SPORTS INJURY
CASES
IN
CALIFORNIA
Bradford & Barthel, LLP
Sports Law Division
Chris P. Stettler, Esq.
Before we get started…
Certificates will be emailed w/in 48
hours
MCLE credits for attorneys not offered
today
Access PowerPoint at:
www.bradfordbarthel.com
> Education
> Upcoming Webinars
To control background noise,
attendees will be muted for entire
presentation
We encourage questions which can be
submitted through your GoToWebinar
Panel; they will be answered at the
end of the presentation
Sports Injury Cases in
California
A.
Professional Athlete Claims in CA
B.
Jurisdictional Issues
C.
Competent and Knowledgeable
Representation
D.
Contract Cases
E.
Forum Clauses
F.
Labor Code Section 3600.5(b)
Employees Temporarily in State
Working
G.
New Labor Code Section 3600.5
Effective September 15, 2013
H.
Constitutional Due Process Issues
I.
Medical/Legal
J.
Bifurcation of Threshold Issues
K.
Which Rating Schedule Applies
A. Professional Athlete
Claims in California
Although the majority of states recognize
professional athletes as workers under the
Worker's Compensation statutes, not all
states recognize the same type of workers’
compensation claims. Under a cumulative
trauma claim, the worker claims to suffer
chronic injuries due to frequent and
repetitive activities or a repeated injury. An
important distinction between a specific and
cumulative trauma injury is when the clock
for the Statue of Limitations begins to run.
Generally, for a specific injury claim, the
Statue of Limitations begins on the date of
injury. For cumulative trauma claims, the
clock begins when the worker is diagnosed.
Hence, cumulative trauma claims are
particularly attractive to professional
athletes because their injuries may not
manifest until after their career. Only a
handful of states recognize cumulative
A. Professional Athlete
Claims in California
More than two thirds of all cumulative
trauma claims filed by athletes in California
are from out-of-state. On average, 34 new
claims are filed each month and the
California Insurance Guarantee Association
has paid nearly $42 million in claims to
professional athletes since 2002. The
average cost to settle an NFL player’s
workers’ compensation claim is over
$200,000. The cost, coupled with the high
volume of claims (4,500 filed against NFL
teams in California since 2006) has resulted
in an estimated $1,000,000,000 expense for
NFL teams. (Workers’ Compensation and
The Professional Athlete, 12/29/13.)
A. Professional Athlete
Claims in California
California Assembly Bill 1309 enacted in
2013 provides some relief to professional
sports teams by limiting the eligibility of
who can file a cumulative trauma claim in
California. Generally, only those players
that spend "more than 20% of their
professional time in California or worked
for a California-based team for part of their
professional or semi professional career"
can file a cumulative trauma claim in
California. However this only applies to
claims filed after September 15, 2013.
The purpose of the bill was to correct
abuses in the system.
Workers’ compensation claims for
professional athletes are being filed with
greater creativity, the trend of which is
expected to continue.
B. Jurisdictional Issues
The California workers’ compensation law
applies to all industrial injuries occurring
within the state. It also applies to any injury
occurring outside the state if the contract of
employment was made in California (Labor
Code Section 3203, 3600.5, 5305). An
employment contract is deemed made in
California if it is accepted in California.
(
Travelers Ins. Company vs. WCAB
(1967),
68 Cal 2D 207, 32 Cal Comp Cases 527.)
California's compensation statute applies to
an injury received outside California if the
employee is regularly employed here, even if
the contract of hire was not made here.
(Labor Code Section 3600.5 (a))
However, when the contract is not made in
California, and the employee is not regularly
employed here, the mere fact that the
employee is a California resident is not
sufficient to confer jurisdiction on the Appeals
Board. (
Johnson vs. WCAB
(1988) 53 Cal
Comp Cases 495 (Writ Denied)).
