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Injuries outside of CA (California) (California)

PostPosted: Thu Aug 27, 2009 4:59 am
by wcadjuster@gmail.com
Hypothetical question regarding out of state injuries.
Employee is hired in CA, resides in CA, etc. No question that CA law would apply, however if employee is injured in another state and if for some odd reason the employee wants to file under that states' WC benefit [Ex: Texas, or New York, etc.]. Can they do so? If so, how would the insured/employer pay for that claim if they do not have coverage under that state? Any LC, or case law? Familiar with LC §3600.5 & 5305 and Janzen v WCAB, Bowen v WCAB...Any input would be appreciated.

Re: Injuries outside of CA (California) (California)

PostPosted: Thu Aug 27, 2009 5:58 am
by stevepsca
Sorry I can't go further than you already have in LC..

But, question.. how would the other state have any jurisdiction over the claim.. IW is not resident of that state, ER is not doing business there, IC is not providing coverage there, so DOI has no input/jurisdiction over carrier.
None of the parties is subject to the law of TX, NY etc. (?) IW is Calif resident... returns to Calif post initial treatment, and Calif providers are not subject to out of state laws...
DWC-1 goes to ER, goes to IC...out of state WC board/commission (probably) has no grounds to accpet application for adjudication of the claim.
IMHO... your LC provides the answer. Didn't mean to rattle here... I get this question all the time from IW on another board...so I'd like to see the answer too.

Now... was there a 3rd party here ? MVA/PI...because those states (laws) would have jurisdiction over the 3rd party action.

Re: Injuries outside of CA (California) (California)

PostPosted: Thu Aug 27, 2009 6:31 am
by jpod
I think Stew will have a better answer, but I believe a good answer is: it depends.

My recollection is that if the other state allows it's employees to elect, and submit to, another state's jurisdiction over the injury (assuming the injury occured in the other state etc) then California law allows the same. But it has been over 20 years since I dealt with this issue. This is rather common in the midwest since states are smaller and crossing statelines during the workday is a common occurance - think Missouri, Illinois, Michigan - there are lots of businesses that conduct buisness in this tri-state area. I am sure it is also common on the eastern seaboard. Tahoe is a good example locally, but California WC is more worker friendly than Nevada's. But I do not know if Nevada and California have reciprocity which I believe is the term used to describe this issue.

A California worker's comp policy states it will pay benefits according to statute and case law, hence the policy covers the employee in the event they can reach, and meet, the hurdles required to select the other jurisdiction in their particular circumstance.

Re: Injuries outside of CA (California) (California)

PostPosted: Thu Aug 27, 2009 11:30 am
by stewshe
wcadjuster,

jpod is right....it depends...on lots of things. Just to list a few, the California w/c policy may have an "all states" endorsement. That was not really your question, since you asked how would the ER pay if they DIDN'T have coverage in a particular state? I haven't looked at a comp insurance policy in over 30 years. There may even be an "all states" endorsement requirement now, e.g., business trips, etc.

If the ER was truly uninsured in a particular state and the EE had a valid election option, I suppose the EE could proceed under the Uninsured Employer's Fund equilivalent in whatever state s/he was injured in and/or the ER could write a check or reach into their back pocket....? I believe all states have a "UEF" of some sort.

I have worked on several claims where the EE was a Calif. resident, at home, when called by an out-of-state ER and approached about a job. In many of these cases the EE ends up with an election. I recall one claim in particular in Washington state had substantially better w/c benefits.

Lots of factors enter into an election decision, such as the part of the body injured in addition to TD rates/regs and PD calculations.

If anyone can clarify the "all states" endorsement issue or verify my belief all states have a "UEF" I would appreciate it. I'd try to Google it myself, but I had surgery on my left foot this morning and the meds are beginning to wear off....

Re: Injuries outside of CA (California) (California)

PostPosted: Fri Aug 28, 2009 2:36 pm
by jpod
Hi Stew:

I have an old standard form policy that came with the materials I got when I went to GAB's training school in Auroa Colorado many years ago. Admittedly it is an old standard form policy so the standard policy may have been changed since way back when/then.

But I thought since Coverage A (the WC portion of the policy) states the insurance company will pay benefits according to CA. law; and since CA. law provides for election under certain circumstances, that the CA. policy would extend to situations where election was made under CA. law. So doesn't the policy actually cover elections when the particular circumstances allow the employee to make an election.

Am I not thinking clearly? Or is a rider necessary?

Re: Injuries outside of CA (California) (California) (California

PostPosted: Sun Aug 30, 2009 10:35 am
by stewshe
jpod,

You mentioned "Coverage A." That is basically what everyone means when they say "W/C Coverage." (Other coverages under w/c include "Coverage B," for liability arising out of workers' comp, which is very rare, and "Coverage C" for volunteers, e.g., candy stripers in a hospital, or possibly church volunteers. They get to elect either tort liability vs the "employer" or w/c.)

I haven't read a CA w/c "policy" in over 30 years. As I recall it is the longest policy in the world, since it incorporates into itself all of the workers' compensation laws in the Labor Code, etc.! I do recall a whole bunch of possible endorsements, including an "all states," endorsement. I do not know if it has become automatically included in the basic package, or if it has to be added by specific endorsement. I believe it had to be added 30 years or so ago.

The possibility of an "election" I do not believe comes under CA law, but rather an "employee" may be entitled to pursue a claim under CA law and also under the law of another state. (I recall a claim where an EE had a choice of w/c in three states, including CA!)

