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California: WCAB Jurisdiction Over Claim for Out-of-State Injury to Non-California Resident

August 05, 2022 (3 min read)

Here’s an interesting Board Panel Decision on California jurisdiction over a claim for an out-of-state injury to a non-California resident.


Copyright 2022 by Matthew Bender & Company, Inc.

Brian Burk, Applicant v. Sarens international, Arch Insurance administered by Charles Taylor, Inc., Defendants

W.C.A.B. No. ADJ13623575—WCJ Norma L. Acosta (SJO); WCAB Panel: Commissioner Razo, Deputy Commissioner Schmitz, Commissioner Snellings (concurring, but not signing)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed July 21, 2022

Publication Status:  CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Reconsideration is granted, and the October 11, 2021 F&O is affirmed.

WCAB Jurisdiction—Regular Work in California—WCAB, following grant of reconsideration, affirmed WCJ’s finding that California had jurisdiction over applicant rigging superintendent’s claim for 1/19/2016 industrial back injury, notwithstanding that applicant was resident of Nebraska at time of injury, made employment contract in Nebraska, and suffered injury while in Jamaica, when WCAB reasoned that under Labor Code § 3600.5(a), employee who sustains injury outside of California may still be entitled to California workers’ compensation benefits if employee was hired in California or is “regularly working” in California, that applicant credibly testified he came to California for work approximately eight times while employed by defendant, worked in state for two to four weeks each time he was here and received per diems for hotels and meals, that defendant’s main facilities were in California and defendant received benefit of applicant’s work in California as applicant came to State of California to prepare equipment for other job locations, that above evidence supported WCJ’s finding that applicant was “regularly working” in California, and that defendant failed to produce evidence to rebut applicant’s evidence as to his employment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01[2], 13.02.]

Read the panel decision below.