Wesley Carroll, an ex-professional football player, sustained cumulative industrial injury to numerous body parts causing 46% permanent disability while playing for the New Orleans Saints from July 14, 1991 to August 30, 1993 and for the and Cincinnati Bengals from September 1, 1993 to April 12, 1994. Carroll played five of thirty-two games in California while employed for the Saints and played one of sixteen games in California while employed for the Bengals. Having never been a resident nor hired in California, Carroll, nevertheless, pursued a claim for workers' compensation benefits in California. In their attempt to be exempt from California's workers' compensation laws, the Cincinnati Bengals asserted a Lab. Code §3600.5(b) defense.
According to §3600.5(b), an employee and their employer are exempted "from the provisions of the California workers' compensation law when the employee was hired outside of California and all of the following apply:
(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 employee's employment while in California,
(3) The other state recognizes California's extraterritorial provisions,
(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 WCJ rejected the Bengals §3600.5 defense by determining that all of the criteria were met except that Carroll was not temporarily employed within California. The WCAB, however, rescinded the WCJ's finding and determined that playing in a single game in California did constitute temporary employment and the Bengals therefore, were exempt from having to provide Carroll with California workers compensation benefits.
According to Commissioner Sweeney, the ambiguous language of §3600.5(b) should not be construed in a way that eliminates or reduces workers' compensation benefits for employees injured in California during the course of regular employment. As the one game in California was a scheduled event and an injury was reasonably foreseeable, Sweeney viewed Carroll's participation in the game as an event in the regular course of employment.
Generally, an employee hired out of state but injured in California can receive workers' compensation benefits of California. However, this case emphasizes an exception in §3600.5(b) to the general rule, provided all the criteria are met. Although this case involves a professional sports team, the same exception may apply to all businesses that have traveling non-athlete employees.
In the scope of professional sports, this case will enable non-California teams to avoid having to provide California workers compensation benefits to players for injuries sustained during their limited employment in California.
However, the question of what constitutes temporary employment rather than regular employment remains unclear and one that is highly dependent on the facts of each case. In the present case, the Cincinnati Bengals were scheduled to play one game in California in 1993. However, it was not until three years later in 1996 that the Bengals were scheduled to play again in California. Does this sporadic scheduling suggest Bengals players are regularly employed in California as the WCJ and the dissent have suggested? Perhaps the WCAB would have come to a different conclusion had the Bengals been scheduled to play in California every year similar to all AFC West and NFC West NFL teams.
Furthermore, this case accentuates a defense that is only available to those employers located in states that have reciprocal provisions with California. Ohio, as indicated by this case, is one of a few states that have these provisions. Therefore, teams such as the Cincinnati Reds, Cleveland Browns, Cleveland Cavaliers and Cleveland Indians along with employers located in Ohio that have traveling non-athlete employees are entitled to assert a §3600.5(b) defense. While teams and other employers located in a state without such provisions, such as Louisiana, however, may not assert the exemption. This disparity may ultimately encourage employers located in states without provisions to push their respective state's legislature to enact laws that would satisfy the reciprocity criteria set forth in §3600.5(b). However, it seems unlikely that these states will comply anytime soon, if at all.
The outcome of this case also presents public policy concerns. The WCAB, in quoting their opinion in McKinley v. Arizona Cardinals 78 Cal. Comp. Cases 23, 31-32 (2013), stated that "the Legislature has established the basis for the WCAB's jurisdiction, and it has not seen fit to include payment of California income taxes as a ground for jurisdiction." However, NFL players, similar to most professional athletes, are double-taxed. They not only pay taxes in their team's state, but also in every other state in which they play games. Therefore, it seems unreasonable that by providing California with economic benefits by paying income taxes on the one game in which he played, Carroll would be denied workers' compensation benefits of California.
Furthermore, this case also highlights a potential problem in regard to reimbursement between employers in cumulative trauma claims. Although liability in cumulative trauma cases is joint and several, commonly the last employer over which California has jurisdiction is expected to act as the banker and provide benefits subject to the right of contribution and reimbursement. As Louisiana cannot assert a §3600.5(b) defense, the New Orleans Saints, for which Carroll played prior to the Bengals, could be responsible for California workers compensation benefits without any right of contribution from the Bengals.