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5 BENJAMIN SIMON,

WORKERS' COMPENSATION APPEALS BOARD

STATE OF CALIFORNIA

Case No. Misc. 259

6 Petu;one~

7 VS.OPINION AND ORDER

DISMISSING PETITION

8 CALIFORNIA DEPARTMENT OFINDUSTRIAL RELATIONS, ET AL.,

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10Respondents.

11 On March 5, 2018, the Workers' Compensation Appeals Board (WCAB) received a document

12 entitled "Verified Petition For The WCAB To Take Jurisdiction And Issue A Writ Of Mandate Ordering

13 Respondents To Cease Denying Petitioner's Reappointment As A Qualified Medical Evaluator Based On

14 Alleged Billing Violations And 'Underground Regulations': (1) Violation Of Ministerial Duty To

15 Reappoint QMEs Under Labor Code §139.2(B) And §5307.3; 8 CCR §§ 50, 51, 52, And 54-57; And

16 Government Code § 11340, Et Seq.(Writ Of Mandate, Code Of Civil Procedure § 1085); And (2)

17 Violation Of United States Constitution (Amendment XIV) And California Constitution (Article 1,

18 Section 7(A) Due Process Clauses (Injunctive Relief)" (Petition).

19 Dr. Benjamin Simon alleges in his Petition that his right to due process was violated by the

20 Administrative Director (AD) of the Department ofIndustrial Relations (DIR) because his reappointment

21 as a Qualified Medical Evaluator (QME) was denied based upon "undergro'und regulations" that were

22 unlawfully promulgated.

23 Attached to the Petition as Exhibit A is a January 22, 2018 memorandum of points and authorities

24 filed by the AD in response to a petition for writ of mandate filed by Dr. Simon and another physician

25 against the AD and others in Los Angeles Superior Court based upon the same allegations as in the

26 Petition (L.A. Superior Court Case No. BS171032). It is asserted on pages 7 and 8 of that memorandum

27 that a hearing concerning the decision not to reappoint Dr. Simon as a QME is pending before the Office

1 of Administrative Hearings (OAH).

2 Attached to the Petition as Exhibit B is a copy of a February 6, 2018 tentative decision in Case

3 No. BS171032 by Judge Chalfant of the Los Angeles Superior Court. In that tentative decision, Judge

4 Chalfant writes on pages 15 through 17 that, "the WCAB has exclusive jurisdiction to hear any matters

5 involving the reasonable and proper rules of practice and procedure implemented by the administrative

6 director for QMEs," and that the exclusive jurisdiction of the WCAB "includes an unlawful change in the

7 interpretation of the medical legal schedule that is an underground regulations ... [t]he WCAB's

8 jurisdiction must be exclusive in medical legal matters." Judge Chalfant further writes in his tentative

9 decision that, "the superior court does not have traditional mandate jurisdiction over [Dr. Simon's]

10 underground regulation claims." However, on page 24 of the tentative decision Judge Chalfant expresses

11 the intention to grant a writ of mandate "based on the unreasonable delay in providing a hearing on [Dr.

12 Simon's] non-reappointment" as a QME.

13 It appears that the Petition was filed with the Appeals Board by Dr. Simon following his receipt

14 of the February 6, 2018 tentative decision in Case No. BS 171032. The petition requests that the Appeals

15 Board invalidate the alleged "underground regulations" that Dr. Simon claims the AD applied to deny his

16 reappointment as a QME.

17 The WCAB does not have jurisdiction to address the appointment or reappointment of a QME by

18 the AD and the Petition is therefore dismissed.

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SIMONv.DIR 2

1 DISCUSSION

2 The exclusive jurisdiction of the Appeals Board is described in pertinent part in Labor Code

3 section 5300 to include the detennination of issues involving "compensation" and "any other matter,

4 jurisdiction over which is vested by Division 4 [of the Labor Code] ... "] Most petitions to the Appeals

5 Board request "reconsideration" of a "final order, decision, or award" issued by a workers' compensation

6 administrative law judge (WCJ) or the Appeals Board under the provisions of Division 4 as provided in

7 section 5900 et seq.2 (See, Safeway Stores, Inc. v. Workers' Compo Appeals Bd. (Pointer) (1980) 104

8 Cal.App.3d 528 [45 Cal.Comp.Cases 410]; Maranian V. Workers' Camp. Appeals Bd. (2000) 81

9 Cal.AppAth 1068 [65 Cal.Comp.Cases 650].)

10 Alternatively, and in contrast to a petition for reconsideration, a party may under section 5310 ask

11 the Appeals Board to "remove to itself' the proceedings on a "claim" for compensation.3 Removal is

12 discretionary, and a petitioner must demonstrate, 1) that the WCJ action will result in "significant

13 prejudice" and/or "irreparable harm," and 2) that reconsideration will not be an adequate remedy after the

2 Section 5900(a) provides in full as follows: "Any person aggrieved directly or indirectly by any final order, decisioll, oraward made and filed by the appeals board or a workers' compensation judge under any provision contained in this division,may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order, decision,or award, and specified in the petition for reconsideration. The petition shall be made only within the time and in the mannerspecified in this chapter."

3 Section 5310 provides in pertinent part as follows: "The appeals board may ... remove to itself. .. the proceedings on anyclaim."

