California: Multiple Carrier Cumulative Trauma Injury: QME Report Strategy Risks

In Chanchavac v. LB Industries, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 516 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 516 (Lexis Advance), the WCAB, denying removal, held that the co-defendant Sentry Insurance was entitled to obtain its own panel qualified medical evaluator report in connection with the applicant’s cumulative industrial injury, even though the co-defendant Twin City Fire Insurance Company had already obtained a panel qualified evaluator report. Here, the applicant declined to elect a carrier to proceed against and, instead, chose to proceed against both of the carriers who had coverage during her cumulative trauma period while she was working for the same employer. The WCAB found that both carriers were able to obtain their own medical evaluations to defend against the applicant’s claim.  

Commentary:

The Chanchavac case highlights the potential consequences where the injured worker fails to elect against one of the carriers on a multiple carrier cumulative trauma injury. Where the employee does not elect, the employee can expect to deal with not only multiple defense QME’s but possibly multiple defense QME’s in several different specialties. As the WCJ pointed out in the underlying decision, the entire election process under Labor Code Section 5500.5 (lexis.com) [LC 5500.5 (Lexis Advance)] was intended to prevent the procedural morass that will ensue if multiple defendants are kept in a cumulative case. 

On the other hand, particularly in reference to a denied claim, a savvy injured worker may keep multiple carriers in the case and wait for the most favorable QME report to be obtained prior to making the election. The legal question then may become, once the election is made, would the elected against carrier be able to use the QME reports obtained by the non-elected carriers?

The WCJ’s legal analysis in Chanchavac is definitely sound. Where there is no election, each and every carrier has a due process right to discovery, including a QME report. However, whether an injured worker makes an election early in the case or waits and lets discovery play out for each of the carriers may come down to a strategy decision that has to be made by the injured worker.

Read the Chanchavac noteworthy panel decision.  

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