GEORGE THE BARTENDER’S DISPATCHES FROM OFFLINE HAPPY HOUR – DETERMINING THE WORKERS’ COMPENSATION APPEALS BOARD JURISDICTION OR WHERE CALIFORNIA’S CONTROLLED AIRSPACE BEGINS AND ENDS
Holly Hustler, noted applicant attorney, asked me out to the local beach bar to partake in a libation or two to celebrate something. The “something” was left out of Holly’s invite, but I figured what could be better than a beachfront happy hour at sunset after over a year of quarantining and countless hours spent on Zoom?
The sun was setting as we took our spots in the outdoor section. After catching up on current life events, and while enjoying the cool afternoon breeze, I asked Holly to tell me the big news and give me all the details on what exactly we were celebrating.
Much to my surprise, this was a preemptive celebration. As Holly put it, “I can’t lose! I landed a new client – a flight attendant. This poor lady was working in the Denver airport and was hit with a luggage cart. I’m going to make sure that airline pays my client every month for the rest of her life.”
Not one to put the cart before the horse, I asked Holly why she was so confident that this was such a slam dunk case. Ever the raconteur, Holly began regaling me with the facts of the case.
Holly’s client, Shawna Flysalot, is a long-term flight attendant who was injured at the Denver airport when a luggage cart bumped into her, knocking her to the ground. She sustained fairly extensive injuries to her hips and arms from the fall. Perplexed by her confidence, I asked why Holly thought this out-of-state injury was certain to have California jurisdiction.
“What kind of question is that?” Holly asked rhetorically. “Shawna lives in California. You know the board will exercise jurisdiction over a resident of its own state. Don’t be ridiculous.”
At this point, even if it was going to crush Holly’s dreams, I felt it was my duty to remind her that jurisdiction is addressed in two sections of the California Labor Code. The Workers’ Compensation Appeals Board (WCAB) is vested with subject matter jurisdiction over claims of injury based on Labor Code §3600.5, and §5305, which state:
Labor Code §3600.5(a) – If an employee who has been hired or is regularly working in the state receives personal injury by accident arising out of and in the course of employment outside of the state, he or she, or his or her dependents, in the case of his or her death, shall be entitled to compensation according to the law of this state.
Labor Code §5305 – The Division of Workers’ Compensation, including the administrative director, and the appeals board have jurisdiction over all controversies arising out of injuries suffered outside the 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.
I added that pursuant to these Labor Code sections, in order for California to have jurisdiction over an injury occurring outside of the territorial limits of the state, the applicant must both be a resident of the state of California at the time of injury and have been hired in the state of California, or the applicant must regularly work in the state of California, as was spelled out in the Johnson v. Workers’ Compensation Appeals Board of the State of California and University of Washington, 53 Cal. Comp. Cases 495, 1988 Cal. Wrk. Comp. LEXIS 2631 (Cal. App. 4th Dist. 1988).1
Holly, still believing that I was arguing a moot point, exclaimed, “Exactly! Under Labor Code §5305, my client has a house in California, making her a resident of California and was injured outside of California. Boom! Jurisdiction established. Now, enjoy your drink.”
“Wait a minute,” I said after taking a sip of my Château Montelena chardonnay2, “You said she was working in Denver. If she was based in Denver as a flight attendant, I think you are going to have to prove a lot more to win this case.”
Starting to look slightly less confident, Holly asked, “What are you getting at? What could be more important to prove?”
“Well, §3600.5(a) requires that your client be regularly working in California. You’ve said that she was based in Denver. Additionally, you’ve got to address where the employment contract was established.”
Little did Holly know that I had tried a few jurisdictional cases in the past and had to contend with both of these provisions. I told her I was confident in my position that she was going to have an uphill battle on her hands because of the panel decision I had recently read filed in 2014, Kerry Kirchenberg-Fernandez v ExpressJet Airlines, ACE American Insurance, Administered by Sedgwick Claims Management (ADJ8434152) (2014 Cal. Wrk. Comp. P.D. Lexis 25), where the WCAB found that California did not have jurisdiction over an injury3.
I illuminated for Holly that in Kirchenberg-Fernandez the applicant was an on-call flight attendant, residing in California, who sustained injuries as a result of a trip and fall accident while in a terminal at the Houston Intercontinental Airport. The applicant contended that the WCAB had jurisdiction over their claim and the matter proceeded to trial.
