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Why Elections (Against a Particular Defendant) Matter

Hello, my beloved readers!

As we all squint at the sky, wondering how much rain we can expect in the days to come, I beg you to turn away for just a moment to review this blog post in the matter of Chanchavac v. LB Industries,  a panel decision recently denying applicant’s petition for removal.

This isn’t about any political election, of course.  It’s not even about that charming movie starring Matthew Broderick.

And Reese Witherspoon, of course…

It’s about an applicant’s right to elect against a particular defendant in a CT case.

The case is excellently summarized here by Lexis (Hat Tip to W.A.), but for those of you reluctant to bite the click-bait, I’ll run down the basis.  Applicant claimed a CT which covered more than one insurer.  Instead of electing against one particular defendant, as allowed in Labor Code section 5500.5(c), the applicant whispered “the more the merrier” and decided to keep everyone at the big-boy table.

Well, the folks sitting at the big-boy table couldn’t share or play nice, so each demanded a PQME, and each got one.  Applicant ended up having to submit to two panel QME examinations and having to tell her story twice.  Although she won the race against one defendant, securing a chiropractic panel, she lost against the other, and was forced to submit to an examination by an orthopedist.

The WCAB, after noting that a discovery order is not proper for reconsideration, also denied removal, reasoning that there is no proof of irreparable harm.

The Lexis editors do posit this question: can the original defendant, the one stuck with the chiropractic panel, now rely on the orthopedic panel QME’s report to defend against applicant’s claims?

I would direct your attention to Labor Code section 5703:  “The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters … (a) reports of attending or examining physicians… (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues.”

Your humble blogger hasn’t had much opportunity to litigate section 5703, but it looks like there’s a basis here to use other QME reports pertaining to this injured worker as “examining physicians.”  It also looks like if you have a scientific question, such as “is carpal tunnel a genetic or congenital condition” you can cite testimony from QMEs in other cases opining that this is the case.  (Who wants to be a hero and try this out?)

In any case, dear readers, this is a good thing.  The more times the allegedly injured worker has to answer questions, the more opportunities for inconsistencies to become apparent and alternative causes to be discovered.  So cry litigation, and let slip the dogs of medical-legal evals!

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