12, 27K Further statutory references are to the Labor Code. 1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA

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1 1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA EDDIE BROWN, Case No. ADJ (ANA ) 6H Applicant, OPINION AND DECISION 7 AFTER vs. RECONSIDERATION 8 9 CINCINNATI BENGALS, Self-Insured, 10!I Defendant(s). 12, 13 We previously granted defendant's petition for reconsideration of the February 26, Findings and Award of the workers' compensation administrative law judge (WCJ) who found in 15 pertinent part that Labor Code section "is not applicable" in this case, and that California 16! has jurisdiction to adjudicate applicant's claim for workers' compensation benefits. The WCJ 17 further found that applicant, who was employed by defendant to play professional football, 181 incurred injury to his head, neck, shoulders, elbows, wrists, hands, hips, back, and lower 19 extremities causing a need for future medical treatment Defendant asserts that the record establishes: 1) that applicant was only "temporarily" 2 1 within California while employed by defendant, 2) that defendant provided workers' compensation 221 coverage for him under the laws of Ohio while he was working in California, 3) that the i 23 extraterritorial provisions of California are recognized in Ohio, and 4) that California employees 24 temporarily in Ohio are exempted from the application of Ohio law if they are injured. Based on 25 these assertions, defendant contends that section (b) exempts applicant from claiming 261] California workers' compensation benefits, and that the WCAB does not have jurisdiction to 27K Further statutory references are to the Labor Code.

2 1 adjudicate his claim for benefits. 2 An Answer was received and the WCJ provided a Report and Recommendation on Petition 3 for Reconsideration. 4 As our Decision After Reconsideration we rescind the February 26, 2009 Findings and 5 Award and return the case to the trial level for development of the record and a new decision that 6 addresses, inter alia, the contentions of defendant described above and the applicability of section 7 ii (b) to applicant's claim. 8 Applicant alleges that he incurred cumulative trauma injury while employed as a 9 1 professional football player by the Cincinnati Bengals (Bengals), an Ohio employer. Defendant, J 10ý who is self-insured, asserts that applicant's claim is exempt from the California statutes, citing 11, section (b), which provides in full as follows: ýi 12 "Any employee who has been hired outside of this state and his employer iii shall be exempted from the provisions of this division 13i while such employee is temporarily within this state doing work for his employer if such employer has furnished workmen's 1 41 compensation insurance coverage under the workmen's 15 compensation insurance or similar laws of a state other than California, so as to cover such employee's employment while in 16'i this state; provided, the extraterritorial provisions of this division 1I are recognized in such other state and provided employers and 17;1 employees who are covered in this state are likewise exempted from the application of the workmen' s compensation insurance or 18 similar laws of such other state. The benefits under the Workmen's Compensation Insurance Act or similar laws of such other state, or other remedies under such act or such laws, shall be 20' the exclusive remedy against such employer for any injury, whether resulting in death or not, received by such employee while 211 working for such employer in this state. "A certificate from the duly authorized officer of the appeals board or similar department of another state certifying that the employer 23 of such other state is insured therein and has provided extraterritorial coverage insuring his employees while working 24,1 within this state shall be prima facie evidence that such employer carries such workmen's compensation insurance." (Emphasis added.) 2 6i Turning to defendant's contentions, we find that there is a need to develop the record to 2 27ii determine whether section (b) applies to exempt applicant from the coverage of California's BROWN, Eddie 2

3 1 workers' compensation laws. As can be seen, section (b) addresses the potential coverage 2 of non-resident employees hired outside the state who are "temporarily" in the state doing work for 3 a non-resident employer. Although we do not decide the issue, the current record appears to 4 1 support a finding that applicant was "temporarily within this state doing work for his employer" as 5 described in section (b). During the seven years applicant played football for the Bengals, 6 the team played approximately 150 games. However, only 7 of those games were played in 7 California. In some years applicant played no games in this state. 8 In Travelers Ins. Co. v. Workers' Comp. Appeals Bd. (Coakley) (1967) 68 Cal.2d 7 [32 9 Cal.Comp.Cases 527] (Coakley) the Supreme Court held that California's strong interest in the S1o employment status of a California resident who was injured while working in Utah on a job 11 acquired through a Colorado employment agency, required that California law be applied to 12; determine whether the employment contract was made in California within the meaning of section For that reason, California law was also found to apply to resolve subsidiary issues, 14! including the application of section (a), which describes the conditions for obtaining i 15[ workers' compensation benefits for employee's who are hired or regularly employed in the state, 16 Eas follows: 17 "If an employee who has been hired or is regularly employed in the Istate receives personal injury by accident arising out of and in the 18! course of such employment outside of this state, he, or his dependents, in the case of his death, shall be entitled to compensation according to the law of this state." 2 Under the broad standards described in Coakley California jurisdiction over claims by 211 professional athletes has been found in varying circumstances. (Bowen v. Workers' Comp. 221ý Appeals Bd. (1999) 73 Cal.App.4th 15 [64 Cal.Comp.Cases 745) [Jurisdiction found over claim of 231 a California resident who signed a contract in California to play professional baseball for a minor 24 league Florida team notwithstanding that the contract was not finalized by signature of the 25 _ 2 2 Section 5305 provides in full as follows: 'The Division of Workers' Compensation, including the administrative 2 director, and the appeals board have jurisdiction over all controversies arising out of injuries suffered outside the 27 territorial limits of this state in those cases where the injured employee is a resident of this state at the time of the injury and the contract of hire was made in this state. Any employee described by this section, or his or her dependents, shall be entitled to the compensation or death benefits provided by this division." BROWN, Eddie 3

