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Workers’ Comp: the Best of Both Worlds

I kicked off this series by detailing my argument for why physician quality is the single most important aspect of a claim — efficient and effective care is far more impactful than discounted care. Now, I want to expand on this idea by delving further into the relationship between the preferred provider network (PPO) and the exclusive provider network (EPO).

First, let’s understand what is meant by EPO. The narrow definition of the term is a network that is the exclusive option for providers. In workers’ compensation, it most accurately describes programs like the MPN in California, the HCN in Texas or the PPP in Illinois. These are all examples of models where the insurer or employer can define an exclusive list of providers from which an injured worker must choose their doctors. In a broader sense, I think of the EPO as the listing of doctors and ancillary providers that are going to be included in elite programs. This includes the list of doctors you would want to use every time you create a workplace poster or the list of doctors used in any channeling program like initial triage. Think of it as the doctors you want to use any time you have the opportunity to either direct, contain or influence selection of a provider. Ideally, the goal of an EPO should be selecting the best available providers to drive improvements in outcomes.

And improved outcomes should be at the heart of the relationship between PPO and EPO. Over the past decade, outcomes-based networks have become a well-adopted and proven model for dramatically improving a claim population’s overall costs, lost time and litigation, but many organizations struggle with the roll of PPOs in this model. They are also curious as to how to leverage the best of both worlds — PPO and EPO — to drive better outcomes and better pricing moving forward.

Separating “Who” and “How”

The idea of using both PPOs and EPOs to improve outcomes has been somewhat confounding to date. As discussed in Part One of this series, the primary goal of the PPO is to contract with as many providers as possible to drive the best purchase prices for medical and ancillary services. In the absence of any controls over care, the PPO serves its customers best by including poor-performing doctors, courtesy of more available discounts. With controls (and strategies to leverage those controls) for outcomes in place, however, the game changes, and the roll of the PPO needs to be reconsidered.

See also: Why So Soft on Workers Comp Fraud?  

In this environment, PPOs and EPOs coexist in an important balance. The EPO needs to determine “who” to work with, and the PPO provides the mechanism for “how” you work with them.

Consider the following table:

Hopefully, it quickly becomes clear that the “best of both worlds” model is not only achievable but also makes things like vendor selection and program management easier.

Under this framework, the value proposition and role of the PPO is clarified: The PPO is the source of doctors who have been properly vetted through credentialing practices and contracted to provide care, typically at a favorable price. This function could be offloaded to your bill review vendor if it is positioned to resell networks, or you can take on the task of deciding which combination of PPOs gives you the best bench to select doctors from in each jurisdiction. On a case-by-case basis, you may find barriers with a certain jurisdiction or PPO vendor, so some research may be necessary to determine how to manage selecting a subset of providers from a list of preferred providers.

Once you’ve built your bench of “available” doctors, the next step is to select the doctors that are going to be invited into the elite program, or EPO. The most effective method for selecting doctors for an EPO is outcomes-based. Depending on the program, it may be necessary to have processes and documentation for decisions related to the inclusion or removal of doctors from your elite programs. This is more important in situations where the decision to exclude a provider will prevent them from being able to treat your injured workers. Think MPN exclusion. It’s not really an issue when you are just selecting three doctors to be on a workplace poster.

The core message is: Think differently about the purpose of your PPOs; they have a specific value proposition when you are working with an EPO strategy. Use the PPO to build your bench of available doctors, and use your EPO to decide which doctors are the ones you want your injured workers to use.

See also: Healthcare’s Lessons for Workers’ Comp  

The age of accountable care is upon us — in both comp and group health. Data science and access to big data has enabled a level of accountability that did not exist a decade ago. If you do not have a strategy for using quality as a primary factor in determining who should be seeing your injured workers, you are missing the boat. Having a framework for how to separate who you work with (EPO) from how you work with them (PPO) helps get you started on the path to an outcomes program or provides an easier perspective for how you manage and improve an existing program over time.

Next Steps

Once you have your framework in place, you need to determine the right balance of quality and quantity. To do this, quantify the difference between good and bad doctors. There are a lot of tools available to help you do this. Then, determine how many doctors you need of each type in a given geography to fully service workers. Next, eliminate those doctors whose outcomes don’t make the cut from your network. As long as you have enough good doctors available who can also provide a discount, there is zero benefit to having a deep bench. Once you make smart cuts, emphasizing quality over quantity, watch your savings and worker satisfaction with their care dramatically improve.

