Frequently Asked Questions

WCAB Subpoena: Noticing
Q.  What are the subpoena noticing requirements?
A.   Per Labor Code 4055.2, any party who subpoenas records in any proceeding under this division shall concurrent with service of the subpoena upon the person who has possession of the records, send a copy of the subpoena to all parties of record in the proceeding.
Q.  Are their statutory hold periods applied, as with civil subpoenas?
A.   The above Labor Code does not imply any hold on the subpoena, since it instructs the issuing party to serve the subpoena 'concurrent' with mailing a copy to all parties.
Q.  Does the subpoena require that a 'boldface notice to consumer' be mailed, as with civil subpoenas?
A.   Again, the above Labor Code does not indicate such, however, some attorneys interpret the D.I.R. rule 10530 to mean that it is inclusive of the CCP 1985.3 requirement, but this has not been industry standard as the Proof of Service by Mail is sufficient under Labor Code 4055.2.
WCAB Subpoena: Compliance
Q.  Once the custodian/witness is served the subpoena, how much time does the custodian have to comply?
A.   There is no instruction in Labor Code for compliance time. Rather, the face of the subpoena instructs the custodian that they may satisfy compliance by mailing the requested records within 10 days of the date served.
Q.  Can the records be copied prior to the assigned production date on the subpoena?
A.   The above sentence (shown on the face of the subpoena) does imply this, being that it states the custodian may mail records 'within' 10 days of service. Therefore, industry standard has been to release the subpoenaed records as soon as they are received/copied.
WCAB Subpoena: Witness Fees
Q.  What is the witness fee allowed by law?
A.   Labor Code 131 refers the reader to use civil guidelines for allowable witness fees for travel/appearance, and/or production of records. See CA. Evidence Code Section 1563, which allows for a $15.00 witness fee on each subpoena served, plus reasonable costs to produce documents, as well as a travel and mileage fee for appearance.
Q.  What can be done about witnesses who charge more than the standard $15.00 fee?
A.   The attorney may challenge in court any fees to be considered excessive, outside of the 'reasonable costs' section of the code.
WCAB Subpoena: Privileged Records & HIPAA
Q.  Are there records that are not subject to subpoena?
A.   Yes. Some examples are:
- Attorney-client communications, or work product.
- Insurance claims work product.
- Psychotherapist-patient communications.
- Most records maintained by a government agency.
Q.  Is there any way to acquire these types of records?
A.   Not where attorney and insurance claim privileges are concerned. Those records are not discoverable.
Records related to an individual's mental health treatment will require a signed authorization from the patient, especially in view of new HIPAA laws. However, if the subject has placed their mental condition as reason for the action, you may compel those records under CA. Evidence Code 996.
As for records maintained by government agencies, each agency requires its own release form be signed before disclosing records they deem to be confidential in nature.
Q.  How much of an impact does the federal HIPAA law have on the WCAB subpoena?
A.   Recent revisions to HIPAA did not intend to disrupt each state's Workers' Compensation laws and practices in place. As such, they constructed the following code section with respect to WCAB subpoenas.
CFR 45 Sec. § 164.512 (l) Standard: disclosures for workers' compensation.
A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers' compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.