Football player is denied workers’ compensation in California due to lack of jurisdiction by the state

This is a published appellate court decision

This is a very significant case for workers’ compensation principles.

The applicant was a professional football player. He played 6 years in the National Football League. He played in 110 games in his career, but only two of those games were in California.

The applicant was living in Los Angeles and his agent was located in Newport Beach when they allege they signed his contract with the Indianapolis Colts. They allege this gave the state of California jurisdiction over his claim.

The Workers’ Compensation Judge (WCJ) found at trial that the applicant sustained a 67 percent permanent disability and California had jurisdiction. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ finding that neither the applicant nor his agent were in California when the contract was accepted and signed. Therefore, California did not have jurisdiction and they reversed the award.

The appellate court reviewed numerous cases and statues. They agreed with the WCAB that there was no binding agreement in California so California had no jurisdiction. The appellate court also ruled playing two games in California was not sufficient to make an award.


Assisting a police officer in active law enforcement makes that person an employee for workers’ compensation purposes

This is a published appellate court decision

This is a very significant case for workers’ compensation principles.

This case did not come out of workers’ compensation but resulted from a summary judgment in a civil case for negligence and misrepresentation.

A deputy sheriff phoned husband and wife citizens and asked them for assistance in a 911 call that was received by the sheriff. The deputy explained he was miles away and asked them to go check on a 911 call the sheriff had received from their neighbor.

The couple (who were not employed by the sheriff) went to check on their neighbor. They stumbled in on a double murder in progress and were both attacked by a knife and suffered severe wounds.

They filed a civil suit against the county and the county filed a summary judgment claiming the couple were employees and their only recourse was workers’ compensation. The court agreed.

The court looked at Labor Code section 3366 that indicates that any person engaged in assisting a police officer is deemed an employee of the public entity.

The court defines active law enforcement under the statute and determined the couple were in active law enforcement. They indicated they were exposing themselves to risks inherent in preventing a crime by responding to a 911 call. Therefore, their only remedy was workers’ compensation.


Supreme Court unanimously ruled on independent contractor issues in a non workers’ compensation case

This is a published supreme court decision

This is a very significant case for workers’ compensation principles.

This case did not come out of workers’ compensation but dealt with wage and hours. The case of S.G. Borello & Sons Inc. v Department of Industrial Relations still applies in Workers’ Compensation.

This case dealt with delivery drivers. They had been employees and then were reclassified as independent contractors. That is how the dispute arose.

The Supreme Court in a unanimous decision gave a three part test to determine independent contractor status where a worker is considered an independent contractor:

“(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in independently established trade, occupation or business of the same nature as the work performed for the hiring entity.”

The burden of proof is on the employer to prove independent contractor status. Failure to prove any aspect means the worker is an employee.


Court of Appeal indicates that 5500.5 may not apply with a prior injurious exposure

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant was a firefighter for the City of South San Francisco from 1973 to 2001. Thereafter, he worked for the City of Pacifica from 2001 on. He was exposed to known carcinogens during each employment. The cancer manifested itself in 2005 causing disability in 2007.

The applicant filed a cumulative trauma against Pacifica the last employer. Pacifica denied liability and joined the City of South San Francisco for the prior employment. The City of South San Francisco settled with the applicant for the entire period of both employments and sought contribution from Pacifica.

The case went to an arbitrator for contribution. The arbitrator ruled that section 3212.1 and 5500.5 governed. The arbitrator indicated you also look at section 5412 for date of injury.

In this case the arbitrator found there was a latency period that made harmful exposure in 1996 or 1997. This was during the first employers coverage. Based on this the arbitrator found liability on the first employer and not during the last year of employment under 5500.5.

The city of South San Francisco petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the arbitrator. It was then appealed to the appellate level.

The appellate court reviewed 3212.1 and 5500.5 and they indicated the arbitrator ruling was correct based on the latency period.


Court of Appeal indicates that temporary disability may not be paid more than five years after date of injury

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant suffered an injury to his right shoulder on July 31, 2010. He received a 12 percent permanent disability in 2011. He filed a petition to reopen in 2015.

On September 15, 2015 he applied for section 4850 benefits and temporary disability. This was more than 5 years from the date of injury. The employer contended he was not entitled to benefits under labor code section 4656, subdivision (c)(2).

The matter went to trial and a workers’ compensation judge (WCJ) ruled the applicant was entitled to befits beyond five years. The employer filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a split decision ruled the applicant was entitled to benefits beyond five years.

The appellate court reviewed section 4656. They also reviewed Radesky v. City of Los Angeles. They then reviewed Sarabi v. WCAB. Finally, they reviewed Nickelsberg v WCAB. They also reviewed the liberal construction doctrine of Labor Code section 3202.

The court of appeal indicated that section 4656, subdivision (c) (2) clearly and unambiguously provides that temporary disability shall not exceed 104 weeks form the date of injury. The relevant statutory language provides all temporary disability payments must be made within 5 years from the date of injury.


Court of Appeal review sudden and extraordinary employment condition for psychiatric case

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant had a work related back injury that resulted in two surgeries. He also claimed a psychiatric injury. The applicant worked at the employer less than 6 months.

The injury occurred when a compactor he was using struck a rock. It caused the applicant who was on a slope to fall backwards. The compactor fell on top of him.