Next up: outcomes strategies for each type of jurisdiction. In Part Three of this series, I will dive into three types of jurisdictional models and look at the differences between states. Stay tuned!

This article was first published in Claims Journal.

What Matters in Workers’ Comp

Is this claimant supposed to be off work? Did I get enough discount on the services? Were those services even necessary? I would argue that the question everyone should be asking instead is: Who is your doctor? After all, the physician is the person who sets all of the other wheels in motion — wheels that influence things from quality of care to how long an employee is out of work and the ultimate cost of an injury.

Throughout the past 15 years that I’ve spent managing networks and working with top companies developing custom solutions, one thing has consistently held true: Physician quality matters … A LOT. In fact, provider quality is shown to make the single greatest impact on a claim. It’s something that shouldn’t be overlooked, and yet all too often it is.

Numerous studies have shown that good doctors make a difference. There is a huge discrepancy in claims associated with doctors who score well on an outcomes basis versus those who don’t. The average costs associated with a problematic D- or E-rated physician, compared with a rock star A- or B-rated doctor, are astounding when you really dig into the data.

It is even more profound when you factor in case mixing and adjust results based on severity or type of claim.

See also: The State of Workers’ Compensation  

A wealth of information now exists on physician quality, and many different models, from simple to complex, can provide useful insights into which doctors can be associated with better outcomes. Carriers and employers should apply this data to think more aggressively about their networks.

The PPO Dilemma

Before we get there, however, let’s look at what’s going on with preferred provider organizations (PPOs). PPOs are the most common strategy used to control costs in our market. A PPO’s value comes from providing a negotiated discount on a medical encounter. Once you have entered into business with the PPO, its primary revenue source comes from matching your bills to a pre-negotiated discount — and the PPO gets more matches by contracting with more doctors. Therefore, if the PPO only contracts with the doctors who show the best outcomes, the PPO loses significant amounts of revenue any time bills come in from uncontracted doctors who don’t perform as well in outcomes.

As such, all discount networks must contract with as many doctors as possible to ensure they don’t lose revenue by missing a hit on a bill. A perfect PPO would include 100% of doctors who pass the base qualifications of credentialing. But, as shown in the prior illustration, there is a huge difference in outcomes between the top half and bottom half of the PPO’s doctors.

I don’t fault PPOs for this — PPOs do offer a clear value in reducing purchase costs per episode. They also must contend with multiple factors from jurisdiction to jurisdiction that will always limit how choosy they can be. There is a role to be played by discount networks, but that role is not the full picture of how to bend the curve on claim costs.

“Savings” Don’t Always Reduce Costs

Here is a simple concept: If a cheap pair of shoes costs 30% less than a high-quality pair, I might save money on the initial purchase, but, if the cheaper pair of shoes needs to be replaced twice as often, my savings on each transaction doesn’t lower my total shoe cost.

Applying this logic to medical care, let’s look at two patients — one going to a discounted doctor and one going to a full-fee-schedule doctor. Let’s assume a typical ratio of 7:5 visits between high-scoring and mid-tier doctors (the real difference is typically higher). Patient A goes to an in-network doctor selected at random from an approved list of providers that generates a 5% savings off each bill. Patient B is sent to a doctor with a high outcome score but no discount. The average bill from each doctor is $100. After the first visit, Patient A has cost $95, and Patient B has cost $100. The payer for Patient A saved $5, and the payer for Patient B has saved $0. By the time Patient A has been to his/her seventh and final visit, medical care cost $665, with PPO savings of $35. Patient B’s care wrapped up after five visits, costing $500, with $0 in PPO savings. This showcases the problem of using percent of savings as a metric – longer duration and $165 more in total medical costs reflects $35 in savings over Patient B. The metric is flawed because the more you spend the more you save.

The point to consider is that network savings are the shiny object that distracts from the difference in total costs. I am not arguing against leveraging savings where available; rather, I want to underscore that quality at a higher price point can significantly outpace discounts when you look at the total cost of a patient in any market.