4 1 defendant and approval of the commissioner, or the fact that applicant only played in Florida and 2 incurred his injury there]; Portland Trailblazers v. Workers' Comp. Appeals Bd. (Whatley) (2007) 3 72 Cal.Comp.Cases 154 (writ den.) [Section found to confer California jurisdiction over 4 out-of-state employer who employed applicant when he last played in California, notwithstanding 5 that it was not during the last year of the cumulative trauma period when the applicant played 6 basketball in Lithuania]; Washington Wizards v. Workers' Comp. Appeals Bd. (Roundfield) (2006) 7 71 Cal.Comp.Cases 897 (writ den.) [Subject matter jurisdiction found under sections and when part of applicant's cumulative trauma was sustained while playing basketball in 9 California]; Injured Workers' Ins. Fund of Maryland v. Workers' Comp. Appeals Bd. (Crosby) 10.1 (2001) 66 Cal.Comp.Cases 923 (writ den.) (Crosby) [Jurisdiction over non-resident professional 11t ifootball player's cumulative trauma injury claim found pursuant to section (b) where 12'J defendant presented no evidence at trial that the State of Maryland provided for reciprocity as 131 required by that section]; New York Yankees v. Workers' Comp. Appeals Bd. (Montefusco) (2001) Cal.Comp.Cases 291 (writ den.) [Jurisdiction over New York employer found for claimed 15. cumulative trauma injury pursuant to section 5305 because the employment contract was made in 161 California by a state resident]; San Francisco 49ers v. Workers' Comp. Appeals Bd. (Green) (1996) 17: 61 Cal.Comp.Cases 301 (writ den.) [California employer liable for applicant's cumulative trauma 18, injury under section notwithstanding that California had no jurisdiction over the out-of- 191 state employers who employed applicant during the last year of the cumulative trauma period when 201 he played no games in California].) 21: Other cases have addressed the question of the applicability of California's workers' 2 2 compensation law in other employment contexts involving out-of-state employers. (Clemons v. 23' Workers' Comp. Appeals Bd. (1981) 46 Cal.Comp.Cases 1261 (writ den.) [Manifestation of 24 asbestos exposure illness and disability after applicant returned to California after working for 2 51 Wisconsin employer where injurious exposure occurred was insufficient to invoke California 261 jurisdiction]; Koleasco, Inc v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1302 (writ 2 7 den.) [California jurisdiction found over claims of husband and wife long haul truck drivers for BROWN, Eddie 4

