WCAB Rules NFL Player Was a Temporary Employee in California, Exempt from Work Comp Laws

Publish Date:Jun 24, 2013
Summary:
In an en banc decision issued on June 18, 2013, the Workers’ Compensation Appeals Board (WCAB) ruled that a football player employed by the Cincinnati Bengals who played one game for the Bengals in California had only temporary employment in California and thus was exempt from California’s workers’ compensation laws.

In an en banc decision issued on June 18, 2013, the Workers’ Compensation Appeals Board (WCAB) ruled that a football player employed by the Cincinnati Bengals who played one game for the Bengals in California had only temporary employment in California and thus was exempt from California’s workers’ compensation laws.

Labor Code Section 3600.5(b) provides that an employee who was hired outside of California and the employee’s employer are exempt from California’s workers’ compensation laws if these four conditions are satisfied: (1) the employee was only temporarily working in California; (2) the employer furnishes workers’ compensation insurance under the laws of another state which covers the employee’s employment while in California; (3) the other state recognizes California’s extraterritorial provisions; and (4) the other state exempts California employees and employers covered by California’s workers’ compensation laws from the application of the laws of the other state.

Wesley Carroll was hired in Ohio to play football for the Cincinnati Bengals during the 1993-1994 season. In the course of the season, the Bengals played one game in California. After working for other teams, Carroll ended his football career in 1996. In 2006, Carroll filed a cumulative injury workers’ compensation claim in California.

The Bengals argued that the team and Carroll were exempt from California’s workers’ compensation laws under Labor Code Section 3600.5(b). The workers’ compensation judge found that Section 3600.5(b) did not exempt the Bengals from the provisions of California’s workers’ compensation laws and awarded Carroll benefits against the Bengals. 

The WCAB’s June 18 majority decision rescinded the judge’s order and award. The WCAB concluded that the record established that the Bengals and Carroll met all the necessary conditions of Section 3600.5(b), and they were exempt from California’s workers’ compensation laws in 1993, when Carroll was in California working for the Bengals.

On the issue of whether Carroll was only temporarily doing work in California, the WCAB held that “[t]he plain meaning of the word ‘temporary’ compels the conclusion that applicant was only ‘temporarily’ doing work in California for the Bengals …” Carroll’s employment duties in California were limited to two days in 1993 to participate in one of the Bengals’ 16 games that season.

On the issue of whether the Bengals furnished workers’ compensation under the laws of Ohio that covered Carroll’s employment in California, the WCAB pointed to the Bengals’ certificate of self-insurance from the Ohio Bureau of Workers’ Compensation and Ohio statutes which require self-insured employers to provide extraterritorial coverage. The WCAB held that this evidence established that the Bengals furnished workers’ compensation coverage under the laws of Ohio that covered Carroll’s employment while he was playing for the team in California in 1993.

Commissioner Marguerite Sweeney filed a dissent to the WCAB’s majority decision. Commissioner Sweeney contended that Carroll was not a temporary employee under Labor Code Section 3600.5(b), but instead was an employee “regularly employed” in California under Labor Code Section 3600.5(a). She pointed to WCAB panel decisions which provided jurisdiction to employees who regularly come to California to perform work duties for temporary periods of time and asserted that Carroll “routinely came into California to participate in pre-scheduled games as part of his regular work duties for the Saints and the Bengals. This is in contrast to an employee who temporarily enters the state on a single, brief occasion with no expectation of returning on a regular or routine basis.”

Commissioner Sweeney disputed the majority’s conclusion that the Bengals furnished the insurance coverage required by Section 3600.5(b). Carroll had argued that his Ohio workers’ compensation claim was barred by that state’s statute of limitations, but his claim was not barred in California. Commissioner Sweeney’s dissent states, “This difference in the procedural protections provided under the laws of Ohio and California shows that the ‘insurance coverage’ provided by the Bengals did not ‘cover such employee’s employment while in this state’ to the same extent that a California employer would have been obligated to provide ‘insurance coverage’ under California law.”

The WCAB's majority decision and Commissioner Sweeney's dissent in Carroll v. Cincinnati Bengals are available at www.dir.ca.gov/wcab

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