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Chapter 4.5. Division of Workers' Compensation
Subchapter 2. Workers' Compensation Appeals Board--Rules and Practice Procedure
Article 9. Evidence and Reports

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§10608. Filing and Service of Medical Reports and Medical-Legal Reports.


(a) Service of all medical reports, medical-legal reports, and other medical information on parties and lien claimants shall be made in accordance with the provisions of this section. For purposes of this section, the following definitions shall apply:

(1) “Lien claimant” shall mean a person or entity that: (A) has invoked the jurisdiction and authority of the Workers' Compensation Appeals Board by filing a lien claim, including a claim of costs, or a petition for costs; and (B) has previously paid any lien filing or activation fee required by Labor Code sections 4903.05 or 4903.06.

(2) “Medical information” shall include but is not limited to: (A) medical reports; (B) medical-legal reports; (C) deposition transcripts (including but not limited to depositions of physicians) containing references to medical reports, medical-legal reports, medical treatment, medical diagnoses, or other medical opinions; (D) medical chart notes; and (E) diagnostic imaging as defined in section 10603(a)(2).

(3) “Non-physician lien claimant” shall mean a lien claimant that is not defined as a “physician” by Labor Code section 3209.3 and that is not an entity described in Labor Code sections 4903.05(c)(7) and 4903.06(b).

(4) “Party” shall mean: (A) an injured employee; (B) the dependent of a deceased injured employee; (C) a party defendant named in the application or other case opening document or subsequently joined; or (D) the attorney or non-attorney representative of any of the foregoing. For purposes of this section only, “party” shall not include any other person or entity, even if it would otherwise be deemed a “party” under section 10301(dd)(4), (5), or (6), except as provided by subdivision 10608(c)(8)(D)(ii)(II)).

(5) “Physician lien claimant” shall mean a lien claimant defined as a “physician” by Labor Code section 3209.3, an entity described in Labor Code sections 4903.05(c)(7) and 4903.06(b), or the attorney or non-attorney representative for any such physician or entity. For purposes of this section, an attorney or non-attorney representative shall not include any person or entity to whom a physician lien claimant's lien has been assigned, either as an assignment of all right, title, and interest in the accounts receivable or as an assignment for collection.

(b) Service of Medical Reports and Medical-Legal Reports on a Party or a Physician Lien Claimant

The provisions of this subdivision shall apply to the service of medical reports and medical-legal reports on a party or on a physician lien claimant.

(1) After the filing of an application or other case opening document, if a party or lien claimant is requested by another party or a physician lien claimant to serve copies of medical reports and medical-legal reports relating to the claim, the party or lien claimant receiving the request shall serve copies of the reports in its possession or under its control on the requesting party or physician lien claimant within 10 calendar days of the request, if not been previously served. The party or lien claimant receiving the request shall serve a copy of any subsequently-received medical report and medical-legal report on the party or physician lien claimant within 10 calendar days of receipt.

(2) At the time of the filing of any Declaration of Readiness to Proceed or Declaration of Readiness to Proceed to Expedited Hearing, the filing declarant shall concurrently serve copies of all medical reports and medical-legal reports relating to the claim that have not been previously served and that are in the possession or under the control of the filing declarant on: (A) all other parties, whether or not they have previously requested service; and (B) all physician lien claimants that have previously requested service. The filing declarant also shall serve a copy of any subsequently-received medical report or medical-legal report relating to the claim on all other parties and each physician lien claimant within 10 calendar days of receipt.

(3) Within 10 calendar days after service of any Declaration of Readiness to Proceed or Declaration of Readiness to Proceed to Expedited Hearing, all other parties and lien claimants shall serve copies of all medical reports and medical-legal reports relating to the claim that are in their possession or under their control, and that have not been previously served, on: (A) all other parties, whether or not they have previously requested service; and (B) all physician lien claimants that have previously requested service. The other parties and lien claimants also shall serve a copy of any subsequently-received medical report or medical-legal report relating to the claim on the requesting party or physician lien claimant within 10 calendar days of receipt, consistent with subdivisions (b)(3)(A) and (b)(3)(B).

(4) If, at any time after the periods specified in subdivisions (b)(1), (b)(2) and (b)(3), a physician lien claimant initiates a request for service of medical reports and medical-legal reports, all parties and other lien claimants shall serve the requesting physician lien claimant with copies of all medical reports and medical-legal reports relating to the claim that are in their possession or under their control, and that have not been previously served, within 10 calendar days of receipt of the request. The parties and other lien claimants also shall serve a copy of any subsequently-received medical report or medical-legal report relating to the claim on the physician lien claimant within 10 calendar days of receipt.

(5) All medical reports or medical-legal reports relating to the claim that have not been previously served shall be served on all other parties and physician lien claimants upon the filing of a compromise and release or stipulations with request for award, unless the rights and/or liabilities of those parties or physician lien claimants were previously fully resolved.

(c) Service of Medical Reports, Medical-Legal Reports, and other Medical Information on a Non-Physician Lien Claimant

The provisions of this subdivision shall apply to the service of medical reports, medical-legal reports, or other medical information on a non-physician lien claimant.