All health markets suffer from the cost of care that requires too many visits or the additional costs of a second necessary procedure to repair a bad surgery. In workers’ comp, this is exponentially compounded when you factor in the costs of temporary disability as a result of poor recovery and permanent disability stemming out of failed procedures.

The Path Forward

The best way to start down the path forward is to separate the decision about which doctors to work with from how to work with them. The who should be determined by some level of quality metric while the how is figuring out which PPO or contractual relationships get you the best access to doctors who will get you the best results. This means you should first find the doctors who perform well on your chosen metrics, and then look at the PPO or combination of PPOs that get you contractual access. It works in the opposite flow as well; you can look at the total population of doctors available through your network vendors, then pick who you want to work with from that list.

See also: Even More Tips For Building A Workers Compensation Medical Provider “A” Team  

In part two of this series, I will go into the concept of right-sizing networks and the relationship between PPOs and exclusive provider organizations (EPOs). Pick the doctor, and then figure out which network or combination of networks provides access. It may require a little more work and data science on the front end, but the outcome is well worth it.

As first published in Claims Journal.

Tornadoes: Can We Stop the Cycle?

Nearly every severe weather season, families in Oklahoma lose their homes — or even their loved ones — to a devastating tornado. Year in and year out, the insurance industry helps the victims rebuild their homes and their lives.

When insured Oklahomans replace lost homes, their new homes will be constructed according to existing building codes. When the next devastating tornado hits, the cycle repeats itself. But what if we could stop the cycle? While we can’t stop tornadic activity, we can build homes that are more tornado-resistant. The city of Moore, Okla., a community all too familiar with rebuilding, is committed to doing just that. And I believe the entire state should follow its lead.

A Tested Community

Moore experienced three significant tornadoes in less than 15 years, including the May 3, 1999, tornado that killed 44 people and caused an estimated $1 billion in damage. The May 8, 2003, tornado caused $370 million in damage, but there was no loss of life. The May 20, 2013, tornado killed 24 people and injured at least 200 more. There, property damage from the 17-mile long swath included an estimated 1,150 destroyed homes; the economic loss was estimated at $2 billion.

Breaking the Cycle

 Less than a week after the 2013 Moore tornado, a team of professors, scientists, civil engineering students and professional engineers conducted a reconnaissance trip to the disaster zone. Their goal was to investigate the tornadic impact on buildings and homes. They discovered homes recently built to higher-quality construction standards sustained less damage than homes built to a lesser standard.

Chris Ramseyer, OU associate professor of civil engineering, later presented the team’s findings to the Moore City Council. Ramseyer recommended the council modify the city’s residential building code to lessen the impact from tornadoes. The changes, Ramseyer said, would make homes significantly stronger while only raising the cost of construction 1-2%. The council voted unanimously to approve the new building code.

Embracing Recommendations

The new standards require building techniques that allow homes to withstand winds up to 135 miles per hour, rather than the old standard building requirements of 90 miles per hour. The new code requires roof sheathing, hurricane clips or framing anchors, continuous plywood bracing and wind-resistant garage doors. Engineers say a wind-resistant garage door is important because once it is breached, the rest of the home is extremely vulnerable.

While EF-5 tornadoes inflict the most catastrophic damage with winds up to 200 mph, 95% of tornadoes are rated EF-2 (or 135 mph) and below. Even in Moore in 2013, 88% of the damage was caused by wind speeds rated EF-2 or lower. If those homes had been built according to Moore’s new building code, 1,012 of 1,150 damaged homes would have withstood the destructive forces experienced that day.

It’s Time to Take Action

Since 1989, Oklahoma has experienced 1,575 tornadoes that have resulted in almost $32 billion in insured losses. If we assume 88% of those losses fall within the EF-2 or lower wind speed, the loss then falls to $3.84 billion. As we move forward, I will advocate the adoption of the Moore fortified home construction standard as our state standard for new home construction.

Insurance policies require that replacement construction meets existing code. If Oklahoma law requires fortified construction techniques, then insurance companies must cover those tougher requirements. More importantly, a stronger home would be a source of comfort to those who have been victimized by tornadoes.

For our industry and for our neighbors, it’s a win-win.

Healthcare’s Lessons for Workers’ Comp

The healthcare industry is going through seismic changes today as it tries to control costs while providing the best care possible to all patients. In workers’ compensation, the changes in healthcare are affecting us in ways we may not recognize. It behooves us to examine what’s occurring on the broader stage of healthcare and what we might learn from the great healthcare experiment that will help us improve workers’ compensation.

