Minimum Or Sufficient Contacts Test Per Johnson Case

Ken Stabler v.Houston Oilers and New Orleans Saints, 2015 Cal. Wrk. Comp. PD LEXIS 424, (July 8, 2015).

WCAB found it did have subject matter jurisdiction under Labor Code Section 5300 and 5301 over applicant’s cumulative trauma from January 1, 1970 to September 17, 1984 when evidence established that 11 of the 14 year long continuous trauma injury occurred within California during applicant’s employment with Oakland Raiders. Furthermore, the WCAB held the Workers Compensation Judge did not err in imposing liability for applicant’s cumulative injury under Labor Code Section 5500.5 (a) on Travelers Insurance, which was only confirmed workers’ compensation carrier for applicant’s final employer, New Orleans Saints with right of contribution against carrier for the Houston Oilers.

 

Roger Phegley v. Dallas Mavericks,  2015 Cal. Wrk. Comp. PD LEXIS 231, (April 2, 2015).

WCAB declined to exercise subject matter jurisdiction over professional basketball player’s cumulative trauma injury while playing for various teams from January 1, 1978 to July 1, 1984 when majority of the panel found that applicant was temporarily employed in California for only 23 games during his 345 game career and as described in the Johnson case, California did not have legitimate and substantial interest in applicant’s injury or a workers’ compensation claim. Nothing in the record established that applicant’s games in California were qualitatively more traumatic than his other games and that applicant’s injurious exposure in California in itself was not sufficient to support exercise of California jurisdiction when applicant play less than 7% of his career total games in California, which is far less than the 20% threshold deemed reasonable under amendments to Labor Code Section 3600.5 (b), although not applicable here.

 

Keith Booth v. Chicago Bulls, 2014 Cal. Wrk. Comp. PD LEXIS 487, (September 10, 2014).

WCAB declined to exercise subject matter jurisdiction and reversed Workers’ Compensation Judge when WCAB found that under Federal Insurance Company v. Johnson, California must have sufficient interest in applicant’s claim to apply its workers’ compensation law. Otherwise, employer or carrier would be deprived of due process. The Johnson case requires that the nature of applicant’s contact with California be sufficient to support the state’s jurisdiction over his or her injury claim and that in this case the effects of applicant’s participation in practices on three occasions when the Chicago Bulls were in California during applicant’s two years of employment with the team did not amount to a cumulative injury in California that warranted invocation of California law. The effect of those practices was de minimis at best.

 

Peter Forsberg v. Nashville Predators, Colorado Avalanche, Philadelphia Flyers, 2015 Cal. Wrk. Comp. PD LEXIS 189, (March 25th 2015).

WCAB reversed its prior decision finding there was no jurisdiction. In a split panel opinion, the WCAB found California subject matter jurisdiction and that California had a legitimate and substantial interest in assuring employees injured while working in the state receive workers’ compensation benefits and that the connection between California and applicant’s claimed cumulative injury in California was more than de minimis as detailed in Federal Insurance Company v. Johnson. The WCAB found that the value of the workers’ compensation benefits at issue in this case was neither trifling nor insignificant and could not be declared de minimis. Applicant described numerous injuries in California to his head and multiple other body parts as described in the medical treatment records and received treatment in California. He also had evaluation for hernia, injections of pain killers to relieve groin pain, splenectomy in California. The court determined applicant played 70 games in California during his 1,000 game career. (Perhaps the difference here was the sheer number of games played in California versus the percentage. This may be what the WCAB is starting to evaluate cases by as opposed to percentage of employment in California.)

 

Scottie Pippen v. Portland Trail Blazers, Houston Rockets, Chicago Bulls, 2015 Cal. Wrk. Comp. PD LEXIS 363, (June 19, 2015).

WCAB denied applicant’s Petition for Reconsideration and in a split panel opinion upheld its prior decision in which it found that pursuant to Federal Insurance Company v. Johnson, California did not have legitimate interest in adjudicating applicant professional basketball player’s workers’ compensation claim. In this case less than 9% of applicant’s total career games were played in California over the course of his entire career. The court commented that this is far less than the 20% threshold now described in section 3600.5.

 

Adam Timmerman v. St. Louis Rams (Great Divide Insurance Company), 2015 Cal. Wrk. Comp. PD LEXIS 425, (July 14, 2015).

