What the panel ordered
Applicant's petition for reconsideration denied; Defendant's petition for reconsideration granted; Findings and Order of August 21, 2025 affirmed except issue of costs and sanctions against applicant's attorney deferred to WCJ for new finding.
Petitions for reconsideration filed by both applicant and defendant; WCJ issued Findings and Order on August 21, 2025; WCJ Report and Recommendation on Petition for Reconsideration served August 27, 2025; WCAB decision issued October 27, 2025.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ found no unreasonable delay by defendant in authorizing medical evaluations and no bad faith or frivolous tactics by defendant's attorney in correspondence; however, the WCAB deferred the issue of costs and sanctions against applicant's attorney for further findings.
From the decision · page 1Applicant and defendant each seek reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on August 21, 2025, wherein the WCJ found in pertinent part that defendant's attorney's correspondence dated October 30, 2024 did not violate Labor Code section1 5813; defendant did not delay a qualified medical evaluator (QME)'s exam in ophthalmology in violation of section 5814; that there is no violation of section 5813 or section 5814 and that no attorney fees are to be awarded per section 5813 and/or section 5814.5; and that no costs or sanctions will be allowed against the applicant's attorney as a result of seeking a supplemental QME report from Dr. Weingarten and/or a supplemental additional panel in ophthalmology.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant authorized ophthalmology consult with Dr. Kurwa within eight days of stipulation on 9/9/2024.
Favours Defendant prevailed
Shows no unreasonable delay in medical evaluation authorization under Labor Code section 5814.
From the decision · page 7[I]n our case at bar in the applicant, the authorization letter to Doctor Kurwa for a medical consult (set out in Defendant's Exhibit AA), came out only eight days after the Stipulation/Order of 9/9 2024. Please see EAMS number 78403159. By 3/24/2025, defendant had not only agreed to the medical consult with Doctor Kurwa, but also to an ophthalmology panel qualified medical evaluation. Please see Defendant's Exhibit BB set out in EAMS number 57111314. Defense attorney sent a proposed stipulation and a cover letter to the applicant's attorney on 3/26/2025. Please see Defendant Exhibit CC, with EAMS number 57111315. Thus, from the time of the dispute of September 9, 2025 to March 26, 2025, was a period of about half a year, which set up the framework for ending the medical dispute based on defendant's genuine doubt. The WCJ feels that this approximate half year is not an unreasonable delay considering the circumstances.
No evidence of objection to Dr. Kurwa's exam or report, which would have triggered further QME process.
Favours Defendant prevailed
Supports finding that no unreasonable delay occurred in the QME evaluation process.
From the decision · page 9The primary issue here is whether this six-month period becomes "unreasonable" under 5814 considering all circumstances. When we realize the UR process is not the correct method, and that the body part dispute must be resolved pursuant to LC 4062.2, we need to examine how well LC 4062.2 was followed. Within eight days of the allegation of the compensable consequence eye injury, defendant authorized an ophthalmological consult exam. Neither side provided information at trial on whether the exam with Dr. Kurwa took place. Neither side provided evidence that there was an objection to the report of Dr. Kurwa, which would have triggered the process for an ophthalmological QME.....
Defense attorney's October 30, 2024 letter to Dr. Weingarten did not contain information to influence medical findings and was not in bad faith.
Favours Defendant prevailed
Supports denial of sanctions under Labor Code section 5813 against defendant's attorney.
From the decision · page 10The first burden of proof is for the applicant's attorney to show that the letter of the defense attorney was sent to Dr. Weingarten; applicant attorney accomplished this burden of proof with Exhibit 34, EAMS ID 58689329. The next hurdle for the burden of proof is demonstrating that the defense attorney's letter of 10/30/2024 constitutes bad faith considering the cascading circumstances in September and October of 2024. On September 9, 2024, the defense attorney entered into a Stipulated Award which resolved the Petition to Re-Open, including slightly increased permanent disability and the additional work-related body part of sleep. Please see EAMS numbers 78403309 and 78403339.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Performed a one-time eye evaluation to determine need for medical treatment for compensable consequence injury to eyes possibly caused by work-related diabetes.
From the decision · page 2On the same date that the second Stip Award was executed on 9-9-2024, the parties entered into a separate stipulation about a medical consult exam. The parties agreed on 9-9-24 that the defendant would authorize the eye specialist named Doctor Bedruden Kurwa to perform a one-time eye evaluation of the
Provided supplemental report and was involved in dispute over need for ophthalmology panel QME; no evidence of bad faith in defense attorney's letter to him.
Defense attorney's letter to Dr. Weingarten did not contain information to influence medical findings and was not in bad faith.
From the decision · page 10The first burden of proof is for the applicant's attorney to show that the letter of the defense attorney was sent to Dr. Weingarten; applicant attorney accomplished this burden of proof with Exhibit 34, EAMS ID 58689329. The next hurdle for the burden of proof is demonstrating that the defense attorney's letter of 10/30/2024 constitutes bad faith considering the cascading circumstances in September and October of 2024. On September 9, 2024, the defense attorney entered into a Stipulated Award which resolved the Petition to Re-Open, including slightly increased permanent disability and the additional work-related body part of sleep. Please see EAMS numbers 78403309 and 78403339.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5813
Labor Code section 5813 allows a WCJ or Commissioners to order payment of reasonable expenses including attorney's fees for bad faith actions, frivolous tactics, or tactics solely intended to cause unnecessary delay.
Applied to determine if defense attorney's letter violated section 5813.
From the decision · page 9Labor Code section 5813 (a) says that a WCJ or the Commissioners "may order a party, the party's attorney, or both, to pay reasonable expenses, including attorney's fees and costs, incurred by another party..." as a result of three things.
Labor Code sections 5814, 5814.5
Labor Code section 5814 and 5814.5 provide for penalties and attorney's fees for unreasonable delay or refusal of medical treatment by employer.
Applied to assess if defendant unreasonably delayed medical treatment and if penalties and fees are warranted.
From the decision · page 6II. In the event an employer is found to have unreasonably delayed or refused medical treatment, the injured worker may seek penalties under section 5814 and attorney's fees "incurred in enforcing the payment of compensation awarded" under section 5814.5. (Lab. Code, § 5814.5.) As we stated in our en banc opinion in Ramirez v. Drive Financial Services (2008) 73
What proof carried it
The evidence the panel weighed, by kind.
No evidence of objection to Dr. Kurwa's exam or report; no evidence of unreasonable delay in medical evaluation authorization.
From the decision · page 9The primary issue here is whether this six-month period becomes "unreasonable" under 5814 considering all circumstances. When we realize the UR process is not the correct method, and that the body part dispute must be resolved pursuant to LC 4062.2, we need to examine how well LC 4062.2 was followed. Within eight days of the allegation of the compensable consequence eye injury, defendant authorized an ophthalmological consult exam. Neither side provided information at trial on whether the exam with Dr. Kurwa took place. Neither side provided evidence that there was an objection to the report of Dr. Kurwa, which would have triggered the process for an ophthalmological QME.....
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About this page
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