Pursuant to Labor Code § 5500.5(a) LC 5412
For cases in which multiple defendants have liability for a CT claim, LC 5500.5(c)
An applicant also can choose not to elect against a particular defendant and to proceed against all insurers or employers. In such cases, there might be a dispute about how to proceed with discovery, particularly whether multiple qualified medical evaluators can be obtained.
In Chanchavac v. LB Industries, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 516, the WCAB upheld a decision that a co-defendant was entitled to obtain its own QME panel in connection with the applicant’s CT claim, even though the other defendant had already obtained panel QME report. The case involved two insurers for the same employer, and the applicant argued that because there was only one employer, there could be only one QME panel.
The WCAB adopted the WCJ’s decision stating that he was “aware of no other situation in which multiple carriers could not conduct their own independent discovery in a case, and sees nothing in section 4062.2 which prohibits multiple carriers from utilizing the statute to obtain their own qualified medical examiners.” It noted that the applicant simply could have made an election to stop the co-defendant from conducting any discovery, but she did not. It found, “There is simply no basis or precedent for designating one carrier as some sort of ‘lead carrier’ which other carriers must follow, or the carrier in which all other carriers are in ‘privity’ and therefore bound by its decisions and actions.”
Recently, in Justo v. Consolidated Staffing Solutions, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 368, the WCAB held that an applicant potentially could obtain multiple QMEs in a CT claim against multiple defendants. In that case, the applicant claimed a cumulative trauma injury against the defendant employer, Citistaff Solutions, Inc. (Citistaff), and on Nov. 12, 2021, Citistaff obtained an orthopedic QME panel that issued five reports.
Later, it was determined that the applicant was also employed by Consolidated Staffing Solutions (Consolidated Staffing) during the cumulative injury period, and on Oct. 24, 2022, a notice of representation was sent by Consolidated Staffing’s attorney. On Jan. 8, 2024, the applicant requested and obtained a chiropractic QME using the claim number provided by Consolidated Staffing, and the parties proceeded to trial on the validity of that additional panel.
The WCAB in Justo noted that Chanchavac provided some guidance, and it rejected the contention that applying Chanchavac to the current case would create bad policy, unnecessarily complicated litigation, and more costs, delays and uncertainty. The WCAB stated:
[T]here is nothing within Chanchavac which limits the right to additional panels to defendants only and there is no case or statutory law which supports the WCJ’s finding that an employee may be denied due process rights simply because the employee chose not to elect against a defendant, particularly when it is within the employee’s rights. Ultimately, election rules exist for the benefit and expediency of the injured worker and if an injured worker chooses nonelection, it is their every right, even if it means potential delays and complications.
So, Justo gives both parties the right to obtain additional QME panels when there are multiple defendants involved in a cumulative trauma claim, and the applicant has not made an election. It applies in cases involving multiple employers or multiple carriers for the same employer, as was the case in Chanchavac. The WCAB recognizes that it could result in “potential delays and complications.” That is, the board knows that the practice could lead to doctor-shopping and/or dueling QMEs, but believes that it’s part of the applicant’s right to not make an election.
The WCAB’s decision raises the possibility of very complicated issues. For example, what if an applicant files a claim for a cumulative trauma injury covering his or her entire employment, rather than just the last year of liability pursuant to LC 5500.5(a) might have liability? Must the liability period per LC 5500.5(a) LC 5500.5(a)
Nevertheless, the WCAB has held that after an applicant elects against a defendant, the appeals board may preclude any party from proceeding with a doctor from a QME panel requested by the nonelected defendant. (Molina v. Desert Shades, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 367.) So an applicant could limit the potential discovery in such cases by exercising an election pursuant to LC 5500.5(c)
About the Author
A thought leader in the field, Mr. Log regularly develops seminar materials and co-authors influential white papers on critical workers’ compensation topics. His publications include “An Analysis of the New Regulations Regarding Disputes Over Medical-Legal Expense and Medical Treatment,” “Special Report: A First Look at SB 863” detailing the 2012 reforms to California’s workers’ compensation system, and “SB 863: Five Years Later.”
Mr. Log is also the co-author of Sullivan on Comp