In a split panel opinion, the WCAB held that applicant professional football player’s participation in 14 games in California out of a total of 189 games played while employed by defendant St. Louis Rams did not constitute sufficient relationship between California and alleged injury to give California a legitimate interest in adjudicating applicant’s claim as described in Federal Insurance Company v. Johnson. In this case the court determined that in considering whether California has a legitimate connection to the injury, we are guided by the view of the legislature at the time it amended Labor Code Section 3600.5 (c) to specifically address claims by certain professional athletes. The court noted that although those amendments did not apply to the present case as the claim was filed before the date of enactment, it is reasonable to consider the 20% threshold identified by the legislature in the amendments as constituting a legitimate and substantial connection between California and the injury claim of a professional football player, like applicant.

 

John Skorupan vs. New York Giants, (August 24, 2015 – WCAB Panel Decision).

The WCAB agreed with the Trial Level Judge that concluded pursuant to the holding of the Court of Appeal in Federal Insurance Company vs. Workers’ Compensation Appeals Board (Johnson) (2013) 221 Cal App 4th 1116, that there is not sufficient connection between the claimed industrial injury and the State to provide California with a legitimate interest in applying the State’s Workers Compensation Laws against defendants as a matter of constitutional due process. For that reason, the WCAB does not have jurisdiction over the injury and claim and the determination by the Workers’ Compensation Judge is affirmed. 

The Court noted that the only connection between applicant’s claimed injury and the State of California was the fact that he was temporarily in California for five of approximately 141 games he participated during his career as a professional football player. The Court also agreed with the Workers’ Compensation Judge that it is appropriate to consider the 20% requirement the Legislature established as sufficient connection when it amended Labor Code §3600.5(b) to specifically address such claims, even though that Code Section did not apply to the case as it was filed before 9-15-13. In sum, the Court determined applicant does not claim a specific injury and the substantial portion of his injurious exposure and cumulative trauma was admittedly sustained outside California.

 

Steven Everitt vs. Worker’s Compensation Appeals Board, (WCAB Panel Decision, October 21, 2015).

Steven Everitt a professional football player alleged a cumulative trauma injury from July 19, 1993 through February 15, 2001. Additionally, applicant sustained a hamstring injury in 1995 while playing in a game in San Diego and that injury continued to worsen over the remaining six years of his career in the National Football League. Applicant never resided in California, was never hired him in the State, and was never employed by a California team. Over the course of his professional football career, he played 103 regular-season NFL games, five of which were within California.

At the Trial level, the Workers’ Compensation Judge found jurisdiction in part based on the specific injury. On Appeal, the WCAB found that California does not have a legitimate and substantial connection to the claimed cumulative injury that is sufficient to make the Application of the State’s Workers’ Compensation laws reasonable. They also found that the specific injury was not part of the cumulative trauma injury and could not be merged with it. The WCAB found applicant’s few contacts with the State were not sufficient to support the exercise of WCAB jurisdiction over defendants.

 

Keith Byers vs. Workers’ Compensation Appeals Board, 2015 Cal Work Comp Lexis 154, (November 25, 2015 – Writ of Review Denied).

The WCAB affirmed its prior decision in the same case that California had no jurisdiction over the New York Jets or applicant professional football players’ claim for industrial cumulative injury when applicant was temporarily in California for football games and connection between applicants’ claimed cumulative trauma in California was de minimus, as described in Federal Insurance Company vs. Workers’ Compensation Appeals Board (Johnson). Applicant played only 9 games in California out of approximately 250 games over his 12 year career representing less than 4% of total number of games. The WCAB also stated that although not applicable in this case, the amendment to Labor Code §3600.5(b) describes a 20% threshold as a reasonable to constitute legitimate and substantial connection between California and professional athletes’ cumulative injury, as contemplated in Johnson.

 

Carlos Delgado vs. Workers’ Compensation Appeals Board, 2015 Cal Work Comp Lexis 131, (September 28, 2015 – Writ of Review Denied).

The WCAB reversed the Workers’ Compensation Judge and determined that California did not have jurisdiction over applicant professional baseball players’ claim for cumulative injury while playing for the New York Mets, based on the holding in the Johnson case. The Court found that applicant played less than 7% of his career total games in California, and that nothing in applicant’s testimony or medical evidence suggested the games applicant played in California were qualitatively more dramatic than his other games and that exposure in itself is not sufficient to establish jurisdiction. They also found that medical treatment and rehabilitation provided to applicant in California was similar to minor first aid and did not compel WCAB to exercise jurisdiction.

 

Nashville Predators vs. Workers’ Compensation Appeals Board, 2015 Cal Work Comp Lexis 133, (September 28, 2015 Writ of Review Denied).

WCAB found jurisdiction for applicant professional hockey players claimed cumulative injury as the exposure was more than de minimus per the Johnson case. In this case, applicant played more than 70 games in California although it was only 7% of 1000 games he participated in during his professional career.