California WCAB May Lack Jurisdiction Where Out-of-State Football Player Plays a Single Game in California

California WCAB May Lack Jurisdiction Where Out-of-State Football Player Plays a Single Game in California

The California Workers’ Compensation Appeals Board has recently issued two noteworthy panel decisions related to the WCAB’s subject matter jurisdiction in which the professional football player claimed cumulative trauma but played only a single football game in California.
In Vaughn Booker v. Cincinnati Bengalsthe WCAB panel, rescinding the workers’ compensation judge’s finding of compensable injury, held that the WCAB did not have subject matter jurisdiction over Booker’s claim against the Cincinnati Bengals for industrial injuries he suffered while playing professional football in California during the period 2/16/2000 to 4/1/2003.
The WCAB panel found:
(1) With respect to territorial jurisdiction (for injuries sustained in California), Calif. Labor Code § 3600.5(b) provides that the laws of a state other than California provide the exclusive remedy for an employee hired outside of California but injured while working in California if four conditions are met. According to the WCAB, in Booker’s case, there was no basis for territorial jurisdiction over the Bengals pursuant to the “temporarily” employed provisions of Labor Code § 3600.5(b) because all four conditions of Labor Code § 3600.5(b) were met, in that:
  • Booker was “temporarily” employed in California by the Bengals 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 the workers’ compensation laws of California;
  • The Bengals offered evidence that players injured while playing in California were covered by Ohio’s workers’ 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.
(2) The WCAB further found no basis for extra-territorial jurisdiction (for injuries sustained outside California) over the Bengals because Booker was not “regularly employed” in California under Calif. Labor Code § 3600.5(a) based upon the WCAB’s determinations that:
  • As a matter of law, Booker’s one day of employment in California over a three-year period could not constitute regular employment;
  • California has no significant interest in the workers’ compensation claim of an employee whose contract was not made in California, who worked in California for only one day in three years, and who otherwise had no significant connection to California; and
  • The fact that Booker paid income tax in California was not sufficient to confer jurisdiction in light of the statutory scheme for determining jurisdiction.
In Michael Jameson v. Cleveland Browns, the WCAB rescinded the WCJ’s finding that applicant, a professional football player, suffered compensable cumulative injuries in California while playing for the Cleveland Browns during the period 4/2001 to 12/31/2003, and, citing Booker v. Cincinnati Bengals, remanded the matter to the WCJ for a determination regarding whether the WCAB had subject matter jurisdiction over the applicant’s claim, when:
(1) Applicant’s employment as a professional football player in California involved a single football game out of 42 regular season games, one play-off game and numerous pre-season games during a career spanning from 2001 to 2004; and
(2) The WCJ did not address the issue of whether the defendant met “temporary employment” requirements in Calif. Labor Code § 3600.5(b) so as to exclude workers’ compensation coverage for employees temporarily employed in California, and failed to make any findings based on an analysis of relevant insurance coverage and reciprocity provisions in Ohio law, as cited by defendant.
On remand, the WCAB instructed the WCJ to permit the defendant to submit relevant evidence to establish that its self-insurance covered applicant’s out-of-state claim of injury, to review the relevant law and to make a determination as to whether the WCAB could exercise subject matter jurisdiction over the applicant’s claim.
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