California: Keys to Obtaining Jurisdiction

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Workers’ Compensation Appeals Board (WCAB) jurisdiction is one of the most important threshold issues that an injured worker must establish in order to claim benefits. (See Labor Code, Part 4 Compensation Proceedings, Chapter 1 – Jurisdiction, §§ 5300-5413.) A plethora of cases have issued lately, primarily Noteworthy Panel Decisions (NPDs) on this very issue.

I. Professional Athletes – Contract of Hire in California

One of the frequently litigated jurisdictional issues is whether professional athletes may claim workers’ compensation (WC) benefits in California, while employed by a team based outside of California. The answer is, “It depends.” One way that a non-California resident might establish California jurisdiction in order to obtain WC benefits is if the contract of hire occurred in California. (See Labor Code §§ 3600.5 and 5305.)

In the recent writ denied case of Travelers Indemnity v. WCAB (Clemons) (2017) 82 Cal. Comp. Cases 1204 (writ den.), the applicant, Crance Clemons, a professional football player, attempted to prove jurisdiction by claiming that his agent was in California when he accepted employment with the Indianapolis Colts. Applicant argued this was consistent with Labor Code § 3600.5, which provides in relevant part:

If an employee who has been hired…in the state receives personal injury by accident arising out of and in the course of employment outside of this state, he or she…shall be entitled to compensation according to the law of this state. (Emphasis added.)

The Workers’ Compensation Judge (WCJ) determined that the WCAB did not have jurisdiction over this case because he believed the contract of hire did not occur in California. The WCAB reversed the WCJ’s decision, finding that the contract of hire did occur in California.

Specifically, applicant testified, that his sport’s agent (whose office address is located in Beverly Hills, California) had his authority to accept an offer of employment on behalf of applicant. Applicant testified that when his agent called and said, “Congratulations, you’re a Colt, here’s what they gave you,” applicant interpreted that to mean that an offer of employment had been accepted by his agent on his behalf.

Given that the WCJ stated that applicant’s testimony was credible, the WCAB found this testimony sufficient to support applicant’s burden of proof on this issue as to whether or not the employment contract occurred in the state of California.

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II. Medical Treatment

Another commonly litigated jurisdictional question is, under what circumstances might a WCJ have the power to determine a disputed medical treatment issue.

After SB863 was enacted, effective 1/1/2013, there was a paradigm shift in the manner in which medical treatment disputes were adjudicated. Prior law held that the WCAB had jurisdiction to determine medical treatment disputes. However, by enacting SB863, the legislature intended that future medical treatment disputes should be resolved solely by the Utilization Review (UR) process, in conjunction with the Independent Medical Review (IMR.) (For IMR rules and regulations, see Labor Code §§ 4610.5 and 4610.6 and 8 Cal. Code Reg. §§ 9792.10.1–9792.10.9.) The law and regulations are quite clear. If the UR decision is timely, a party is entitled to appeal that decision ONLY through IMR.

However, what happens if the UR decision is NOT timely, or is NOT timely communicated? The WCAB answered that question in the case of a Significant Panel Decision (SPD) entitled Bodam v. San Bernardino County (2014) 79 Cal. Comp. Cases 1519 (Appeals Board significant panel decision), by holding that the provisions of Labor Code §§ 4610(g)(1) and 4610(g)(3)(A) and AD Rule 9792.9.1(e)(3) mandate that:

1. A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision;

2. A UR decision that is timely made but is not timely communicated is untimely;

3. When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

As a result, when the UR decision is untimely, or is untimely communicated, the WCAB recaptures jurisdiction to resolve medical treatment disputes. Recent case law has found all sorts of interesting twists to this holding. A particularly interesting case is the Noteworthy Panel Decision (NPD) of Hall v. Western Medical, 2017 Cal. Wrk. Comp. P.D. LEXIS 581.

In the Hall case, the requesting physician prepared a Request for Authorization (RFA) for companion home care. The physician indicated that it should be treated as an “expedited” UR review (See 8 Cal. Code Reg. § 9792.9.1(c)(4)) as opposed to a standard UR review. (NOTE: Expedited UR reviews must be completed in a 72-hour time frame, whereas standard UR reviews generally allow for a five business day turnaround time.)