C. Competent and Knowledgeable
Representation
Constitutional Issues
In a case filed prior to September 15, 2013 and thus not subject to application of the 2013 amendments to Labor Code Section 3600.5, the Court of Appeal, annulling an Appeals Board decision and remanding to the Board with directions to dismiss the employee's application for workers compensation benefits, held that California did not have sufficient interest in the case to apply California workers’ compensation law and to retain jurisdiction over it. The case involved a professional athlete who played one of 34 games in California. The issue, the court noted, was governed by the due process and full faith and credit clauses of the United States Constitution, and the test was whether California had an interest that was legitimate and
substantial. If California lacked a sufficient relationship with employee’s injuries, requiring the employer to defend the case in the state of California would be a denial of due
process, meaning that the courts of this state would lack the authority to act and would lack subject matter jurisdiction. The court stated that the effect of a single game on her injury was "at best de minimis." (Federal Insurance Company vs. WCAB (Johnson) (2013) 221 Cal App 4th 1116, 78 Cal Comp Cases 1257.)
It is important that counsel for defendant is prepared to move beyond the WCAB to the Court of Appeal as the WCAB does not have authority to entertain
Constitutional Issues. Bradford and Barthel has a
dedicated and proven Appellate Dept.
C. Competent and Knowledgeable
Representation
Ratings and Application of the AMA
Guidelines
Most professional athlete claims, especially
football players, have ratings that are very
high even when applying the AMA Fifth
Edition Guidelines regarding whole person
impairment. Generally, anywhere from 3 to 6
medical-legal's are obtained by an applicant
pursuing a professional athlete claim to
establish a wide range of injuries on a
cumulative trauma basis. It is imperative to
properly analyze whether the impairment
assigned by the evaluating physician has
been properly applied under the guidelines.
Thus, rating and analysis of the reports is a
critical element in defending and litigating the
claims.
(See Bradford and Barthel Rating Dept. at
home web page – Phil Billman.)
C. Competent and Knowledgeable
Representation
Anti-Merger Doctrine
Most professional athlete claims are comprised of a
combination of specific injury claims and one cumulative trauma claim throughout the end of their career. The Anti-Merger Doctrine in Labor Code Section 3208.2 states "when disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with
respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit." The legislative intent of Labor Code
Section 3208.2 was to nullify court decisions allowing the merger of past specific injuries into a cumulative injury. The court cases giving rise to the Anti-Merger Statute addressed, for the most part, past specific injuries to a worker which were merged into a later cumulative injury thus allowing recovery benefits otherwise barred by the Statute of Limitations. Merging defeated the purpose of the Statute of Limitations and left insurance carriers and employers open to risk for lengthy periods of time.
In defending professional athlete claims it is
imperative to critically evaluate how many injuries, specific or cumulative trauma, are involved, and then properly apply causation and apportionment rules to the injuries.
C. Competent and Knowledgeable
Representation
New Labor Code Section 3600.5
Although new Labor Code Section 3600.5 still allows
players to file cumulative trauma claims, generally
only those players that spend "more than 20% of their
professional time in California or work for a
California-based team for part of their professional or
semi-professional career" can file cumulative trauma claim
in California. (Labor Code Section 3600.5.) This
labor code section enacted by California Assembly
Bill 1309 reflects the general trend by both the
legislature and courts to limit the number of
professional athletes throughout the country who can
file claims in California for cumulative trauma injuries.
This bill, in conjunction with the recent case of
Federal Insurance Company vs. WCAB
(Johnson -
2013) clearly have spelled the trend of the legislature
and the courts to limit such claims. A review of cases
within the last year also shows greater frequency by
the WCAB and Court of Appeal to find there is no
California jurisdiction to adjudicate the claim.
Apportionment and Causation
It is critical to the legal defense of the claim to
properly and thoroughly explore and apply
apportionment and causation principles to make sure
that the team or employer is only liable for disability or
injury directly attributable to their team.
D. Contract Cases
Allen vs. Milwaukee Bucks (2013)
, Cal. Wrk.
Comp. P.D. Lexis 138
WCAB found jurisdiction for industrial injuries
between 1995 and 1999 and returned matter to
trial level for further development of record
regarding whether applicant was hired in
California for purposes of conferring jurisdiction
pursuant to Labor Code Section 3600.5 (a) and
5305. The WCAB found that while applicant’s
agent negotiated the contract with defendants in
California and there was some evidence that
applicant authorized his agent to form a contract,
it was unclear from the existing record whether
the agent actually accepted contract before
applicant signed written contract in Milwaukee
and that in order to find jurisdiction there must be
substantial evidence that employment was
actually accepted in California, not merely
discussed or negotiated.
D. Contract Cases
Jenkins vs. Arizona Cardinals (2012)
, Cal. Wrk.
