ADJ11080934 · October 28, 2025

The WCAB found insufficient evidence that defendant engaged in bad-faith actions or tactics that were frivolous or solely intended to cause unnecessary delay, and thus rescinded the WCJ's sanctions order.

From the decision · page 9Labor Code 5813 states, in pertinent part, "The workers' compensation referee or appeals board may order a party, the party's attorney, or both, to pay any reasonable expenses, including attorney's fees and costs, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." WCAB Rule 10421(b), for its part, states, "Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit."

Dr. Bhatia recommended a neuropsychology panel evaluation due to traumatic brain injury causing mental status changes.

Favours Applicant prevailed

This recommendation established the basis for the request for additional panel evaluations, which was a key issue in the sanctions dispute.

From the decision · page 5Turning to the merits, applicant was initially evaluated by neurologist panel qualified medical evaluator Perminder Bhatia, M.D. on February 23, 2018. Dr. Bhatia issued a report on March 19, 2018 in which he found applicant permanent and stationary and able to return to his customary work duties on a neurological basis. In a supplemental report of May 3, 2018, in response to interrogatories posed by applicant's former counsel, Dr. Bhatia wrote, "[applicant's counsel is] asking about whether the applicant should have additional panel QME evaluation in neuropsychology and answer to that is yes, traumatic brain injury can cause mental status changes, memory loss along with stress, anxiety, and sleep and so it is reasonable to have a panel QME physician in field of neuropsychology." (May 3, 2018 report at p. 2.)

There was no evidence that defendant willfully failed to authorize the neuropsychology evaluation or engaged in bad faith tactics to delay proceedings.

Favours Defendant prevailed

The absence of evidence of willful failure or bad faith led the WCAB to rescind the sanctions against defendant.

From the decision · page 9We find insufficient evidence in this case of bad-faith actions or tactics that are frivolous or that result from a willful failure to comply with a statutory or regulatory obligation. Although the WCJ is correct that the parties should have sought a neuropsychological evaluation when it was recommended by Dr. Bhatia, we see no evidence this was a willful failure by the defendant. We do not believe that the onus for seeking such discovery fell solely on the defendant's shoulders. Indeed, applicant was represented and has the burden of proving industrial injury. Given that there is no evidence at all of applicant mentioning the need for a neuropsychological evaluation for nearly six years after Dr. Bhatia's report, it is unclear how defendant's actions could be found "willful" and or that a finding could be made that defendant did not deal fairly and in good faith. During this time, applicant could have engaged defendant in discussions regarding the need for further discovery or setting forth good cause for further panels before the WCAB and obtaining an order for further discovery. We find nothing in the record that defendant obstructed any such efforts.

Dr. Bhatia found applicant permanent and stationary and able to return to customary work duties on a neurological basis. He recommended a neuropsychology panel evaluation as traumatic brain injury can cause mental status changes.

From the decision · page 5Turning to the merits, applicant was initially evaluated by neurologist panel qualified medical evaluator Perminder Bhatia, M.D. on February 23, 2018. Dr. Bhatia issued a report on March 19, 2018 in which he found applicant permanent and stationary and able to return to his customary work duties on a neurological basis. In a supplemental report of May 3, 2018, in response to interrogatories posed by applicant's former counsel, Dr. Bhatia wrote, "[applicant's counsel is] asking about whether the applicant should have additional panel QME evaluation in neuropsychology and answer to that is yes, traumatic brain injury can cause mental status changes, memory loss along with stress, anxiety, and sleep and so it is reasonable to have a panel QME physician in field of neuropsychology." (May 3, 2018 report at p. 2.)

Appointed as neuropsychology independent medical evaluator by WCJ in the April 30, 2025 Findings, Award, and Order.

From the decision · page 8On December 2, 2024, the WCJ issued a Findings, Award, and Order finding, in pertinent part, that applicant was entitled to qualified medical evaluator panels in psychiatry and internal medicine and appointing Marcel Ponton, PhD as a Labor Code section 5701 independent medical evaluator in the field of neuropsychology. Buried in the decision, after the Opinion on Decision, was a Notice of Intention to Impose Sanctions. The Notice of Intention is procedurally defective in that it is buried on page 6 of the decision and does not identify by name who is to be made subject to the potential sanctions. Nevertheless, the Notice of Intention gives notice that a hearing will be set on the issue of whether the failure to "authorize" an examination with a neuropsychologist after Dr. Bhatia's May 2018 report or failure to agree to additional panels relating to

Labor Code section 5813

Labor Code section 5813 prohibits bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay and authorizes sanctions including attorney's fees.

The WCAB applied this standard to evaluate whether defendant's conduct warranted sanctions and found insufficient evidence of bad faith.

From the decision · page 9Labor Code 5813 states, in pertinent part, "The workers' compensation referee or appeals board may order a party, the party's attorney, or both, to pay any reasonable expenses, including attorney's fees and costs, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." WCAB Rule 10421(b), for its part, states, "Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit."

WCAB Rule 10421(b)

WCAB Rule 10421(b) defines bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, including willful failure to comply with obligations or improper motives.

The WCAB applied this rule to assess defendant's conduct and found no frivolous or willful failure to comply.

From the decision · page 9Labor Code 5813 states, in pertinent part, "The workers' compensation referee or appeals board may order a party, the party's attorney, or both, to pay any reasonable expenses, including attorney's fees and costs, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." WCAB Rule 10421(b), for its part, states, "Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit."

No evidence of bad faith litigation tactics by defendant; defendant did not obstruct discovery or act willfully to delay proceedings.

From the decision · page 9We find insufficient evidence in this case of bad-faith actions or tactics that are frivolous or that result from a willful failure to comply with a statutory or regulatory obligation. Although the WCJ is correct that the parties should have sought a neuropsychological evaluation when it was recommended by Dr. Bhatia, we see no evidence this was a willful failure by the defendant. We do not believe that the onus for seeking such discovery fell solely on the defendant's shoulders. Indeed, applicant was represented and has the burden of proving industrial injury. Given that there is no evidence at all of applicant mentioning the need for a neuropsychological evaluation for nearly six years after Dr. Bhatia's report, it is unclear how defendant's actions could be found "willful" and or that a finding could be made that defendant did not deal fairly and in good faith. During this time, applicant could have engaged defendant in discussions regarding the need for further discovery or setting forth good cause for further panels before the WCAB and obtaining an order for further discovery. We find nothing in the record that defendant obstructed any such efforts.