During the recent National Workers’ Compensation & Disability Conference (NWCDC) in Las Vegas, a panel of workers’ compensation professionals comprising me, Kimberly George (senior vice president and senior healthcare adviser of Sedgwick Claims Management Services) and Lisa Kelly (senior workers’ compensation manager for Boeing), discussed this very topic: healthcare transformation and how it can help workers’ compensation achieve better outcomes and risk management.

What is happening in healthcare that can affect workers’ compensation?

  • The drive to accountable care. This term refers to providers being “accountable” for the outcomes of the healthcare they deliver – not just for providing the services. “Accountable care organizations” of providers have been created and have also given rise to other configurations such as medical homes – centralizing patients’ care through the primary care physician.
  • Integration of care. There is broad recognition that when services are integrated between facilities, specialties and technology, it is finally possible to deliver truly coordinated care and reap the benefits of improved quality, safety and efficiency. With integrated care, from the onset of a patient’s health episode, all clinical teams are able to communicate, monitor and track the patient’s progress.
  • Pay-for-value versus pay-for-service. Healthcare payers are shifting to payment models that reward higher-quality care and better outcomes, vs. the old fee-for-service model that paid for each transaction.

While there is no indication that our state-mandated workers’ compensation system is moving toward a pay-for-value model at this point, there is a growing awareness and movement toward recognizing the value of integrating care with high-performing physicians and linking services through technology and care coordination to achieve a more efficient and effective treatment plan and a faster return-to-work. It is this area in which we can immediately move workers’ compensation medical management forward. Indeed, that movement is already occurring.

Curing the Patient, Curing the System

Traditionally, workers’ compensation focuses on getting injured workers to the closest provider, instead of the one that delivers the best patient experience and produces the best outcomes. For years, payers have wondered, “Who are the best doctors, and how do I get my injured workers to them?”

Physician scorecards (measuring the outcomes through the life of a claim tied to the treating physician) provide the answer.

Physician scorecards identify physicians who produce superior outcomes at less cost. During a five-year period, a Harbor Health Systems program found that physicians with superior outcomes reduced medical costs by an average of 20%. Previous studies have shown that treatment by these physicians also shortens the duration of the claim and reduces indemnity costs.

The discussion at NWCDC shared the latest data about the results from using these best-in-class physicians, and what we have discovered matters:

  • Recent results document that the higher-ranked physicians produce significantly lower duration of claims, lower claims costs, lower litigation rates, fewer TTD (temporary total disability) days, lower indemnity costs and lower reopening rates.
  • There is a striking difference between one-star physicians and five-star physicians within the workers’ compensation industry.
  • One-star primary care physicians (lowest score being one, highest score being five) had an average cost of $244,246 per claim, while five-star physicians had reduced the cost to $15,196 per claim. This data supports the concept that getting appropriate treatment faster and eliminating unnecessary care saves money on the claims side while getting an injured worker recovered and returning to work faster.
  • With primary care physicians treating injured workers, the average duration of a claim (in days) for five-star physicians was 263; for one-star primary care physicians, the average claim duration amounted to a staggering 2,389 days.
  • The difference in indemnity costs was eye-opening, as well: With five-star primary care physicians, indemnity costs were approximately $5,433. With one-star physicians, indemnity costs skyrocketed to $75,829.

What’s Next?

The ability to use the best physicians for injured workers and to link together superior providers throughout the continuum of care, integrated by technologically enabled communications, is the new goal for workers’ compensation.

The technology now exists to accurately and effectively measure claims outcomes by physician, to get injured workers to see these physicians quickly, to link rapidly with best-in-class ancillary providers and to power the systems to keep the care plan on track for a fast, safe recovery.

Mere cost containment is no longer enough. Workers’ compensation professionals can and must work together to achieve better outcomes – for our organizations and, most importantly, for injured workers. If we focus on curing the patient, we will cure the system, as well.

Discovery Rights for Workers’ Comp

What independent discovery rights do parties have in a contested workers’ compensation claim in California?

The system is so complex that foundational education about discovery rights is required to improve and advocate for proper public policy and behavior by participants. This article is offered as a means to educate all parties about their discovery rights.

