Labor Code Section 3600.5(b) – Employees Temporarily in State Working

An employee who has been hired outside of this state and his or her employer shall be exempt from the provisions of this division while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of the state other than California, so as to cover the employee’s work while in this state if both of the following apply:

  • The Extraterritorial provisions of this division are recognized in the other state
  • The employers and employees who are covered in the state are likewise exempt from the application of the workers’ compensation insurance or similar laws of the other state.

In any case in which Paragraph 1 above is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury whether resulting in death or not, received by the employee while working for the employer in this state.

It should be noted that the wording in Labor Code Section 3600.5(b) was changed in 2014.  The cases below reflect the prior language.

 

Carol vs. Cincinnati Bengals, 78 Cal. Comp. Cases 655; 2013 Cal. Wrk. Comp. Lexis 102 (2013 En Banc WCAB decision)

The Appeals Board En Banc, rescinding the Workers’ Compensation Judge’s order and dismissing the defendant as a party, held that the employee and the employer are exempted by Labor Code Section 3600.5(b) from the California workers’ compensation laws, when the employee was hired outside of California and:

  1. The employee is temporarily within California doing work for the employer
  2. The employer furnished coverage under the workers’ compensation or similar laws of another state that covers the employees employment while in California
  3. The other state recognizes California’s extraterritorial provisions and
  4. The other state likewise exempts California employers and employees covered by California’s workers’ compensation laws from the application of its workers’ compensation or similar laws.

The applicant was a former professional football player and was hired outside California.  The employee and the employer were temporarily in California for one game.  The employer furnished workers’ compensation under Ohio law that covered the employee’s employment while in California.  Ohio recognized the extraterritorial provisions of other states, including California, and Ohio likewise exempts California employers and employees covered by California workers’ compensation laws from application of its workers’ compensation laws.

 

Foster vs. Toronto Raptors (2013), Cal. Wrk. Comp. P.D. Lexis 253 (2013 WCAB panel decision)

The WCAB held that the WCAB had jurisdiction over professional basketball player’s claim against various defendants and that it did not matter whether applicant was “regularly employed” in California as described in Labor Code Section 3600.5(a) because jurisdiction was found based upon work related injuries that applicant sustained while temporarily in California playing basketball.  The WCAB further found it was irrelevant if applicant was “temporarily” in California within the meaning of Labor Code Section 3600.5(b) while he was playing basketball because defendant did not prove all elements necessary to obtain exemption provided in Labor Code Section 3600.5(b).  Lastly, the WCAB did not endorse the Workers’ Compensation Judge’s view that applicant’s payment of California income tax on California earnings provided a basis for jurisdiction.

 

Booker vs. Cincinnati Bengals (2012), Cal. Wrk. Comp. P.D. Lexis 113 (2012 panel decision)

The WCAB held that they did not have subject matter jurisdiction over applicant’s claim against Cincinnati Bengals for industrial injuries suffered by applicant while playing professional football in California for the period specified when WCAB found no basis for territorial jurisdiction over Bengals’ pursuant to “temporarily” employed provisions of Labor Code Section 3600.5(b) because all four conditions of that labor code section were met as applicant was temporarily employed 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 workers’ compensation laws of California, the Bengals offered evidence that players injured while playing in California were covered by Ohio’s worker’s 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 laws. The WCAB further found it would not exercise jurisdiction based on the parties’ forum selection clause.

 

WCAB also found that Labor Code Section 3600.5(b) does not require production of a “certificate” showing that the out-of-state employer’s workers’ compensation insurance provides extraterritorial coverage, Labor Code Section 3600.5(b) only requires that the out-of-state employer have valid extraterritorial insurance coverage under the other states’ laws.  The WCAB further found it would not exercise jurisdiction based on the parties’ forum selection clause.