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 defendant engaged in a course of conduct violating the election statute and regulations, constituting frivolous and improper actions warranting sanctions.
From the decision · page 10Defendant has engaged in a course of conduct, after being elected, co-opting the QME panel of the elected out party, ignoring the election statute, not complying with the rules and regulations that would allow for another evaluation, and doing so to obtain a medical report which would have been inadmissible at trial, flagrantly violating LC 5813 and 8 CCR 10421(b). Their course of conduct defines actions that are frivolous, without merit, pursued for an improper purpose and demonstrate a willful failure to comply with the applicable statutes and regulations. It is for these reasons that the sanction is appropriate.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Southern scheduled an appointment with Dr. Hamada from Liberty's QME panel without agreement or court order.
Favours Applicant prevailed
This conduct violated the election statute and regulations, constituting improper doctor shopping and supporting sanctions.
From the decision · page 10In the absence of a showing that Dr. Derkach was unavailable or otherwise unable to address the medical issues in the case, a medical report from Dr. Hamada obtained by Southern would have been inadmissible doctor shopping (Barney v. State Compensation Insurance Fund (1994) 59 CCC 1051). Southern for an improper purpose, and without agreement or a court order, despite having already obtained a QME, stepped into the shoes of Liberty and proceeded to schedule an appointment with James Hamada, M.D., from panel #7335214.
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.
Submitted a compensable report and supplemental reports in the cumulative trauma case.
From the decision · page 4the applicant (hereafter Applicant) filed a cumulative trauma claim of injury against Desert Shades, Inc. alleging injury during the period October 12, 2016 to October 12, 2017. The case was denied by Southern. Southern and Applicant obtained a QME Panel #7170936 dated March7, 2018. Jeffrey Derkach, D.C., was chosen as QME. He first submitted a compensable report dated May 29, 2018, and subsequently provided supplemental reports and was deposed. Ohio Security Insurance Company, administered by Liberty Mutual (hereafter Liberty), was joined by Order dated January 11, 2018, as they had 48% of the cumulative trauma.
Appointment scheduled by Southern without agreement or court order, constituting doctor shopping and improper conduct.
The appointment with Dr. Hamada was scheduled without proper legal basis, violating regulations and election statute, supporting sanctions.
From the decision · page 10In the absence of a showing that Dr. Derkach was unavailable or otherwise unable to address the medical issues in the case, a medical report from Dr. Hamada obtained by Southern would have been inadmissible doctor shopping (Barney v. State Compensation Insurance Fund (1994) 59 CCC 1051). Southern for an improper purpose, and without agreement or a court order, despite having already obtained a QME, stepped into the shoes of Liberty and proceeded to schedule an appointment with James Hamada, M.D., from panel #7335214.
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 authorizes sanctions for frivolous or bad faith conduct causing unnecessary delay.
The court found Southern's conduct frivolous and sanctionable under this statute.
From the decision · page 5Labor Code Section 5813 provides the following:
8 CCR 10421(b)
8 CCR 10421(b) authorizes the WCJ or Appeals Board to impose sanctions for bad faith actions or tactics.
The court applied this regulation to uphold sanctions against Southern for improper conduct.
From the decision · page 6Code of Regulations Section 10421(a) further provides that:
What proof carried it
The evidence the panel weighed, by kind.
Defendant's course of conduct ignoring election statute and scheduling improper medical examination.
From the decision · page 10Defendant has engaged in a course of conduct, after being elected, co-opting the QME panel of the elected out party, ignoring the election statute, not complying with the rules and regulations that would allow for another evaluation, and doing so to obtain a medical report which would have been inadmissible at trial, flagrantly violating LC 5813 and 8 CCR 10421(b). Their course of conduct defines actions that are frivolous, without merit, pursued for an improper purpose and demonstrate a willful failure to comply with the applicable statutes and regulations. It is for these reasons that the sanction is appropriate.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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