The law and the courts have stated that each party is entitled to a complete, accurate and documented record of all aspects of their case. This includes employment records, medical reports, accident records, claim files, etc.

The right to obtain, review and prepare the record for any legal action is performed by discovery. Discovery can be defined as processes used for obtaining information and copies of all legally relevant documents between parties or non-parties in a court proceeding as a legal requirement of the courts, before trial. The court in Fairmont Ins. Co. v. Superior Court, (2000) 22 Cal.4th 245 defined what happens if the right of discovery is not afforded parties. It states: “Without an opportunity for discovery as of right, parties would face substantial barriers to effective trial preparation, with results inimical to the overall purpose of the discovery statutes to reduce litigation costs, expedite trials, avoid surprise, and encourage settlement.”

The Federal Rules of Civil Procedure (1938) have been updated and annotated by James William Moore as well as numerous judges, lawyers and scholars and are the most referred to rules of legal procedure. Moore’s Federal Practice (1997), 3rd Ed., vol. 4, pp. 1014-1016, lists what discovery is intended to accomplish:

— to give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury;
— to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses;
— to make available, in a simple, convenient and inexpensive way, facts that otherwise could not be proved except with great difficulty;
— to educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements;
— to expedite litigation;
— to safeguard against surprise;
— to prevent delay;
— to simplify and narrow the issues;
— to expedite and facilitate both preparation and trial.

Thus, the scope of permissible discovery is one of reason, logic and common sense. In Glenfed Dev. Corp. v Superior Court, (1997) 53 CA 4th 1113, the court wrote that California’s “pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.”

The legislature enacted California Code of Civil Procedure, also referred to as the California Civil Discovery Act (1986). §2019.010, which lists ways a party may obtain discovery: “Any party may obtain discovery by one or more of the following methods:

(a) Oral and written depositions,
(b) Interrogatories to a party,
(c) Inspections of documents, things and places,
(d) Physical and mental examinations,
(e) Requests for admissions,
(f) Simultaneous exchanges of expert trial witness information.

§2031 reads: “The court in which an action is pending may:

— order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control; or

— order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation thereon within the scope of the examination permitted subdivision (b) of Section 2016 of this code. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.” [56 Cal.2d 370]

California Code of Civil Procedure Section 2017(a) states that “unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”

In Irvington-Moore, Inc. v. Superior Court, (1993) 14 Cal.App.4th 733, the court states that “in establishing the statutory methods of obtaining discovery, the legislature intended that discovery be allowed whenever consistent with justice and public policy” for all litigation actions. It further states: “a party may demand that any other party produce and permit the party making the demand, or someone acting on the party’s behalf, to inspect and to copy a document that is in the possession, custody, or control, or control of the party on whom the demand is made.”

The same court relied on Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 382-383, 388 as to how statutes must be viewed, stating: “The statutes must be liberally construed in favor of discovery, and the courts must not extend the limits on discovery beyond those expressed by the legislature. Other than to protect against possible abuse, the legislature did not differentiate between the right to one method of discovery and another, but intended the right to use each of the various vehicles of discovery to be inherently the same. Selection of the method of discovery is made by the party seeking discovery; it cannot be dictated by the opposing party.”

The Discovery Act of 1986 codifies the liberal discovery concept providing a bona fide right for parties to conduct independent discovery in every litigated matter.

The Glenfed Dev. Corp. v. Superior Court, supra, court crystallized relevance. “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (See also, Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612).

One of the most significant cases for discovery in the workers’ compensation arena is Patricia Ann Hardesty et al., (John D. Hardesty, Jr., deceased), v. McCord & Holdren, Inc. and Industrial Indemnity Company (1976) 41 CCC 111. The ruling is: “Each party to a workers’ compensation proceeding must make available to the other party for inspection all non-privileged statements of witnesses which are in his possession, or which might come into his possession before the time of trial, since the denial of discovery of non-privileged statement would unfairly prejudice the opposing party in preparing his case and would unduly expose him to the danger of surprise at trial.”

Labor Code §5710 is the authority on California workers’ compensation for taking the deposition of applicants, physicians, experts, employers and claims adjusters. (Note: Deposition can mean either the oral taking of a statement under oath or deposing of records). §5710 reads: “The appeals board, a workers’ compensation judge, or any party to the action or proceeding, may, in any investigation or hearing before the appeals board, cause the deposition of witnesses residing within or outside the state to be taken in themanner prescribed by law of like depositions in civil actions in the superior courts of this state under Title 4 of Part 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.”