Comp. P.D. Lexis 189
WCAB affirmed its prior decision in the same
case determining that under Labor Code Section
3600.5(a) and 5305 the WCAB did not have
jurisdiction over applicant’s claim against the
Arizona Rattlers for injuries to multiple body parts
while playing professional football,
notwithstanding that applicant’s agent negotiated
and signed the contract for hire in California. The
WCAB found that applicant had the ability to
decline the contract negotiated by his agent if he
did not want the job, that applicant’s signature on
contract was not a mere condition subsequent
that did not prevent formation of contract, and
that when an employee has a right to entirely
reject a written contract and does not
unequivocally accept contract until signing it
outside of California, then contract of hire is not
made in California.
D. Contract Cases
Johnson vs San Diego Chargers (2012), Cal. Wrk. Comp. P.D. Lexis 354 (WCAB panel decision finding no California subject matter jurisdiction)
WCAB held there was no jurisdiction under Labor Code Section 3600.5(a) and 5305 over professional football player’s claim against three different NFL teams for
cumulative trauma when the WCAB found: 1. Applicant was not located in California at the time applicant’s contract for hire was accepted, 2. Only connection between applicant’s contract and state of California was location of applicant’s agent, 3. Agent’s signature on contract before applicant signed contract in Kansas City was not determinative of contract’s acceptance, as contract for hire expressly stated that the agent did not have authority to bind applicant and that applicant was only one authorized to accept contract and 4. WCAB found the contract was not accepted by
applicant’s agent in California but rather by applicant outside of the state, thereby depriving the WCAB of jurisdiction.
Johnson vs. WCAB (1988), 53 Cal. Comp. Cases 495 (Writ denied).
The Appeals Board did not have jurisdiction over injuries sustained by California resident off coast of Oregon where applicant was neither hired in California, nor regularly
D. Contract Cases
Douglas vs. New York Giants (2012)
, Cal. Wrk. Comp.
P.D. Lexis 510 (2012) (WCAB panel decision)
WCAB found there was jurisdiction over professional
football ballplayer’s claim against NFL Europe during
period June 13, 2000 to June 30, 2001 when offer of
employment occurred by phone at applicant’s home in
California and he accepted essential terms of
employment by phone prior to traveling to Florida.
The WCAB found that the offer and acceptance by
phone constituted a contract for hire made in
California for purposes of jurisdiction over applicant’s
out-of-state injuries pursuant to Labor Code Section
3600.5(a) and 5305. The fact that applicant signed
the actual contract in Florida, had to complete a
physical examination outside of California, had to
compete in training camp for a position were not
dispositive of whether he entered into an agreement
with NFL Europe over the phone in California. Also,
the fact that the contract could be terminated by
applicant or by NFL Europe did not negate existence
of the contract.
E. Forum Selection
Clauses in Contract
Matthews vs. National Football League Management
Council
, 77 Cal. Comp. Cases 711 (2012 United
States Court of Appeals for the 9th Circuit)
Applicant sought Workers’ Compensation benefits in
California and defendants contended that the
application violated the player's employment contract
which requires that all workers’ compensation claims
be decided under Tennessee law. The parties
submitted the dispute to arbitration and the arbitrator
found that the player violated his employment contract
by filing a California workers’ compensation claim. On
appeal the court rejected applicant’s argument that the
arbitration award contravened California's workers’
compensation policy, federal labor policy, and the full
faith and credit clause. The court rejected these
arguments and further stated it was not even clear
that California would extend workers’ compensation
benefits regarding the player’s alleged injuries due to
his limited contacts with the state.
E. Forum Selection
Clauses in Contract
McKinley vs. Workers' Compensation Appeals Board
(Arizona Cardinals), 78 Cal. Comp. Cases 872, (2013 Writ of Review denied)
WCAB En Banc declined to exercise jurisdiction over the claim of a professional football player’s cumulative trauma injury when there was a reasonable mandatory forum
selection clause in the employment contract specifying that claims for workers’ compensation must be filed in forum other than California and there was limited connection to
California with regard to applicant’s employment and claimed injuries. The WCAB also found that it had jurisdiction to
determine if it was the proper forum to adjudicate applicant’s workers compensation claim because California had
personal jurisdiction over defendant. The WCAB further
found that applicant was not a resident of California when he contracted to play for defendant, that his contracts of
employment were made in Arizona, that the majority of applicant’s work duties were performed in Arizona and that the forum selection clause is presumed valid as it was not a product of fraud or overreaching. The WCAB further found that the forum selection clause was not contrary to California fundamental public policy and the applicant as the party
challenging the validity of the mandatory forum selection clause, did not carry his burden of showing the clause was unreasonable.
