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Our little corner of California’s Workers’ Compensation industry is all abuzz over the news of yesterday’s WCAB en banc decision on the issue of whether or not a copy service acting as an agent or independent contractor of applicant’s attorney is exempt from the Professional Photocopier registration requirements set forth in Business and Professions Code sections 22450-22463.

(View the board’s decision here)

The lien claimant in question, Western Imaging Services — along with a handful of other copy service providers — has put considerable effort over the last few years into arguing that, as either an “agent” or “independent contractor” (the designation they have applied to themselves has changed over time) of the applicant’s attorney, they are fully exempt from having to meet any of the Professional Photocopier registration requirements.

Business and Professions Code section 22450 states:

22450.  A professional photocopier is any person who for compensation obtains or reproduces documents authorized to be produced under Part 2.6 (commencing with Section 56) of Division 1 of, or Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of, the Civil Code, or Section 1158 of, or Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of, the Evidence Code and who, while engaged in performing that activity, has access to the information contained therein. A professional photocopier shall be registered pursuant to this chapter by the county clerk of the county in which he or she resides or has his or her principal place of business, and in which he or she maintains a branch office.

 

The exemption cited by Western Imaging Services is stated in section 22451(b):

22451. This chapter does not apply to any of the following: … (b) A member of the State Bar or his or her employees, agents, or independent contractors.

 

Some of the requirements that a non-exempt Professional Photocopier is subject to include the posting of a $5,000 Professional Photocopier’s surety bond, a declaration by the provider’s corporate officers that none of them have been convicted of a felony, and the responsibility of maintaining the integrity and confidentiality of the information contained in the records obtained by the photocopier. An exempt copy service provider does not have any obligation to meet these requirements.

The board’s en banc decision establishes and enforces the idea that applicant’s attorneys have every right to enter into an agent-principal relationship or contract with a provider who, for whatever reason, cannot or will not meet the Professional Photocopier registration requirements or post a Professional Photocopier’s bond. The attorney who chooses to hire a non-registered, non-bonded copy service would then be unquestionably liable for any damages or wrongdoing on the part of that copy service, who now acts as an extension of the requesting attorney.

Of course, before a copy service lien claimant can be reimbursed for their services, they still have the burden to prove that they were in fact hired by applicant’s attorney, with a very specific directive to subpoena the records that the lien claimant has billed for. If the lien claimant is not a registered Professional Photocopier, they must also provide proof of their agency or independent contractor relationship with the attorney.

It is extremely common for non-registered copy service lien claimants to provide lien trial “evidence” that consists of a hastily scribbled order form (with no proof that it was actually filled out by applicant’s attorney), a blanket letter — dated years after the services in question were provided — stating that the applicant law firm uses the copy service as an independent contractor, and a bunch of invoices for record locations that may have never even been specified on the attorney’s order form. Will this be enough, in each evidentiary circumstance, to establish an agency or contractor relationship between the provider and the attorney? Is it enough to prove that the lien claimant is entitled to reimbursement? These are questions that may be best asked on a case-by-case basis.

It is also important to consider that this en banc decision should only be applied to liens with dates of service prior to the enactment of the new copy service fee schedule regulations. Any question as to whether or not a copy service provider should be a registered Professional Photocopier will soon be moot as older liens are resolved.

Within the new copy service regulations, California Code of Regulations section 9981(a) states that the new rules are not retroactive:

(a) This article applies to services provided on and after the effective date of this article regardless of date of injury.

(The copy service fee schedule regulations are effective as of July 1, 2015. Reference: https://www.dir.ca.gov/dwc/DWCPropRegs/CopyServiceFeeSchedule/CopyServiceFeeSchedule.htm)

Section 9982(d) states that copy service providers must be registered in order to get paid:

(d) There will be no payment for copy and related services that are: … (2) Provided by any person or entity which is not a registered professional photocopier.

 

In point of fact, and presumably in anticipation of the new copy service regulations, Western Imaging Services and several other companies actually started getting on board with the registration requirements about a year ago, getting their Professional Photocopier ID cards in late 2014. (We can’t help but wonder why they put so much energy into finding a way around the registration requirements instead of just going down to the County Clerk’s office and getting registered in the first place, but why dwell on that now?)

Here are a few examples of copy service providers you would be pleased to find on the Los Angeles County Clerk’s list of recently registered Professional Photocopiers:

  • Western Imaging Service, Inc.
    • Registered as of October 2014
    • ID issued to Alex Nerush, Company Officer
  • Preferred Scan, Inc.
    • Registered as of September 2014
    • ID issued to Alex Nerush, Company Officer
  • San Diego Imaging, Inc. DBA California Imaging Solutions
    • Registered as of October 2014
    • ID issued to Alex Nerush, Company Officer
  • Citywide Scanning Service, Inc.
    • Registered as of September 2014
    • ID issued to Alex Nerush, Company Officer

It’s heartening to see these companies setting the example for other copy service providers who might be on the fence about registering as Professional Photocopiers, and letting the world know they’re on the up-and-up.

 

Jeff Oakley
Vice President, Technology & Operations
AAA Copy & Review Services

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