the Notice of Representation does not include a request for records and the copy service should serve a subpoena on the employer and/or claims administrator and then wait the 30-day periodㅡbecause the subpoenas are a written request for records in the employer’s possession and will start the 30-Day Delay Rule. The simplest, most effective and least disruptive assumption is clearly (a), always waiting 30 days from the date the Application was filed before proceeding with the copy order, and then proceeding with all requested services (employment, payroll, claims, and medical records).
With Gemini’s policy on the 30-Day Delay Rule, applicant law offices do not need to attach their Notice of Representation letter to their copy orders, and they do not need to hold their copy orders until the Rep letter was served more than 30 days prior to placing the copy order. The Gemini policy is simple and easy to follow: File the Application and serve the employer and claims admin with both the Application and the Notice of Representation letter and immediately order records from Gemini. The law office can then rest assured that Gemini will not begin any copying services until the 30-Day Delay Rule has been applied and the services are in full compliance with Labor Code Section 5307.9 and Cal. Code of Regs. Section 9982.
WHAT IF THE EMPLOYER OR CLAIMS ADMIN SERVES RECORDS
IN RESPONSE TO THE INITIAL REQUEST?
The best outcome when the service of records is made timely on the applicant law firm in response to the Notice of Rep letter is that the law firm will contact their copy service and cancel their pending request for copying the same records. However, the probability that all the records the applicant law firm was expecting are actually received timely from the opposing side is small. What is much more likely is that the claims administrator will serve “some records,” meaning the records they “felt” the applicant was entitled to, rather than all records the applicant requested that their copy service use a subpoena to gather. If the copy service continues on and fills the copy order from the applicant law firm only to end up in a payment dispute with the claims administrator, the copy service need only ask the workers’ compensation judge to compare what was served on the applicant law firm voluntarily with what the copy service provided under the subpoena. All it takes is a few additional and relevant pages copied by the copy service to overcome the objection that the records were already served.
THE WCAB’S POSITION ON THE 30-DAY DELAY RULE
While the industry does not currently have published opinions as authority on this controversial subject, we do have two WCAB panel cases which state the Board’s position pretty convincingly. See Shawn Jenei v. Casa Loma Homeowners, ADJ11046200, dated and filed October 29, 2018. And see Rodolfo Marquez v. Sunlight Supply Inc., ADJ11171239, dated and filed March 20, 2021. Both cases involved my old copy company and stated that when a request is made by the applicant for relevant records, any copying services provided within 30 days of that request are not payable. Period. It is interesting to note that the very company that was pushing the concept that the 30-Day Delay Rule was unnecessary had tried, twice, to convince the Board of their legal argument and failed both times. You don’t have to take my word for this, you can read the commissioners’ position on this subject. Those who wish to continue to ignore the 30-Day Delay Rule can wait for a published or en banc decision on this matter, but the opinion of the current Board seems pretty obvious already.
Applicant law firms and their copy services should comply with the clear language and intent of the labor code, regulations and WCAB opinions when incurring medical legal expenses. Deliberately operating outside of this authority only causes unnecessary delays at the district offices that have to hear the inevitable disputes and puts pressure on state regulators to “trim” the rights of injured workers more and more. In the case of the 30-Day Delay Rule appearing in Labor Code Section 5307.9 and Cal Code of Regs. Section 9982, Applicant law firms should consider making a request for records in their Notice of Representation letters so that the subpoenas for employment or claims records do not invoke the statutory delay, and they should be sure to serve the Notice of Representation no later than their filing date of the Application for Adjudication of Claim. Applicant copy services can then use the Application filing date as the date of the initial request for records (assuming the Notice of Representation was served with or before the Application filing) and always delay all copy and related services for 35 days from the Application filing. Following this rather simple process keeps everybody in the clear and resultantly copy services will not need lots of evidence from their customers in order to collect their fees during medical legal disputes.
Stephen Schneider is owner of DocuCents and ScanFiles. Stephen resides in the Los Angeles area.