Commentary

The current trend seems to indicate that many trial Level Judges at WCAB venues are narrowly applying the Johnson case and finding jurisdiction. The cases then proceed on Reconsideration and many cases are being reversed by the WCAB finding no California subject matter jurisdiction under Johnson. When finding no jurisdiction, the WCAB seems to use an analysis as to whether the limited number of games in California caused any more injurious exposure than other games outside of California. Additionally, several of the Commissioners at the WCAB also include in their analysis reference to new Legislation and Labor Code §3600.5(b) as guidance in establishing a 20% threshold of games in California as a minimum percentage for establishing California subject matter jurisdiction. However, it does seem as if half of the commissioners make efforts to establish subject matter.

Additionally, following the Macklin decision, the next issue to be determined presumably in the Court of Appeal is what test is used to determine whether there is subject matter jurisdiction over a non-California team that plays limited games in California who is not in the last year of the cumulative trauma claim with a California team under Labor Code §5500.5.