The applicant contended the psychiatric injury was a sudden and extraordinary event because he had not worked there for 6 months. At trial, The Workers’ Compensation Judge (WCJ) found the psychiatric claim compensable because this type of injury could not have been anticipated and was not foreseeable.

On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ decision based on credibility.

The appellate court reviewed section 3208.3 (d). They then reviewed cases on sudden and extraordinary events. They reviewed Matea v.WCAB, SCIF v WCAB (Garcia) and Travelers v WCAB (Dreher).

Here they indicated the applicant did not meet the burden of proof that a sudden and extraordinary employment condition caused his injury. The applicant did not introduce any evidence of this. The applicant failed to introduce evidence that this was an uncommon, unusual or unexpected event. HB


The Workers’ Compensation Appeals Board (WCAB) does not have to reveal the name of the Independent Medical Reviewer

This is an appellate decision

This is a very significant case for workers’ compensation principles.

The applicant had a work related injury that resulted in several surgical procedures. The applicant saw a pain-management specialist who prescribed a pharmaceutical regimen. Five of the prescriptions were approved and four were denied.

The applicant appealed the decision through the Independent Medical Review (IMR) process. IMR organization approved one of the four prescriptions and rejected the other three.

The applicant appealed and a Workers” Compensation Judge (WCJ) reversed the IMR decision and sent it back to the organization for review by a different reviewer.

While it was up for second review the applicant asked the Board to reveal the identity of the first and second reviewer. Before the hearing, the second reviewer issued an opinion.

A hearing was held to reveal the names of the reviewers. The WCJ denied the request to reveal the names based on section 4610.6, subdivision (f). On petition for reconsideration the WCAB agreed with the WCJ and denied the request to reveal the names of the reviewers.

The appellate court reviewed the confidentiality provision of section 4610.6, subdivision (f). The confidentiality section ensures that reviewers are independent and unbiased. This section prevents the Board from revealing the names and does not violate due process.


Aggravation of industrial injury versus exacerbation of industrial injury defined by WCAB

This is a Writ Denied case

This is a very significant case for workers’ compensation principles.

The applicant injured his low back while doing training. The applicant was evaluated by an Agreed Medical Examiner (AME). The AME determined that the injury was an exacerbation of a prior non-industrial back injury.

The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant suffered a temporary exacerbation of a chronic, preexisting low back injury. Defendant petitioned for reconsideration claiming an exacerbation is not an industrial injury.

The Workers’ Compensation Appeals Board (WCAB) indicated that the applicant sustained an “aggravation” of his prior injury rather than an “exacerbation”.

The WCAB explained the difference between an “exacerbation” and an “aggravation”. The acceleration, or “lighting up” or “aggravation” is regarded as an injury for workers’ compensation purposes. (Tanenbaum v. IAC) An aggravation of a pre-existing condition is an industrial injury.

An exacerbation is not an industrial injury. The AME using the term exacerbation in this case, was using an incorrect theory regarding the legal basis for what is an injury. His opinion was not substantial evidence.

The applicant in this case suffered an aggravation which was compensable.


Court of Appeal rules on fraud conviction and still allows employee to collect benefits

This is a Certified case of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant injured his hand at work. The injury was admitted. The applicant was evaluated by a physician who indicated the applicant would not allow the doctor to perform grip or pinch strength tests on his hand.

The applicant had a psychiatric component and was on opiates. The applicant indicated that he could not use the hand.

The carrier obtained video surveillance. The surveillance saw him removing his sling after doctor visits and using the injured hand. He lifted a washing machine into the back of his car.

The physician reviewed the video and still awarded a whole person impairment.

The applicant was prosecuted for workers’ compensation fraud and was convicted and paid restitution.

The Workers’ Compensation Judge (WCJ) gave the applicant a 70 per cent award in spite of the fraud. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The court of appeal reviewed the fraud statutes 1871.4 and 1871.5. They also reviewed the Tensfeldt case. Entitlement to receive benefits after a conviction will require an industrial injury, medical evidence supporting an award not stemming from the fraud, and the claimant’s credibility is not destroyed. That was the case here so the award stood.


Court of appeal rules on the Statute of Limitations joining party 6 years after the injury

This is a Writ Denied case

This is a very significant case for workers’ compensation principles.

The applicant became permanently and totally disabled while working for a licensed contractor on an apartment complex. The contractors workers’ compensation insurance had lapsed so he was uninsured on the date of the accident. The contractor later filed for bankruptcy.

The Uninsured Employers Benefits Trust Fund (UEBTF) was joined as defendant for the uninsured contractor.

Six years later the Workers’ Compensation Judge (WCJ) joined the property owner. The property owner raised the issue of statute of limitations and laches. The WCJ found the property owner to be the employer because the contractor was unlicensed and uninsured. The WCJ rejected the statute of limitations defense.

The Workers’ Compensation Appeals Board (WCAB) found that the statute of limitations had been tolled because the property owner failed to give the applicant notice of his rights to workers’ compensation.

The court of appeal reviewed the Business and Professional Code and the Labor Code. They reviewed case law and determined the statute of limitations was not tolled. After the applicant filed his claim there was no need for a claim form or notice of potential eligibility for benefits. The property owner had no legal duty to inform the applicant he was the employer for workers’ compensation benefits.


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