E. Forum Selection
Clauses in Contract
Williams vs. Jacksonville Jaguars (2013),
Cal. Wrk.
Comp. P.D. Lexis 88 (2013 panel decision)
The WCAB declined to exercise jurisdiction over
applicant’s claimed industrial cumulative trauma injury.
The WCAB found that applicant was bound by the
forum selection clause in the contracts between
himself and the Jaguars from 2007 through 2011
under which the parties contractually agreed that any
workers’ compensation claims will be brought in the
state of Florida. The WCAB further found there was
no indication that the clause was a product of fraud or
overreaching, that enforcement of the clause would be
unreasonable or unjust given that applicant selected
the forum where his team was located and where he
resided, and that proceeding with the claim in Florida
would not be gravely difficult or that enforcement of
the clause would contravene any public policy. The
WCAB further found that the applicant filed his claim
in California solely because California’s laws,
particularly the statute of limitations, were more
favorable to his claim injury.
F.
Labor Code Section
3600.5(b) - Employees
Temporarily in State Working
An employee who has been hired outside of this state and his or her employer shall be exempt from the provisions of this division while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of the state other than California, so as to cover the employee’s work while in this state if both of the following apply:
The Extraterritorial provisions of this division are recognized in the other state
The employers and employees who are covered in the state are likewise exempt from the application of the workers’ compensation insurance or similar laws of the other state.
In any case in which Paragraph 1 above is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury whether resulting in death or not, received by the employee while working for the employer in this state.
It should be noted that the wording in Labor Code Section 3600.5(b) was changed in 2014. The cases below reflect the prior language.
F.
Labor Code Section
3600.5(b) - Employees
Temporarily in State Working
Carol vs. Cincinnati Bengals, 78 Cal. Comp. Cases 655; 2013 Cal. Wrk. Comp. Lexis 102 (2013 En Banc WCAB decision)
The Appeals Board En Banc, rescinding the Workers’
Compensation Judge's order and dismissing the defendant as a party, held that the employee and the employer are exempted by Labor Code Section 3600.5(b) from the
California workers’ compensation laws, when the employee was hired outside of California and:
1. The employee is temporarily within California doing
work for the employer
2. The employer furnished coverage under the
workers’ compensation or similar laws of another state that covers the employees employment while in California
3. The other state recognizes California's
extraterritorial provisions and
4. The other state likewise exempts California
employers and employees covered by California's workers’ compensation laws from the application of
F.
Labor Code Section
3600.5(b) - Employees
Temporarily in State Working
The applicant was a former professional
football player and was hired outside
California. The employee and the
employer were temporarily in California for
one game. The employer furnished
workers’ compensation under Ohio law
that covered the employee's employment
while in California. Ohio recognized the
extraterritorial provisions of other states,
including California, and Ohio likewise
exempts California employers and
employees covered by California workers’
compensation laws from application of its
workers’ compensation laws.
F.
Labor Code Section
3600.5(b) - Employees
Temporarily in State Working
Foster vs. Toronto Raptors (2013)
, Cal. Wrk. Comp.
P.D. Lexis 253 (2013 WCAB panel decision)
The WCAB held that the WCAB had jurisdiction over
professional basketball player’s claim against various
defendants and that it did not matter whether
applicant was "regularly employed" in California as
described in Labor Code Section 3600.5(a) because
jurisdiction was found based upon work related
injuries that applicant sustained while temporarily in
California playing basketball. The WCAB further
found it was irrelevant if applicant was "temporarily" in
California within the meaning of Labor Code Section
3600.5(b) while he was playing basketball because
defendant did not prove all elements necessary to
obtain exemption provided in Labor Code Section
3600.5(b). Lastly, the WCAB did not endorse the
Workers’ Compensation Judge's view that applicant’s
payment of California income tax on California
F.