Case law supports the right of parties to subpoena records. This right can be found in Irvington-Moore, Inc. v. Superior Court. It states: “A party may demand that any other party produce and permit the party making the demand, or someone acting on the party’s behalf, to inspect and to copy a document that is in the possession, custody or control of the party on whom the demand is made.”

In workers’ compensation, the most common form of discovery to develop the record is obtained through documented business and medical records and witness depositions. The right to issue a subpoena is found in California Evidence Code §1560(e), which states: “The subpoenaing party in a civil action may direct the witness to make the records available for inspection or by copying by the party’s attorney, the attorney’s representativeor deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness’ business address under reasonable conditions during normal business hours.”

Subpoena rights are also buttressed by Workers’ Compensation Title 8 Regulation §10530: “The Workers’ Compensation Appeals Board shall issue subpoenas and subpoenas duces tecum upon request in accordance with the provisions of Code of Civil Procedure sections 1985 and 1987.5 and Government Code section 68097.1.”

Workers’ Compensation Title 8 Regulation §10626 iterates: “Except as otherwise provided by law, all parties, their attorney, agents and physicians shall be entitled to examine and make copies of all or any part of physician, hospital or dispensary records that are relevant to the claims made and the issues pending in a proceeding before the Workers’ Compensation Appeals Board.”

Subpoena duces tecum means: “bring with you under penalty of law” and compels the party or non-party custodians of record to bring records that they have and to verify to the court that the documents or records have not been altered. California Code of Civil Procedure §1985(c) states that: “The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena to require attendance before the court in which the action or proceeding is pending or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein; the subpoena in such a case need not be sealed. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena duces tecum to require production of the matters or things described in the subpoena.”

Title 8 Regulation §10530 provides for the WCAB issue subpoenas and subpoenas duces tecum upon request. Subpoenas for records are sent to one or multiple businesses. California Evidence Code §1270 identifies meanings for business and evidence. “As used in this article, “a business” includes every kind of business, governmental activity, profession, occupation, calling or operation of institutions, whether carried on for profit or not.” This same code defines business record and the requirement that they are made under oath as to authenticity. Section 1271 states: “Evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove the act, condition or event if:

(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

California Evidence Code §1560(e) states: “as an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party’s attorney, the attorney’s representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure.”

California Code of Civil Procedure §1985.3(a)(4) defines deposition officer as a person who meets the qualifications specified in Section 2020.420. The qualification states: “The officer for a deposition seeking discovery only of business records for copying under this article shall be a professional photocopier registered under Chapter 20 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or a person exempted from the registration requirements of that chapter under Section 22451 of the Business and Professions Code. This deposition officer shall not be financially interested in the action, or a relative or employee of any attorney of the parties.”

California Business and Professions Code §22458 states: “A professional photocopier shall be responsible at all times for maintaining the integrity and confidentiality of information obtained under the applicable codes in the transmittal or distribution of records to the authorized persons or entities” and able to swear under oath as to its authenticity, establishing the proper evidential chain of custody.

The substantial evidence rule is applied by the California Appellate Court to the Workers’ Compensation Board decision. The substantial evidence rule is a principle that a reviewing court should uphold an administrative body’s ruling if it is supported by evidence on which the administrative body could reasonably base its decision. “Substantial” means that the evidence must be of ponderable legal significance. It must be reasonable in nature, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.

Citing Petrocelli v. Workmen’s Comp. Appeals Bd. (1975) 45 Cal.App.3d 635, the California Appellate Court in Georgia-Pacific Corp. v. Workers’ Comp. Appeals Bd., (1983) 144 Cal.App.3d 72, wrote that “the respondent board’s decision to uphold the finding of the workers’ compensation judge should not be disturbed where supported by substantial evidence or fairly drawn inferences . . .” — thereby demonstrating that Appellate Court findings can set precedent on an administrative order/finding.

A party must be able to conduct independent discovery, or the case will not be litigated based on a complete and accurate record, which is a violation of the due process of law. (U.S. Const. amend. IV and XIV).