5 1 injuries incurred in a traffic collision in Illinois while returning from a run to California because 2 employees were "regularly" employed in California in light of the number of runs they made to the 3 state (80-85%), the time they were in the state (8 hours for every 2 in Michigan), their use of their 4 California residence to store property for the employer and the ongoing contacts between the 5 employer and businesses in the state]; Rocor Transp. v. Workers' Comp. Appeals Bd. (Ransom) 6 (2001) 66 Cal.Comp.Cases 1136 (writ den.) [Jurisdiction found over Oklahoma employer pursuant 7 to section 5305 (contract of hire made in California) for claimed cumulative trauma injury because 8 regular truck runs to California by applicant constituted "regular employment" under section (a) although only 9.2% of applicant's actual driving time for the employer was in the state]; 10Hi Sustarich v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 967 (writ den.) [No 11' jurisdiction over non-resident flight attendant's claim of injury resulting from attack at hotel while 12 on a layover in Germany because employment contract not made in California and monthly visits 13 to state by applicant were not sufficient to invoke jurisdiction under "regularly employed in the 14i state" provision of section (a)]; Dick Simon Trucking Company v. Workers' Comp. Appeals 151I Bd. (Patti) (1999) 64 Cal.Comp.Cases 98 (writ den.) [Combination of state residency plus regular 1 61 employment in California within the meaning of section (a) was sufficient to establish 17 jurisdiction over applicant's industrial injury in Ohio, even though contract of hire was executed in 18 Utah]; Anderson v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 425 (writ den.) [No 19 jurisdiction over driver's claim of injury incurred in Utah because employment contract not made 20 in California and worker not "regularly employed in the state" under section (a)]; John 21 Christner Trucking, Inc. v. Workers'. Comp. Appeals Bd. (Carpenter) (1997) 62 Cal.Comp.Cases 22,: 979 (writ den.) [Jurisdiction found under section (a) for applicant's cumulative trauma 2 3!, injury claim where he was hired as a long haul truck driver in Oklahoma by Oklahoma employer in 2411 that state, but maintained a California residence and 32% of total working time was in 251 California].) Applicant cites Kimble v. Workers' Comp. Appeals Bd. (Turley) (1992) 57 Cal.Comp.Cases 467 in support of his contentions. However, the Court of Appeal opinion in that case is not published, and under the Rules of Court it is not citeable for any purpose. (Cal. Rules of Court, rule (a).) Applicant is cautioned that such improper citations to the WCAB may support the imposition of sanctions. (Lab. Code, 5813; Cal. Code Regs., tit. 8, ) BROWN, Eddie 5

6 1 Although jurisdiction was found in some of the cases cited above under the circumstances 2 specific to those cases, we have found no California case where jurisdiction was found over the 3 claim of a professional athlete in a case such as this, where neither the employer nor the employee 4 are residents of California, the employment contract was not made in the state, and the only contact 5 with California is the occasional playing of football games within its geographical boundaries. 6 Moreover, the employer in this case also asserts that the coverage exception carved out by the Legislature in section (b) applies because applicant was only temporarily in the state while 8 1playing football games. In this situation, we find that the potential applicability of the exclusion 9 described in section (b) must be further addressed by development of the record. 1 0C In addition to the question of whether applicant was only "temporarily within this state 11i doing work for his employer" as described in section (b) and as discussed above, the other 121! section (b) provisions to be addressed by the parties and the WCJ upon return of the case to 13i the trial level include the requirement that the employer has furnished workers' compensation 141 insurance under "similar" laws of a different state that provides coverage for its employees when 151 they are temporarily in California. The WCJ's inquiry should also consider whether Ohio's statute 16i , which is cited by defendant, meets the section (b) provisos that the extraterritorial 17 provisions of this state be recognized by the other state and that employers and employees who are 18i! covered under the laws of California are "likewise exempted" from the application of the workers' 19 compensation laws of the other state, as it appears to do on its face The WCJ should also determine if there is a certificate from a duly authorized officer of 21FF Ohio that certifies that the defendant is insured in that state and has provided extraterritorial 22 coverage insuring its employees while working within California, such that there is "prima facie" 23 evidence that defendant carries such workers' compensation insurance as discussed in section (b). Here, the employer only offered its own testimony concerning its self-insurance status, 25 and this is not adequate proof that the requirements of section (b) have been met. 26 ii 271 /// BROWN, Eddie 6

7 1 After the parties have had a reasonable opportunity to present evidence concerning the 2 provisions of section (b) and the issues, as discussed above, the WCJ should prepare an 3 opinion that fully addresses how that evidence and those issues were considered in determining 4 whether applicant's claim for California workers' compensation benefits is excluded by section (b) III ']III 15ii 171 /1 / 19 I/I 201 II // 231 i., 24II 27j Ii BROWN, Eddie 7

8 1 For the foregoing reasons, 2 IT IS ORDERED as the Decision After Reconsideration of the Appeals Board that the i 3 February 26, 2009 Findings and Award is RESCINDED and the case is RETURNED to the trial 4 level for further proceedings and a new decision by the workers' compensation administrative law 5 judge in accordance with this decision. 6 7 WORKERS' COMPENSATION APPEALS BOARD 8 9 i I CONCUR, DEIDRA. LOWE /RONNIE G. CAXANE ý 191l 20 G,.t 21 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 22, DEC SEAL~ 231 SERVICE MADE BY MAIL ON ABOVE DATE ON THE PERSONS LISTED BELOW AT 24 THEIR ADDRESSES AS SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD: 251 Eddie Brown Namnanny, Byrne & Owens 2 Peterson & Colantoni JFS/jp BROWN, Eddie 8