The question you are asking is whether a CA ER would automatically have coverage if the EE pursued a claim under the w/c laws of another state? That, I don't know, other than to say if the ER asked the insurance agent/broker for "full coverage" and did not sign something agreeing to EXCLUDE coverage under w/c laws in another state, then the broker's E&O policy would provide the coverage!

Re: Injuries outside of CA (California) (California)

PostPosted: Tue Sep 01, 2009 7:21 am
by jpod
Hi Stew:

The standard form policy I have is a sample copy. Coverage A is actually less than one page. It merely states that the insurer will pay beenfits according to California Law or some such verbiage. But perhaps that is b/c it is just a sample copy and not an actual policy.

I seem to recall one of the requirements for election is that it has to be reciprocal, meaning the other state must allow their home based employees to elect in California in order for a California home based employee to elect in that other state.

Does that ring a bell with your recollection?

Re: Injuries outside of CA (California) (California)

PostPosted: Tue Sep 01, 2009 6:03 pm
by stewshe
jpod,

The following is from Lexis after a serach of "reciprocity" yielding 8 cases going back to 1935. The case below is from "Injured workers' Insurance fund of the State of Maryland vs WCAB (Crosby) 66 CCC 923" holding a lack of reciprocity allows suit:

<<
Applicant was never a resident of California, and none of his professional football player employment contracts was negotiated or signed in California.

The matter proceeded to a bifurcated trial on the issue of jurisdiction. After trial, the WCJ issued a finding that the California WCAB had jurisdiction over the Buffalo Bills, the Baltimore Colts, and the Green Bay Packers to decide Applicant's claim of CT, because Applicant played one game in California. The WCJ relied on Labor Code § 5301 and 3600.5(b) and noted that [**3] California may assume jurisdiction over claims of injury to employees who are temporarily in California, if not otherwise precluded from doing so by the provision of extra-territorial compensation coverage and a reciprocity statute with the state of employment. The WCJ found that the employers here failed to prove reciprocity or the existence of extra-territorial compensation coverage or prior settlements of the injuries claimed by Applicant. {bold supplied for emphasis}

All parties filed Petitions for Reconsideration of the WCJ's decision. The Buffalo Bills contended that California had no jurisdiction over Applicant's employment because his employment for the Bills did not occur in California, Applicant was never a resident of California, and Applicant's contract for hire by the Bills was not negotiated or executed in California. The Green Bay Packers made the same assertions in its Petition.

Although Defendant, as the carrier for the Baltimore Colts, conceded that Applicant did play one football game in California while employed by the Colts,.....(4) the NFL players contract signed by Applicant states in paragraph 23 that the State of Maryland and its laws govern the terms of the agreement; and (5) Applicant allegedly pursued and was denied compensation benefits in Maryland.

Applicant responded, asserting that.... (4) Maryland did not afford workers' compensation coverage for professional athletes injured within the course and scope of their employment.

In his report on reconsideration, the WCJ indicated that he had no reason to believe Applicant's one game in California, during which he was injured, [**5] constituted minimal exposure to the possibility of a specific or CT injury. Applicant [*925] believed that the injury to his neck sustained in that game was both a specific injury and part of his CT injury.

Citing Labor Code § 5300 and 5301, the WCJ stated that if Applicant could sustain his burden to establish that he was, in fact, injured in California, California had jurisdiction over the claim. According to the WCJ, Defendant failed to prove reciprocity or the existence of extra-territorial compensation or prior settlements of the claims now pending. It provided evidence that in Maryland the injuries claimed by Applicant would not be considered compensable. However, the WCJ pointed out, California specifically covers the type of injuries Applicant claimed occurred in California and, thus, can impose jurisdiction. ....

The WCJ also opined that, since Maryland chose not to comply with [**6] Labor Code § 3600.5(b), Applicant was entitled to pursue his claim for benefits in California.
....

The WCAB granted reconsideration as recommended by the WCJ, finding .... because Applicant played a game in California while employed by the Baltimore Colts, California had jurisdiction over the Colts for Applicant's CT injury.

Defendant filed a Petition for Writ of Review, ....

The WCAB responded with a letter to the court, contending in pertinent part that the WCAB properly found that it had jurisdiction over Applicant's claim under [*926] Labor Code § 3600.5(b), when Defendant offered no evidence concerning the existence of extra-territorial provisions in Maryland or of that state's reciprocity with California. .... the only issue determined by the WCJ was jurisdiction.

WRIT DENIED June 14, 2001.
>>

Thanks for your help in finding the cite! It clarifies something I'd heard of before, but didn't really understand before...I just hope I do now!

Re: Injuries outside of CA (California) (California)

PostPosted: Thu Sep 03, 2009 3:47 pm
by vampireinthenight
Short answer here is that the IW can elect. They can even re-elect if they want after they change their mind. If they are injured in another state there is jurisdiction in the other state on that basis. Even though the IW may switch systems, teh defendant is entitled to full credit for benefits paid under the other, so there is no double dipping.

There might be a small battle b/t the ER and the IC as to whether there is coverage. I suspect the IC will go to great lengths to provide a defense for the ER to avoid bad faith allegations. In any event, if the IW files under the other system, you pay under that system. You might consider hiring a local TPA who knows the local laws.

If the ER is uninsured, break out the checkbook, get it settled just as quick as you can, and for Pete's sake don't send your workers across borders without coverage!