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Applicant Abate Villalpando alleged injury to his head, neck, back, psyche, headaches, internal [system], and in the form of sleep disorder, while employed during the period February 1, 2016 to October 15, 2017 by G Burger, insured by Employers Preferred Insurance Company and State Farm Insurance Company administered by Sedgwick CMS; Golden Road Food Services DBA Fresh Brothers Pizza by Liberty Mutual; and Garden Fresh Restaurants DBA Souplantation by Travelers Insurance Company.

Defendants denied all liability for applicant’s claim. On June 13, 2023, the parties prepared a Pre-trial Conference Statement, indicating the need for adjudication of multiple issues, including injury AOE/COE.

On August 8, 2023, applicant filed a Notice of Election as against G. Burger and State Farm. On the same day, parties appeared at Mandatory Settlement Conference, and the matter was set for trial on September 13, 2023.

On September 13, 2023, the parties appeared at trial. However, applicant was unavailable, and the WCJ continued the matter to another trial date. The WCJ further issued a minute order, as follows: “AA’s Election against G Burger under the coverage of State Farm is presently DENIED due to objection to election by State Farm and also because this case involves multiple employers and carriers for a CT claim that may extend past the alleged period and also because the terminal employer/carrier is not G Burger and State Farm.”

On September 27, 2023, applicant filed a Petition for Removal from the WCJ’s September 13, 2023 order denying election.

On October 11, 2023, the WCJ issued an Order Vacating Denial of Election pursuant to WCAB Rule 10955(d) (Cal. Code Regs., tit. 8, § 10955(d)), in which the WCJ vacated the minute order denying applicant’s election, and substituted the following: “AA’s Election against G Burger under the coverage of State Farm is DEFERRED pending adjudication at trial of this threshold issue due to objection to election by State Farm and the need to determine whether the applicant’s alleged CT injury is AOE/COE.”

On October 19, 2023, applicant filed the instant Petition for Removal in response to the WCJ’s amendment of the minute order. Applicant avers his election “falls squarely within the language and legislative purpose of Labor Code § 5500.5,” and that he “should be permitted to proceed against one defendant only, G Burger, as elected, whereas the remaining defendants lose no rights whatsoever except that they must await issuance of applicant’s award prior to contribution issues.”

The WCAB granted the Petition for Removal and affirmed the Order, except that it amend it to reflect that the issue of applicant’s election is deferred pending the creation of an evidentiary record. The WCAB then returned this matter to the WCJ for further proceedings and decision in the panel decision of Villalpando v G Burger -ADJ10620763 (April 2024)

State Farm has filed an Answer, averring that “applicant’s right to elect one defendant is not unfettered; in fact, the Workers’ Compensation Appeals Judge can decline even to allow an election in his or her discretion” citing Schrimpf v. Consolidated Film Industries, Inc. (1977) 42 Cal.Comp.Cases 602 (appeals board en banc)). State Farm contends that the fact that it has five more days of coverage than codefendant Employers Preferred Insurance Company “is not a compelling basis under which to elect against a carrier when considering that for the duration of the case, applicant had engaged in direct litigation and discovery with Employers.”

The WCAB panel noted that “It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence.” (Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Board en banc)

Here, the record does not adequately set forth the arguments advanced by the parties, or the evidence relied upon by the WCJ in determining initially to deny applicant’s election pursuant to section 5500.5, and later to defer the election.”