ymcgavin@socal.rr.com
Senior Member
Posts: 1351
Joined: Jun 2002
|
Thursday November 03, 2005 2:21 PM
|
|
Hi Steve,
Thanks for the good reading material. However, I would pay close attention to the conclusion:
"Therefore, it is important to consult your jurisdiction's applicable law to ascertain what method is used to make this determination. Even if the documents in the file are found to have been prepared in anticipation of litigation, the documents may still be discoverable upon a showing of substantial need and undue hardship."
A good case for discovery, in our wild and wacky world of work comp, can be found in the Saldana case at 62 CCC 1185:
"Attorney-Client Privilege--WCAB properly upheld WCJ order compelling defendant to produce records and found that defendant's claims examiners' notes were not within the attorney-client privilege, although defendant might use the notes in attorney consultations in the future."
"On 3/24/97, the WCAB granted Defendant's Petition for Removal and issued a Decision After Removal, essentially affirming the ruling of the WCJ that certain items were subject to discovery by Applicant. These items included: a letter from Defendant to Dr. Greils of 3/8/96, requesting the doctor to provide specific responses when preparing his medical-legal report; a note of 12/28/95 from the claims adjuster to Constitution Stated Services Company (CSSC); a summary of a recorded interview by the claims adjuster on 3/8/96; a handwritten note to the claims file; a collection of the claims adjuster's handwritten chronological history to the claim file, covering dates from 9/23/91 through 11/18/92; an 8/5/96 PD rating report prepared for Defendant by Sorenson Rating Service; and the Employer's Report of Occupational Illness or Injury dated 10/31/95. Defendant contended these items were privileged.
Defendant filed its Petition for Writ of Prohibition, or in the alternative, a Petition for Writ of Mandate, and Application for Stay of Administrative Decision. In its Petition, Defendant contended in pertinent part that the items ordered to be produced were protected by the attorney-client privilege and not discoverable. Defendant contended that the notes of the claims adjuster were prepared for the purpose of defending against the claim of Applicant and contained statements made by the policy holder to the insurer as well as the personal observations of the claims adjuster. Applicant filed a response to the Petition.
WRIT DENIED June 2, 1997."
Gee whiz, I wonder how many untimely UR denials might be discovered in a claims file, obtained by a lien claimant via a SDT, and whether the Audit Unit would be interested. This is of particular interest due to the recent article in the L.A. Times addressing late UR responses causing delay in the provision of care to injured workers --- combined with our temporary AD informing the public that this is a hot-button issue that has already been the subject of public comment periods, and that there will be penalty regs in place for late UR responses before the end of the year.
Steve, this post was not directed specifically at you, but instead, to the entire payor community. After informing a local district office of the 800 pound gorilla that each and every untimely UR denial (provided to me as part of my 10608(a) demands in preparation for lien trials) was being forwarded to the Audit Unit, this district office changed their tune --- and is now paying me at OMFS, with the lien filing fee and interest, without blinking an eye, at the initial lien conference. Hmmmmm.
York McGavin
ymcgavin@socal.rr.com 
|
|