In this case, defendant treated the RFA as a standard review because the requesting physician did not “document the need for an expedited review” and because the requested treatment was “not of a nature that required an expedited review.” (Petition for Reconsideration, 3:11, 4:6–8.)

Since the RFA was treated by the UR reviewer as a standard review as opposed to an expedited review, it didn’t meet the expedited review timeframe of 72 hours. Applicant argued the UR review was untimely, and therefore the WCAB had jurisdiction to determine the medical treatment dispute.

The WCAB agreed with applicant, explaining, “No statute or case allows a defendant to ignore the statutory and regulatory time frames for acting by simply declaring that the RFA did not meet the criteria for expedited treatment.”

III. Death of Injured Worker After Order C&R

Given the precarious health condition of many injured workers, there have been many occasions when the injured worker has passed away before he or she has had an opportunity to cash the check representing the proceeds from his or her Compromise and Release (C&R).

The law is clear that once a Compromise and Release has been executed, the WCAB retains jurisdiction to approve or disapprove the document even when the injured worker dies prior to filing the executed C&R with the WCAB (See Chavez v. Industrial Acc. Comm. (1958) 49 Cal.2d 701, 23 Cal. Comp. Cases 38 (Supreme court En Bank), and Light v. Summit Drilling (1979) 44 Cal. Comp. Cases 1083 (WCAB en banc).)

But what happens in the case where the injured worker dies after the WCAB has issued an Order Approving the C&R? Does the WCAB have jurisdiction to decide how the proceeds of the C&R are to be distributed? Or, is jurisdiction of the matter transferred to the local Probate court to determine who gets the money?

In the writ denied case of Alley v. Workers’ Comp. Appeals Bd. (2002) 67 Cal. Comp. Cases 164 (writ den.), the WCAB affirmed the WCJ determination that the WCAB retains jurisdiction. However, the WCAB disagreed with the WCJ as to how the money should be distributed.

In this case, the injured worker, Mr. Alley, died on the exact same day he received the proceeds from the C&R agreement he had entered into with defendant. Mr. Alley was living with Catherine Grans, his domestic partner and partial dependent at the time of his death. His adult and non-dependent daughter, Desiree Alley, was Mr. Alley’s legal heir at the time of his death. Both women claimed they had a right to the proceeds from the C&R.

Desiree Alley argued that Probate Code § 7001 gives the probate court jurisdiction over a decedent’s property at the time of death, and that therefore she was entitled to the proceeds.

However, the WCJ reviewed the writ denied case of CNA Ins Co v. Workers’ Comp. Appeals Bd. (Barnes) (1997) 62 Cal. Comp. Cases 1143 (writ den.), in which the WCAB held, “[T]he death of the injured worker does not deprive the WCAB of jurisdiction to approve the Compromise and Release for disbursement to the persons entitled to take same under Labor Code § 4700.”

The WCJ explained that Labor Code § 4700 provides in pertinent part as follows:

The death of an injured employee does not affect the liability of the employer…Any accrued and unpaid compensation shall be paid to the dependents, or, if there are no dependents, to the personal representative of the deceased employee or heirs or other persons entitled thereto, without administration.

Due to the above references, the WCAB affirmed the WCJ’s determination that the WCAB retained jurisdiction over the proceeds of the C&R, even though the injured worker had died before being able to negotiate the check. Since the sole dependent in this Alley case was the domestic partner of Mr. Alley, she was awarded the entire amount.

Practice Note: All of the cases listed above have been identified by the type of case that they are in bold type. It is a good idea to provide this information whenever citing a case because the type of case determines its precedential or persuasive value. A sample list of hierarchy would be:

Supreme Court En Bank

Supreme Court

District Court of Appeal

WCAB en banc decision (all of which are mandated precedent)

WCAB Significant Panel Decision (SPD)

WCAB Panel decision or WCAB Noteworthy Panel Decision (NPD)

IV. CONCLUSION

The take away is, make sure parties address any jurisdictional issue as soon as possible, if there is any question at all, to avoid any unnecessary litigation.

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