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If Applicant Fails To Elect Against a Defendant, Each Defendant Has a Right to Conduct Discovery, Including Qualified Medical Evaluation


(2015) 2015 Cal. Wrk. Comp. P.D. Lexis 516


Applicant alleged cumulative trauma from August 1, 2012 through August 1, 2013. During the relevant time, the defendant was insured by both Sentry Insurance and Twin City Insurance Company. Applicant did not elect against either defendant (Labor Code § 5500.5).

Applicant and Twin City engaged in the Panel QME selection process and a chiropractic QME was selected. Sentry requested its own QME panel in the specialty of orthopedics. Applicant objected to a second QME panel and the issue was tried. The Workers’ Compensation Judge found that Sentry was entitled to its own QME.

Applicant filed a Petition for Removal which was denied.

The WCAB adopted the Workers’ Compensation Judge’s Report and Recommendation in which he explained that each defendant has its own competing interests and is, therefore, entitled to conduct its own discovery including medical/legal evaluations. If the applicant wants to avoid the possibility of “dueling reports”, she could simply elect against one of the defendants as allowed by Labor Code § 5500.5. If she did not wish to designate one defendant with whom she wants to litigate, she must litigate with all of them, all of whom in turn must be permitted to defend their interests as they see fit.