The evidence the panel weighed, by kind.
Documentary evidencefavours Applicant prevailed
Invoices showing number of pages copied as evidence that records were actually provided
From the decision · page 5III
DISCUSSION
Defendant contends that because Lien Claimant did not submit the actual records produced
in response to the various subpoenas, Lien Claimant has failed to meet their burden of proof that
the records were actually produced where there was no Declaration from the Custodian of Records.
Defendant notes that there is a Declaration from the Custodian of Records included with the
subpoena exhibits for the records related to St. Agnes Medical Center, Reedley Physical Therapy
and Marc Johnson M.D., which Defendant accepts as proof that the records were actually
produced. (Exh. 6, SDT number 93877 for St. Agnes Medical Center dated 7/27/12; Exh. 9, SDT
number 93880 for Reedley Physical Therapy dated 8/10/12; Exh. 11 SDT number 93882 for Mark
Johnson M.D. dated 8/10/12.)
Whether or not the Custodian of Records for the entity that is the subject of a subpoena
completes and returns the Declaration is beyond the control of the lien claimant copy service.
There is no case law cited by Defendant that requires lien claimants to submit either the Declaration
of the Custodian of Records or the actual subpoenaed records in order to prove that the records
were actually produced.
Documentary evidencefavours Applicant prevailed
Defendant did not produce evidence showing failure to comply with subpoenas or failure to produce records as shown on invoices
From the decision · page 5This court relied upon the submitted Invoices that showed how many
pages were copied as evidence that the records were actually provided. The court also notes that
one of the locations that did not produce a Declaration of the Custodian of Records was the
defendant. However, the defendant did not produce any evidence showing that they failed to
comply with the subpoena or did not produce the number of pages of records as shown on the
invoice.
Defendant disputes the mileage claimed on several of the invoices by asserting that the
subpoenas were served by mail and that on the Declaration of Custodian of Records there was a
place where the Custodian could indicate that the records were delivered to the copy service.
However, Defendant infers that because the Custodian of Records could indicate that the records
were delivered, this is evidence that lien claimant did not incur any mileage expense related to
obtaining the records.
treatment coursefavours Applicant prevailed
Defendant failed to respond to lien claimant's billing with any objection or explanation of benefits for nearly two and a half years, leading to penalty and interest liability
From the decision · page 6In this case, the penalty and interest were calculated solely upon that portion of the lien
claimant's billing that was determined to be reasonable and the employer did not prevail in
defeating the lien claimant's claim in its entirety. Further, defendant failed to respond to lien
claimant's billing with any objection or explanation of benefits for nearly two and a half years.
Such a delay is clearly unreasonable and subjects the defendant to the penalty and interest as set
forth in Labor Code section 4622.