To Elect or Not to Elect—That Is the Question

I. INTRODUCTION

When the word election comes up, do you immediately think of politics? That is the context many of us associate with the word. As the subject of this article, though, and for workers’ compensation applicants and their attorneys, the term election has quite a different meaning. It refers to a seldom-used, often-misunderstood legal process in California workers’ compensation law. The process concerns an employee’s right to elect to proceed against one of the defendants in an individual workers’ compensation case. This article examines the what, how, why, and when of an employee’s right to make an election, including proper procedure, the legal and practical consequences of making an election, and strategies for you to carry one out.

II. WHAT IS A LABOR CODE §5500.5(c) ELECTION?

Labor Code section 5500.5(c) governs the employee’s right to an election: In any case involving a claim of occupational disease or cumulative injury occurring as a result of more than one employment within the appropriate time period set forth in subdivision (a), the employee making the claim, or his or her dependents, may elect to proceed against any one or more of the employers. Where such an election is made, the employee must successfully prove his or her claim against any one of the employers named, and any award which the appeals board shall issue awarding compensation benefits shall be a joint and several award as against any two or more employers who may be held liable for compensation benefits. To proceed with an election, you need three things: an injured employee, an allegation of a cumulative trauma/injury, and two or more defendants (employers or insurance companies). As an applicant attorney, you still have the burden of proving your client’s claim against any elected defendant, but once you have done that, the elected defendant or defendants become liable to pay all benefits due. An Award that issues in these cases will be one of joint and several liability against all defendants.

III. HOW DO YOU ELECT AGAINST A DEFENDANT?

Before you formally elect against one or more defendants, you are required to include all the defendants—that is, the employers and insurance companies—in the case. You can do this at the onset by including these parties on the Application for Adjudication of Claim, along with their respective periods of exposure. If at a later date additional parties are identified, you are required to file a Petition for Joinder and obtain an Order for Joinder. Once all parties are formally part of the case, you can file a Petition and Motion Seeking an Order Allowing Election. Subsequently, you should file a Declaration of Readiness to Proceed, copied on all parties. This affords due process to allow a party to object to the election. Ultimately, it is within the judge’s discretion whether to issue an Order Allowing Election.

Do not assume that the tail-end carrier is necessarily the appropriate defendant in the election. A judge may look at the length of coverage by each defendant, as the share of liability between defendants is an important consideration. A judge or the Workers’ Compensation Appeals Board (WCAB) may also consider whether electing against a particular defendant would result in significant prejudice or irreparable harm. (See Schrimpf v. Consolidated Film Industries, Inc.(1977) 42 Cal.Comp.Cases 602 (WCAB en banc). See also Roman Barrozo v. WCAB, Whiting-Turner Construction, Liberty Mutual Insurance (1993) 58 Cal.Comp.Cases157.) Another approach to seeking an Order Allowing Election is to include the election request in a settlement document, detailing the request and asking the judge to sign off on the election in the Award or Order Approving Compromise and Release. The elected defendant should detail the other defendants in the body of the settlement document and clearly state their reservation of rights under Labor Code section 5500.5 to seek contribution. However, this approach still requires you, before seeking the judge’s approval, to give the nonelected defendants notice of the request, which you should highlight in a letter with service of the draft settlement document.

IV. WHY MIGHT YOU CHOOSE TO ELECT AND PROCEED AGAINST A SINGLE DEFENDANT?

The public policy behind the right to seek an election is in line with the grand bargain of expeditiously providing benefits to an injured employee and, more specifically, to prevent delay, expense, and difficulties incurred by having to litigate a case against multiple defendants. It is much easier for you to keep track of the receipt of benefits from a single elected defendant who is required to administer all benefits in the case. An election also has a significant impact on discovery rights. Labor Code section 5500.5(c) includes the statement that “a defendant, subsequent to the election provided herein[,] shall not be entitled to participate in any of the proceedings prior to the appeal board’s final decision….” Only the elected defendant has complete discovery rights through the issuance of the Award. This means only the elected defendant can seek applicant’s deposition and participate in the medical-legal process (such as AME and QME evaluations and doctor depositions) and most other discovery relevant to the case. The nonelected defendants, though, still have a due process right, subsequent to the issuance of an Award through mandatory arbitration, to contest the issue of contribution (their share of liability). (See Labor Code section 5500.5(e); see also Umedbhai Parjapati v. Vesta Intermediate Funding, Inc., The Hartford, Extrumed, Inc., Republic Indemnity Company of California, 2016 Cal.Wrk.Comp. P.D. LEXIS 382, discussing the need for the nonelected defendant(s) to act timely to pursue discovery after the issuance of the Award on the contribution issue.) If discovery is limited to one defendant, the employee is not subject to duplicative medical legal evaluations and depositions; having a single defendant also clarifies which Medical Provider Network (MPN) to choose a physician from, as there may be a different MPN for each defendant.

V. WHEN IS THE APPROPRIATE TIME TO SEEK AN ELECTION IN A CASE?

The law does not direct the timing of seeking an election, except to require that all the defendants be part of the case, as noted earlier in this article, by way of the initial Application for Adjudication of Claim or Order for Joinder. Thereafter, you may consider a few scenarios to determine the timing of seeking an election. In a case where one of the defendants has already accepted liability while others have denied liability, you should give strong consideration to immediately electing against the defendant accepting liability. You may not elect against the California Insurance Guarantee Association (CIGA) if there is another solvent insurance carrier. (See Industrial Indemnity Co. v. WCAB (1997) 62 Cal.Comp.Cases 1661.) However, after confirmation of CIGA’s involvement in the case, you may seek an election against the solvent carrier.

VI. OTHER PRACTICAL CONSIDERATIONS

Discovery issues are something else to keep in mind. For example, you may prefer an AME over a QME, and one defendant may be agreeable to an AME. On reaching an AME agreement with that defendant, you may then proceed to seek an election. Another consideration is access to medical care. If you perceive that one defendant has a more favorable MPN, you may seek an election against that defendant. Sometimes one defendant takes the lead on discovery and other litigation matters while the other defendants sit idly by, awaiting the outcome. This allows you to delay considering an election. As the case is nearing its end, one defendant may step in and express an interest in settlement. You may negotiate a settlement with that defendant concurrent with the settlement and seek an Order Allowing Election against that defendant. This gives the employee closure and leaves the elected defendant the right to litigate contribution thereafter. On the other hand, when you want to try to secure maximum value of an early Compromise and Release (C&R) or are seeking a substantial C&R, you may not want to elect against a single defendant but instead, keep all potential defendants willing to contribute to the C&R involved in the case.

VII. CONCLUSION

When your client’s cumulative trauma claim involves multiple defendants, take a survey of the landscape of pending discovery, medical treatment, and settlement issues, consider each of the defendants, and determine whether an election will lead to a more expeditious and successful outcome of the case.

Adam Dombchik is a certified specialist in workers’ compensation law and the co-managing attorney at the applicants’ firm Gordon, Edelstein, Krepack, Grant, Felton & Goldstein. He is a past president of the California Applicants’ Attorneys Association and was named Applicant Attorney of the Year in 2011 by the Workers’ Compensation section of the State Bar (which became the Workers’ Compensation section of CLA).