Testimony was taken from the applicant and applicant’s witnesses. The applicant testified at trial that they were first employed by ExpressJet Airlines in 2006 as a resident of Houston, Texas. The applicant resided in Texas until 2009, when they relocated to California. They were working as a commuter employee at the time they were injured in Houston. The Workers’ Compensation Judge (WCJ) issued a Findings & Order finding that the WCAB lacked jurisdiction over the applicant’s claim of injury to their left forearm, left wrist, and right knee.
The applicant filed a petition for reconsideration, contending the WCAB has jurisdiction for their claim under Labor Code §3600.5(a). The applicant argued they performed actual employment activities in California for ExpressJet Airlines because they were on call for specific 24-hour periods and were supposed to book their flight to get to work on Continental Airlines, who was the commuter carrier for ExpressJet Airlines employees.
The applicant’s testimony at trial showed that ExpressJet provided their commuter employees with benefits that allowed them to live anywhere they chose. On-call flight attendants would then arrive in Houston to start their shift as a flight attendant.
The WCAB found there was insufficient evidence to show the applicant was regularly employed within California. The court primarily focused on the fact that the applicant did not work on any flights for ExpressJet Airlines that flew into or out of California, nor were they persuaded that the applicant’s on-call time constituted employment activities. Therefore, the WCAB opined California did not have jurisdiction over the applicant’s claim pursuant to Labor Code §3600.5(a).
Holly’s swagger had completely deflated at this point. I continued elucidating her, noting that what is not explored in Kirchenberg-Fernandez (but quite frankly is more important and more heavily litigated so is thus worth discussing with you, loyal Lobby Bar/Home Bar patrons) is establishment of jurisdiction under Labor Code §5305 based on the location of the formation of the employment relationship.
Another recent panel decision filed in 2020, Veronica Harrison v. Southwest Airlines, ACE Insurance administered by Sedgwick Claims Management Services, Inc. (ADJ8627678, ADJ9943128, ADJ10043893, ADJ10043895, ADJ10043897, ADJ10044825) 2020 Cal. Wrk. Comp. P.D. LEXIS 153, found that the WCAB had jurisdiction over injuries an applicant sustained while working in Nevada and Missouri when the applicant was hired by Southwest Airlines in California4.
In Harrison, at trial the WCJ had found that the applicant’s transfers to Missouri and Nevada had constituted new, out-of-state hires that broke the jurisdictional link between the applicant’s original California hire and their later out-of-state injuries. The applicant filed a petition for reconsideration. On reconsideration the WCAB disagreed and opined that the applicant’s initial hire in California was itself a sufficient connection to California for the applicant’s out-of-state injuries to have occurred under California contract, thus meeting the jurisdictional requirements under Labor Code §3600.5(a) and §5305.
I clarified for Holly that while she could establish that her client was a resident at the time of the injury, she certainly could not meet all requirements of Labor Code §3600.5(a) or §5305. My extensive and incisive analysis complete, Holly, looked disheartened and apprehensive, and let out the simple phrase, “Well, damn.”
Holly admitted that her client applied for her job as a flight attendant when she was a resident of Washington. She was initially offered her position while she was both physically present in, and a resident of, Washington state. She chose to be based in Denver and was responsible for getting to her assigned base by the start of her shift. Holly had no evidence to show that Shawna was living in California at the time she was hired, since she moved to California mere weeks before her injury.
The sun finished setting and I was ready to go home, however considering Holly’s current mood and not wanting to rub salt in the wound, I said, “The next round is on me.”
All characters at my beachside bar happy hour are fictional and the storyline is simply a product of my active imagination.
Understanding the nuances of Labor Code §3600.5 and §5305 takes a capable defense attorney, as you’re attempting to determine if an injured employee regularly worked in California, and where the employment contract was established.
Kirchenberg-Fernandez and Harrison lack the designation “significant panel decision,” however, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We continue to journey out into the world outside our homes when we can, where sparkling glasses of wine can now be poured by the professionals. Cheers friends, and keep washing your hands.
1 A copy of Johnson can be obtained via email request.
2 Founded in 1882 in Napa California, Château Montelena and their chardonnay famously beat out nine other wines from France and California in a blind taste test in the distinguished “Judgement of Paris” competition held in 1973. The “Judgment of Paris” competition received a terrific dramatization in a 2008 film titled Bottle Shock with GTB favorites Chris Pine and Alan Rickman. Much like the chardonnay, an underrated film, more deserving than its 48% approval rating on Rotten Tomatoes would indicate, but I digress.
3 A copy of Kirchenberg-Fernandez can be obtained via email request.
4 A copy of Harrison can be obtained via email request.