Labor Code Section
3600.5(b) - Employees
Temporarily in State Working
Booker vs. Cincinnati Bengals (2012)
, Cal. Wrk.
Comp. P.D. Lexis 113 (2012 panel decision)
The WCAB held that they did not have subject matter
jurisdiction over applicant’s claim against Cincinnati
Bengals for industrial injuries suffered by applicant
while playing professional football in California for the
period specified when WCAB found no basis for
territorial jurisdiction over Bengals’ pursuant to
"temporarily" employed provisions of Labor Code
Section 3600.5(b) because all four conditions of that
labor code section were met as applicant was
temporarily employed in California because he played
only one game in California during his three seasons
playing. The Bengals provided prima facie evidence
of self-insurance under the laws of Ohio, which are
similar to workers’ compensation laws of California,
the Bengals offered evidence that players injured
while playing in California were covered by Ohio's
worker's compensation laws, and Ohio recognizes
California's extraterritorial provisions and exempts
California employers and employees covered by
California's workers’ compensation laws from
application of Ohio's workers’ compensation laws. The
WCAB further found it would not exercise jurisdiction
based on the parties’ forum selection clause.
G. New Labor Code
Section 3600.5 - Effective
September 15, 2013
3600.5.
(a) If an employee who has been hired or is regularly working in the state receives personal injury by accident arising out of and in the course of employment outside of this state, he or she, or his or her dependents, in the case of his or her death, shall be entitled to compensation according to the law of this state.
(b) (1) An employee who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers‘ compensation insurance coverage under the workers'
compensation insurance or similar laws of a state other than
California, so as to cover the employee's work while in this state if both of the following apply:
(A) The extraterritorial provisions of this division are recognized in the other state.
(B) The employers and employees who are covered in this
state are likewise exempted from the application of the workers' compensation insurance or similar laws of the other state.
(b) (2) In any case in which paragraph (1) is satisfied, the benefits under the workers' compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury, whether resulting in death or not, received by the employee while working
G. New Labor Code
Section 3600.5 - Effective
September 15, 2013
(c) (1) With respect to an occupational disease or cumulative injury, a professional athlete who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the professional athlete is temporarily within this state doing work for his or her
employer if both of the following are satisfied:
(A) The employer has furnished workers' compensation insurance coverage or its equivalent under the laws of a state other than California.
(B) The employer's workers' compensation insurance or its equivalent covers the professional athlete's work while in this state.
(c) (2) In any case in which paragraph (1) is satisfied, the benefits under the workers' compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the
employer for any occupational disease or cumulative injury, whether resulting in death or not, received by the employee while working for the employer in this state.
(c) (3) A professional athlete shall be deemed, for purposes of this subdivision, to be temporarily within this state doing work for his or her employer if, during the 365 consecutive days immediately preceding the professional athlete's last day of work for the employer within the state, the
professional athlete performs less than 20 percent of his or her duty days in California during that 365-day period in California.
G. New Labor Code
Section 3600.5 - Effective
September 15, 2013
(d) (1) With respect to an occupational disease or cumulative injury, a professional athlete and his or her employer shall be exempt from this division when all of the professional athlete's employers in his or her last year of work as a professional athlete are exempt from this division pursuant to subdivision (c) or any other law, unless both of the following conditions are satisfied:
(A) The professional athlete has, over the course of his or her professional athletic career, worked for two or more seasons for a California-based team or teams, or the professional athlete has, over the course of his or her professional athletic career, worked 20 percent or more of his or her duty days either in California or for a California-based team. The percentage of a professional athletic career worked either within California or for a California-based team shall be determined solely by taking the number of duty days the professional athlete worked for a California-based team or teams, plus the number of duty days the professional athlete worked as a professional athlete in California for any team other than a California-based team, and dividing that
number by the total number of duty days the professional athlete was employed anywhere as a professional athlete.
(B) The professional athlete has, over the course of his or her professional athletic career, worked for fewer than seven seasons for any team or teams other than a California-based team or
teams as defined in this section.
(d) (2) When subparagraphs (A) and (B) of paragraph (1) are both satisfied, liability for the professional athlete's occupational disease or cumulative injury shall be determined in accordance with Section 5500.5.