1 Further statutory references are to the Labor Code. Section 5300 provides in full as follows: "All the following proceedingsshall be instituted before the appeals board and not elsewhere, except as otherwise provided in Division 4: (a) For therecovery of compensation, or concerning any right or liability arising out of or incidental thereto. (b) For the enforcementagainst the employer or an insurer of any liability for compensation imposed upon the employer by this division in favor of theinjured employee, his or her dependents, or any third person. (c) For the determination of any question as to the distributionof compensation among dependents or other persons. (d) For the determination of any question as to who are dependents ofany deceased employee, or what persons are entitled to any benefit under the compensation provisions of this division. (e) Forobtaining any order which by Division 4 the appeals board is authorized to make. (f) For the determination of any othermatter, jurisdiction over which is vested by Division 4 in the Division of Workers' Compensation, including theadministrative director and the appeals board."

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14 issuance of a final order, decision, or award. (Cal. Code Regs., tit. 8, §10843(a); Cortez V. Workers'

15 Camp. Appeals Bd. (2006) 136 Cal.AppAth 596 [71 Cal.Comp.Cases 155]; Kleemann v Workers' Camp.

16 Appeals Bd. (2005) 127 Cal.AppAth 224, footnote 2 [70 Cal.Comp.Cases 133].)

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SIMONy. DIR 3

1 The Petition does not involve a "final order, decision, or award" of a WCJ or the Appeals Board

2 under the provisions of Division 4 as described in section 5900 and does not involve a "claim" for

3 compensation as described in 5310. Instead, the gravamen of the Petition is that the AD improperly

4 denied reappointment of Dr. Simon as a QME.

5 The appointment and reappointment of a QME is covered by section 139.2, which is within

6 Division 1 of the Labor Code. As provided in section 139.2(d)(4), "the administrative director may, in

7 his or her discretion, reappoint or deny reappointment [of a QME] according to regulations adopted by

8 the administrative director." A regulation concerning the reappointment of a QME that was adopted by

9 the AD pursuant to the authority provided in section 139.2(d)(4) is found in California Code of

10 Regulations, title 8, section 63 (AD Rule 63). Under AD Rule 63, a physician is to be notified of a final

11 decision of the AD to deny reappointment "by means of a statement of issues and notice of right to

12 hearing under Chapter 5 (commencing with section 11500) of Title 2 of the Government Code," which

13 contains the OAH process for hearing administrative appeals.

14 In sum, the Petition does not involve a claim for compensation or issue arising under Division 4

15 of the Labor Code as described in section 5300, does not challenge a final order, decision, or award of a

16 WCJ that is subject to reconsideration as described in section 5900, and does not involve a claim that can

17 be removed to the Appeals Board as provided in section 5310. Instead, it is alleged in the Petition that

18 the AD improperly denied Dr. Simon reappointment as a QME and asks the WCAB to invalidate that

19 action. However, no statute or regulation authorizes the WCAB to hear challenges to the AD's non­

20 reappointment of a QME. Instead, the non-reappointment of a QME is addressed in section 139.2 and

21 AD Rule 63, which provides for a hearing before the OAH to address whether the AD acted without

22 authority in taking that action with regard to Dr. Simon.

23 The Petition is therefore dismissed.

24 For the foregoing reasons,

25 IT IS ORDERED that the Verified Petition For The WCAB To Take Jurisdiction And Issue A

26 Writ Of Mandate Ordering Respondents To Cease Denying Petitioner's Reappointment As A Qualified

27 Medical Evaluator Based On Alleged Billing Violations And 'Underground Regulations': (1) Violation

SIMONy. DIR 4

1 Of Ministerial Duty To Reappoint QMEs Under Labor Code § 139.2(B) And § 5307.3; 8 CCR §§ 50,51,

2 52, And 54-57; And Government Code § 11340, Et Seq.(Writ Of Mandate, Code Of Civil Procedure

3 § 1085); And (2) Violation Of United States Constitution (Amendment XIV) And California Constitution

4 (Article 1, Section 7(A)) Due Process Clauses (Injunctive Relief) that was delivered to the Workers'

5 Compensation Appeals Board on March 5, 2018 by Dr. Benjamin Simon is DISMISSED.

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12 I CONCUR,

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WORKERS' COMPENSATION APPEALS BOARD

DEIDRA E. LOWE

CHid R

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MARGUERITE SWEE16

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21 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA

22 HAR 1 4201823 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR

ADDRESSES SHOWN ON THE ATTACHED PROOF OF SERVICE.24

25 ROXBOROUGH, POMERANCE, NYE & ANDREANIOFFICE OF THE ADMINISTRATIVE DIRECTOR

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SIMONv. DIR 5

PROOF OF SERVICE BY MAIL(Code Civ. Proc., §§ 1013a, 2009, 2015.5; Lab. Code, § 5954;

Cal. Rules of Court, Rules 8.25(a), 8.494(b))

STATE OF CALIFORNIA ))ss.

CITY AND COUNTY OF SAN FRANCISCO )

I declare that I am a citizen of the United States and that I am employed in the Cityand County of San Francisco of the State of California. I am over the age of 18 years andnot a party to the within entitled action. My business address is 455 Golden GateAvenue, Suite 9328, San Francisco, CA 94102.

On March ~, 2018, I served the attached OPINION AND ORDERDISMISSING PETITION in the matter of Benjamin Simon, Misc. 259 on the personsindicated below, by placing true copy thereof in sealed envelope with postage thereonfully prepaid in the United States mail in San Francisco, California addressed as statedbelow. .

Roxborough, Pomerance, Nye & Andreani5820 Canoga Avenue, Suite 250Woodland Hills, CA 91367

George Parisotto, Administrative DirectorDivision of Workers' Compensation1515 Clay Street Floor 18Oakland, CA 94612

I declare under penalty of perjury that the foregoing is true and correct, and thatthis declaration was executed at San Francisco, California on March .!i-, 2018.

A~1L_Annie B. Santiago