ADJ11134795 — California WCAB decision

What the panel ordered

The Findings and Order of February 11, 2020 is rescinded, and the matter is returned to the trial level for further proceedings and a new decision by the WCJ consistent with the opinion.

The Appeals Board granted reconsideration and rescinded the Findings and Order of February 11, 2020, returning the matter to the trial level for further proceedings and a new decision by the WCJ.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Jurisdiction / venueRemandedcervical spine · bilateral shoulders · bilateral elbows · bilateral wrists · thoracic spine · lumbar spine · bilateral hips · bilateral knees · bilateral ankles/feet/great toes

The WCJ's prior decision was unclear and inconsistent regarding jurisdiction and liability under these Labor Code sections, particularly concerning the date of cumulative injury and the application of the 'relation back' doctrine. The Appeals Board found that the WCJ must revisit and clarify these issues with proper analysis and due process.

From the decision · page 2Applicant contends that the WCAB has jurisdiction over his claim pursuant to Labor Code sections 3600.5(a) and 5305, and that alternatively, liability for his cumulative trauma injury "rolls back" to the San Francisco Giants pursuant to Labor Code section 5500.5. The San Francisco Giants filed an answer, which has been considered. The WCJ submitted a Report and Recommendation ("Report"). Based on our review of the record and applicable law, we conclude that the WCJ's take- nothing order does not follow from the WCJ's finding that applicant's claim is not barred by Labor Code section 3600.5. Therefore, we conclude that the WCJ must revisit Labor Code sections 3600.5, 5412 and 5500.5 and provide a separate analysis of each of the three statutes. Accordingly, we will rescind the WCJ's decision and return this matter to the trial level for further proceedings and new decision by the WCJ. As noted at the outset, applicant contends that the WCAB has jurisdiction over his claim of cumulative trauma injury pursuant to Labor Code sections 3600.5(a) and 5305. In her Report, the WCJ responds to this contention by referring to pages eight and nine of her Opinion on

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant had multiple contracts and employment periods with California baseball teams during the cumulative trauma period, establishing jurisdiction under Labor Code section 3600.5(a).

Favours Applicant prevailed

This fact supports the Appeals Board's conclusion that jurisdiction exists and the WCJ must revisit the application of Labor Code section 3600.5.

From the decision · page 4In this case, applicant had more than minimal contacts with California during the period of his employment from April 1995 through April 2007. Applicant played four or five seasons for two California teams, for the San Diego Padres from 1994 through 1996 and for the San Francisco Giants from 2003 through 2004. Applicant's contract to play for the San Diego Padres was signed in California, in 1994. Applicant also signed a minor league contract with the San Francisco Giants in Fresno, in July 2003, and he signed at least one other contract with the Giants in San Francisco, in August 2003. (Summary of Evidence, 11/18/19, p. 7:11-25.) Though applicant ended his baseball career with the Cincinnati Reds in 2007, he had ample contacts with California, and he signed at least two contracts in this state, within the claimed cumulative trauma period April 1995 through April 2007. Here, as in Wilson, there is jurisdiction over applicant's claim against the California teams pursuant to section 3600.5(a). To the extent the WCJ's decision remains unclear as to whether she made a contrary finding based on subdivisions (c) and (d) of section 3600.5, we conclude the WCJ must revisit and resolve the issue based on the analysis of the statute set forth in Wilson, supra.

The WCJ's prior decision did not properly analyze the date of cumulative injury under Labor Code section 5412, which is necessary to determine employer liability under section 5500.5.

Favours neutral

This fact requires the WCJ to revisit and clarify the date of injury to correctly apply employer liability rules.

From the decision · page 5In this case, it was stipulated at trial that applicant was employed as a professional athlete from April 1, 1995 through April 1, 2007, the period of his claimed cumulative trauma injury. Although it appears there is no challenge to the WCJ's finding that applicant sustained industrial injury to various body parts from April 1, 1995 through April 1, 2007, the WCJ applied section 5500.5(a) without undertaking the required analysis of the date of cumulative trauma injury pursuant to section 5412. In order to apply section 5500.5(a) correctly, we conclude that the WCJ must revisit and determine the date of cumulative trauma injury pursuant to section 5412, in light of the following discussion.

The WCJ's take-nothing order conflicted with findings that the applicant's claim was not barred by Labor Code section 3600.5, indicating inconsistent application of the law.

Favours neutral

This inconsistency led to the Appeals Board rescinding the prior decision and remanding for further proceedings.

From the decision · page 7As discussed before, however, applicant worked in California for four or five seasons and signed contracts in this state several times. Therefore, it appears jurisdiction is established pursuant to subdivision (a) of section 3600.5, and it remains unclear why the WCJ relied upon subdivision (b). Further, the WCJ's conclusion in her Opinion on Decision that the Reds have an approved alternative to workers' compensation coverage under section 3600.5(b) apparently meaning applicant's exclusive remedy is against the Reds outside California pursuant to section 3600.5(b)(2) is inconsistent with the WCJ's actual finding that "applicant's [California] claim is not barred by Labor Code section 3600.5." In light of Wilson, supra, it is uncertain how any part of section 3600.5, except subdivision (a), is correctly applied in this case. We conclude that the WCJ must revisit the issue and make a new determination.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code section 3600.5

Jurisdiction over cumulative trauma injury claims for professional athletes with sufficient California contacts.

From the decision · page 2Applicant contends that the WCAB has jurisdiction over his claim pursuant to Labor Code sections 3600.5(a) and 5305, and that alternatively, liability for his cumulative trauma injury "rolls back" to the San Francisco Giants pursuant to Labor Code section 5500.5. The San Francisco Giants filed an answer, which has been considered. The WCJ submitted a Report and Recommendation ("Report"). Based on our review of the record and applicable law, we conclude that the WCJ's take- nothing order does not follow from the WCJ's finding that applicant's claim is not barred by Labor Code section 3600.5. Therefore, we conclude that the WCJ must revisit Labor Code sections 3600.5, 5412 and 5500.5 and provide a separate analysis of each of the three statutes. Accordingly, we will rescind the WCJ's decision and return this matter to the trial level for further proceedings and new decision by the WCJ. As noted at the outset, applicant contends that the WCAB has jurisdiction over his claim of cumulative trauma injury pursuant to Labor Code sections 3600.5(a) and 5305. In her Report, the WCJ responds to this contention by referring to pages eight and nine of her Opinion on

California Labor Code

Labor Code section 5412

Determining the date of cumulative injury for statute of limitations purposes.

From the decision · page 5In this case, it was stipulated at trial that applicant was employed as a professional athlete from April 1, 1995 through April 1, 2007, the period of his claimed cumulative trauma injury. Although it appears there is no challenge to the WCJ's finding that applicant sustained industrial injury to various body parts from April 1, 1995 through April 1, 2007, the WCJ applied section 5500.5(a) without undertaking the required analysis of the date of cumulative trauma injury pursuant to section 5412. In order to apply section 5500.5(a) correctly, we conclude that the WCJ must revisit and determine the date of cumulative trauma injury pursuant to section 5412, in light of the following discussion.

California Labor Code

Labor Code section 5500.5

Determining employer liability for cumulative injury claims within the one-year exposure period.

From the decision · page 4As relevant here, Labor Code section 5500.5(a) provides that liability for cumulative injury claims is limited to those employers who employed the employee during a period of one year immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first. Subdivision (a) further provides that if none of the employers during the one-year period of cumulative injury are insured for workers' compensation coverage, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the cumulative injury for which an employer is insured for workers' compensation coverage.

ADJ11134795 · November 20, 2023

What the panel ordered

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