(e) An employer of professional athletes, other than a California-based team, shall be exempt from Article 4 (commencing with
Section 3550) of Chapter 2, and subdivisions (a) to (c), inclusive, of Section 5401.
G. New Labor Code
Section 3600.5 - Effective
September 15, 2013
(f) For purposes of this section, a certificate from the duly authorized officer of the appeals board or similar department of another state certifying that the employer of the other state is insured in that state and has provided extraterritorial coverage insuring his or her
employees while working within this state shall be prima facie evidence that the employer carries workers' compensation insurance.
(g) For purposes of this section, the following definitions apply: (1) The term "professional athlete" means an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, ice hockey, or soccer.
(2) The term "California-based team" means a team that plays a majority of its home games in California.
(3) The term "duty day" means a day in which any services are performed by a professional athlete under the direction and control of his or her employer pursuant to a player contract.
(4) The term "season" means the period from the date of the first preseason team activity for that contract year, through the date of the last game the professional athlete's team played during the same contract year.
(h) The amendments made to this section by the act adding this subdivision apply to all claims for benefits pursuant to this division filed on or after September 15, 2013. The amendments made to this section by the act adding this subdivision shall not constitute good cause to reopen any final decision, order, or award.
(i) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this section that can be given
H. Constitutional Due
Process Issues
Federal Insurance Company vs. Workers'
Compensation Appeals Board (Adrian Johnson)
, 221
Cal. App. 4th 1116; 78 Cal. Comp. Cases 1257 (2013,
Court of Appeal of California, 2nd Appellate District,
Division 5)
Applicant, a former professional basketball player,
filed a cumulative trauma workers’ compensation
claim in California. The court held California did not
have a significant or sufficient interest in the matter to
apply its workers’ compensation law and to retain
jurisdiction over the case. The employment
relationship is in Connecticut where the team the
applicant played for was located. She signed her
contract in New Jersey. The court found that the
places of the applicant's injuries, employment
relationship, employment contract, and residence, all
potential connections for the application of a state's
workers’ compensation law, did not have any
relationship to California. California did not have a
significant enough relationship with applicant’s injuries
for the application of California's workers’
compensation laws to be reasonable. California had
no obligation to apply the workers’ compensation law
of any other state. As a matter of due process,
H. Constitutional Due
Process Issues
The court began its analysis indicating that
certain threshold issues are reviewable by way of
a Writ of Review before there is a final order in
the case. Examples of such issues include
whether the injuries arose out of and in the
course of employment, the territorial jurisdiction
of the board, the existence of an employment
relationship, and the applicability of the statute of
limitations. The court noted these are threshold
issues that are potentially dispositive of the case.
Review of such issues may resolve the case
without the time, effort, and expense of fully
litigating a case. Where the employer or carrier
asserts in good faith and with reasonable cause
that it has no statutory liability at all, and the
board has decided that issue on review after
bifurcated hearing, prompt judicial review, may
avoid the necessity of further litigation.
The court identified the issue as to which state’s
workers’ compensation laws applied. The court
characterized the issue as a "conflicts issue,"
which arises when there are contacts in multiple
states.
H. Constitutional Due
Process Issues
Under general principles, the court stated if an employer or insurer are subject to workers’ compensation law of a state that does not have a sufficient connection to the matter they are deprived of due process. The court noted that if the workers’ compensation law of another state exclusively should apply California does not have a sufficient contact with the matter, California must, under the full faith and credit clause, accede to the other state to provide a forum. Regarding jurisdiction, the court stated that the test is not whether the interest of the forum state is relatively greater, but only whether it is legitimate and substantial in itself. The court stated that the forum state can grant relief if it has some substantial interest in the matter. The court then summarized when a state court may award relief to a person under its workers’ compensation laws. The court stated that a state may do so if the injury occurred in the state; if the
employment is principally located in the state; if the employer supervised the employee’s actions from a place of business in the state; if the state is that of the most significant relationship to the contract of employment with respect to the issue of the workers’ compensation rules; if the parties have agreed in the contract of employment or otherwise that the forum should be determined under the Workers’ Compensation Act of the state; or if the state has some other reasonable relationship to the occurrence, the parties, and the employment. The court noted under the due process clause of the 14th amendment, a state of the United States may apply its local law to affect legal interest if its relationship to a person, thing or
H. Constitutional Due
Process Issues
The court then commented that if multiple states’ laws apply it is widely accepted that the "rights created by the
compensation act of one state cannot ordinarily be enforced in another state or in a federal court."
