Legal Question in Workers Comp in California

I am trying, so far unsuccessfully, to get some doctor's records. I have gotten the WCAB subpoena forms, filled them out and served them on the doctor and the doctor simply does not respond. I am also filing a HIPAA complaint against the doctor for refusing to provide me with my medical records, but that could take a long time. I asked the WCAB judge if she has the authority to enforce subpoenas on third parties coming out of her court and she said "no". She jokingly did not really respond when I asked "just what is the use of a WCAB subpoena then?" I did learn a little bit that once I served the WCAB subpoena, I could go to a civil court and get the subpoena enforced through a civil court. Dose anyone have any guidance on how I would actually do that? What civil court would I need to go to, and what would be the name of the type of motion I would have to present? I read something about I would have to file a case in civil court before I could get a civil court to hear a subpoena motion, but I can not file a WCAB case in civil court and other than trying to force the doctor to comply with the subpoena, I currently have no civil action against the doctor. Do WCAB attorneys simply give up if a third party refuses to respond to a subpoena?


Asked on 10/20/16, 8:19 am

1 Answer from Attorneys
Nancy Wallace Nancy Wallace Atty at Law

No, WCAB Attorneys do not 'simply give up' if a third party doesn't respond.

What I do is go through the subpena and the proof of personal service on the Agent for Service and make absolutely certain each provision of CCP 2020 . If the subpena Duces Tecum wasn't personally served on the right individual, it's a fish wrap and the clinic can legally just ignore it. The WCAB judge does have authority to suspend proceedings if a Records Subpena was properly prepared (not one little mistake, absolute 100% perfect), until the records are produced...then the defense has some reason to 'help' the physician gather and release the records. Another technique I used was an Petition for a Presumption that all the records as precisely described in the subpena are 'adverse' to the position of the clinic/doctor... but that is only effective if you are proceeding some interest of the clinic or doctor. In 27 years of practice i've never had to go to civil court to enforce a WCAB records subpena.

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Answered on 10/21/16, 12:47 pm


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