Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

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

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!

WCAB allows applicant to testify remotely by SKYPE after being deported and unable to attend hearing

This is a writ denied case

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

The applicant suffered an industrial injury. The applicant was terminated from his employment and eventually deported. Due to the applicant being deported the applicant could not enter the United States legally.

The applicant could not attend a trial so applicant petitioned to be able to testify remotely by Skype or another method. The Workers’ Compensation Judge (WCJ) held a hearing to determine if the applicant could testify remotely. The WCJ ruled the applicant could testify remotely. The defendant filed a petition for reconsideration contending that the applicant should not be allowed to testify from Mexico by Skype due to being in the country illegally.

The WCJ indicated that just because someone resides outside the United States this does not terminate their legal rights. Once a person leaves the United States this does not terminate their rights under the California Labor Code.

The applicant was unavailable for trial as described by Evidence Code section 240. The applicant did not abandon his case. By allowing applicant to testify remotely at his own expense the WCJ indicated that both applicant and defendant were able to present evidence and cross-examine witnesses. The Workers’ Compensation Appeals Board denied reconsideration and allowed the applicant to testify remotely.

A key decision in football cases was decided by the Workers’ Compensation Appeals Board (WCAB)

The applicant was a professional football player. The applicant resided in Florida. He signed a professional football contract with New Orleans outside of the State of California. While employed with New Orleans he played 5 of his 32 games in the State of California. He also played for the Bengals and played 1 of 16 games in California. He filed a cumulative trauma case in California, after retirement.

The Workers’ Compensation Judge (WCJ) found the applicant suffered a cumulative trauma and awarded the applicant a 40 percent disability. The team appealed.

The WCAB found the applicant and the employer are exempt from California law where the applicant was hired outside the state and under the following conditions: The applicant temporarily works in California, the employer provided workers’ compensation coverage in another state (here it was Ohio), if the other state recognizes California’s extraterritorial provisions, if the other state exempts California from coverage of California’s workers’ compensation laws.

This was the case here, thus California did not have to pay benefits.

Civil case defines respondeat superior liability, the going and coming rule and its exceptions

An employee was on his way to a breakfast meeting with a former colleague. He made a left turn and hit two pedestrians, killing one and injuring the other. The plaintiff brought a law suit trying to sue the employer indicating the breakfast meeting was work related and fit an exception to the going and coming rule.

There is an excellent discussion of respondent superior liability. This dealt with whether the employer could be vicariously liable for the employee’s actions.

To analyze this the court looked at the “going and coming rule”. Employees are generally not within the scope and course of employment on the way to work.

The court then looked at the exceptions to this rule. The first exception was the “special errand rule”. This breakfast meeting was not considered a “special errand”.

The next exception was the “required vehicle exception”. This requires benefit to the employer.

The court then looked at substantial departures from the employers’ business. Here it was determined the breakfast meeting was not work related.

In an en banc decision the WCAB determined they do not have jurisdiction over an Arizona football player

This is an En Banc decision of the Workers’ Compensation Appeals Board (WCAB)

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

The applicant suffered a cumulative trauma injury during four years as a football player with the Arizona Cardinals. He played in 80 games of which 40 were in Arizona. The other 40 games were in 16 different states, whereof 7 games were in California.

The applicant filed an application for adjudication in California. His contract of employment indicated that his principal place of employment was in Arizona and that claims for workers’ compensation shall be filed in Arizona.

The Workers’ Compensation Judge (WCJ) indicated that the WCAB does not have to exercise jurisdiction over the applicant’s case and issued a “take nothing”. Applicant petitioned for reconsideration.

The WCAB determined that it has jurisdiction to decide if California is the proper forum to decide applicant’s claim. The WCAB agreed with the WCJ that California was not the proper forum. Arizona has a materially greater interest in determining workers’ compensation benefits for an Arizona resident.

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