The court went on to state the test of jurisdiction is whether the forum state has a legitimate interest. If it does, that state will grant relief. If it does not, it will deny relief. Thus, if the forum state lacks a sufficient connection to the matter, it will, in effect, give full faith and credit to the workers’
compensation law of another state that has such sufficient connection to the matter.
Regarding the facts in the case, the court stated the effects of participating in one of 34 games do not amount to a
cumulative injury warranting the implication of California law. A state must have a legitimate interest in the injury. A single basketball game played by a professional player does not create a legitimate interest in injuries that cannot be traced factually to one game.
The court summarized the facts and stated that the places of Johnson's injuries, employment relationship, and
employment contract, residence, all possible connections for the application of the state's workers’ compensation laws, do not have any relationship to California. The court therefore found that as a matter of due process, California does not have the power to entertain Johnson's claim.
I. Medical/Legal
Ransom vs. Jacksonville Jaguars
, 2013 Cal.
Wrk. Comp. P.D. Lexis 122 (2013 - panel
decision)
WCAB found that when California jurisdiction is
being contested a defendant should not be held
liable to pay lien claims and advance
medical-legal expenses on a claim. Additionally, a
Petition for Reconsideration is proper when a
party is found liable for payment of certain
expenses, including expenses not yet incurred.
Regarding the medical-legals, the WCAB found
the issue of jurisdiction should be determined
prior to concluding defendant is liable for
payment. Alternatively, the court noted that the
Appeals Board does have limited jurisdiction to
determine whether it is the proper forum to
adjudicate an injury claim. The WCAB stated
additionally that if a case cannot proceed without
payment of medical legal expenses, the workers’
compensation judge may issue an award against
another defendant subject to jurisdiction, which
can later be the subject to contribution
J. Bifurcation of
Threshold Issues
Ortega vs. Hinas Mercy Southwest
Pharmacy
, 2013 Cal. Wrk. Comp. P.D. Lexis
335 (2013 - panel decision)
The WCAB held that while 8 California Code
of Regulations Section 10560 generally
requires parties to try all issues in a single
proceeding, defendant in the case showed
good cause to bifurcate the statute of
limitations issue because disposition of that
issue would clarify the posture of all three of
applicant’s cases and potentially allow
defendant to avoid litigation expenses.
The court cited WCAB rule 10560 which
provides the parties are expected to submit
for decision all matters properly at issue at a
single trial. However, a workers’
compensation judge may order that the
issues in a case be bifurcated and tried
separately upon a showing of good cause.
K. Which Rating
Schedule Applies
Nittel vs. San Jose Sharks (2010), Cal. Wrk. Comp. P.D. Lexus 596 (2010 - panel decision)
The WCAB found that the 2005 Permanent Disability Rating Schedule applied to rate permanent disability incurred by a professional hockey player and that the exception to
application of the 2005 schedule did not apply under Labor Code Section 4660(d). The WCAB found that there was no evidence defendant had a duty to provide a Labor Code Section 4061 notice to applicant following payment of temporary disability benefits or salary continuation.
The court went on to describe the requirements of Section 4660(d) which indicates that the 2005 schedule should be applied to injuries on or after January 1, 2005 effective date of the Rating Schedule, subject to the specified exceptions for "compensable claims arising before January 1, 2005…” The court stated that the 1997 Rating Schedule may only be used to rate permanent disability arising from compensable injuries that occur prior to January 1, 2005 were one of the exceptions described in the third sentence of section
4660(d) has been established. If none of the exceptions exist than the 2005 Rating Schedule applies.
In this particular case applicant did not carry his burden of proof to establish that he received salary continuation in lieu of temporary disability benefits for the injuries he alleged and therefore the 2005 Rating Schedule applied.
Christopher P. Stettler, Esq.
Bradford & Barthel, LLP
404 Camino del Rio South, Suite 510
San Diego, California 92108
(619) 641-7942
Certificates emailed w/in 48 hrs
Access PPT at
www.bradfordbarthel.com
Did you submit a question we did not have
time to answer? A response will be emailed to
you directly.
A video recording of this Webinar will be
posted on our website w/in 48 hrs.