(1) If a party or lien claimant is requested by a non-physician lien claimant to serve a copy of any medical report, medical-legal report, or other medical information relating to the claim, the party or lien claimant receiving the request shall not serve a copy on the non-physician lien claimant unless ordered to do so by the Workers' Compensation Appeals Board.

(2) A non-physician lien claimant shall not subpoena any medical information. Any subpoena that, in whole or in part, requests medical information shall be deemed quashed in its entirety by operation of law.

(3) A non-physician lien claimant shall not seek to obtain any medical information using a waiver, release, or other authorization signed by the employee. Any such waiver, release, or other authorization shall be deemed invalid by operation of law.

(4) A non-physician lien claimant may petition the Workers' Compensation Appeals Board for an order directing a party or other lien claimant in possession or control of any medical report, medical-legal report, or other medical information to serve a copy of that report or information, or a particular portion thereof, on the non-physician lien claimant.

(5) For each document, or a portion thereof, containing medical information that is sought, the petition shall specify each of the following:

(A) the name of the issuing physician, medical organization (e.g., a group medical practice or hospital), or other entity and the date of the document containing medical information, if known, or if not known, sufficient information that the party or lien claimant from whom it is sought may reasonably be expected to identify it; and

(B) the specific reason(s) why the non-physician lien claimant believes that the document containing medical information, or a portion thereof, is or is reasonably likely to be relevant to its burden of proof on its lien claim or its petition for costs.

(6) When the petition is filed, a copy shall be concurrently served on the injured employee (or the dependent(s) of a deceased injured employee) and the defendant(s) or, if represented, their attorney or non-attorney of record. In addition, if the medical information is alleged to be in the possession or control of a non-party or another lien claimant, a copy of the petition shall be concurrently served on that non-party or other lien claimant or, if represented, its attorney or non-attorney of record.

(7) The caption of the petition shall identify it as a “Petition by Non-Physician Lien Claimant for Medical Information.”

(8) Disposition of a Petition by Non-Physician Lien Claimant for Medical Information:

(A) The Workers' Compensation Appeals Board, in its discretion, may take whatever action on the petition it deems appropriate, including but not limited to: (i) denying the petition if it is inadequate on its face; (ii) issuing a notice of intention to order that the non-physician lien claimant is entitled to service of all, some, or none of the medical information sought; or (iii) setting the petition for a hearing, either without or after issuing a notice of intention.

The Workers' Compensation Appeals Board shall serve or cause to be served each notice of hearing or notice of intention pertaining to the petition on the petitioner and on each person or entity listed in subdivision 10608(a)(4).

(B) When issuing a notice of intention or setting a hearing, the Workers' Compensation Appeals Board may order that the party or lien claimant alleged to be in possession of the medical information shall send it to the personal and confidential attention of the assigned workers' compensation judge, in a sealed envelope lodged by mail or personal service only, for in camera review. Medical information so lodged shall not be deemed filed or admitted in evidence and shall not become part of the record.

(C) If a notice of intention is issued, it shall issue within 15 business days after the filing of the petition and it shall give the petitioner and any adverse party 10 days to file a written response.

(D)(i) If a hearing is set after the issuance of a notice of intention, the hearing date shall be within 45 days after the lapse of the period for the timely filing of a response.

(ii) If a notice of intention is not issued and: (I) the non-physician lien claimant is a “party” within the meaning of section 10301(dd)(4), (5), or (6), a hearing shall not be set unless a declaration of readiness is filed; (II) the non-physician lien claimant is not yet a “party” and is therefore precluded from filing a declaration of readiness by section 10250, the hearing date shall be within 60 days after the petition was filed.

(E) The Workers' Compensation Appeals Board shall serve any order disposing of the petition on the petitioner and on each person or entity listed in subdivision 10608(a)(4). Designated service shall not be used for such service. If the Board orders that the non-physician lien claimant is entitled to service of medical information, it may also order that a portion or portions of the medical information shall be redacted before it is served on the non-physician lien claimant.

(d) Any violation of the provisions of this section may result in sanctions, attorney's fees, and costs under Labor Code section 5813 and Rule 10561.

Note: Authority cited: Sections 133, 4903.6(d), 5307, 5309 and 5708, Labor Code. Reference: Sections 4903.6(d), 5001, 5502, 5703 and 5708, Labor Code; and Sections 56.05 and 56.10, Civil Code.

HISTORY

1. Repealer and new section filed 12-23-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 93, No. 52).

2. Amendment of section heading, section and Note filed 12-19-2002; operative 1-1-2003. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 2002, No. 51).

3. Amendment of section heading, section and Note filed 11-17-2008; operative 11-17-2008. Submitted to OAL for printing only (Register 2008, No. 47).

4. Amendment of section heading, section and Note filed 9-23-2013; operative 10-23-2013. Submitted as a file and print by the Workers' Compensation Appeals Board pursuant to Government Code section 11351 (Register 2013, No. 39).


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