ADJ6694887 · November 30, 2023

The record does not establish the agent's physical location at the time of acceptance of the contract in California, so the record must be developed further to determine if a valid oral contract of hire was entered into in California.

From the decision · page 9Decisions of the Appeals Board "must be based on admitted evidence in the record. (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc) (Hamilton).) Our decision in Hamilton further held that, "for the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Hamilton, supra, 66 Cal.Comp.Cases at p. 476, italics added.) The WCJ or the WCAB, "may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based." (San Bernardino Community Hospital v. Workers. Comp. Appeals Bd. (McKernan) 74 Cal.App.4th 928 (64 Cal.Comp.Cases 986); see also McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 (63 Cal.Comp.Cases 261) [lack of substantial medical evidence on issue in dispute supported development of record]; M/A Com-Phi v. Workers' Comp, Appeals Bd.

The WCJ applied lower extremity impairment figures incorrectly and did not properly apply apportionment; the matter is returned to trial level for recalculation and further proceedings.

From the decision · page 10Defendant's Petition also avers error in the ratings determination of the WCJ. (Defendant's Petition, at p. 8:14.) Defendant avers the WCJ applied the lower extremity impairment identified for the right knee and bilateral ankles, but did not convert lower extremity impairment to whole person impairment prior to adjusting for age and occupation. (Id. at p. 8:20.) The WCJ's Report agrees that the lower extremity impairment figure was used inadvertently, and recommends we rescind the finding of permanent disability and return the matter to the trial level for recalculation. (Report, at p. 2.) We agree, and pursuant to our rescission of the F&A and order for development of the record, we will return the matter to the trial level as per the WCJ's recommendation.

The record does not establish the physical location of applicant's agent at the time he communicated acceptance of the contract to the Giants.

Favours Defendant prevailed

Without this evidence, the Board cannot determine if a valid oral contract of hire was formed in California, which is necessary for jurisdiction.

From the decision · page 9Decisions of the Appeals Board "must be based on admitted evidence in the record. (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc) (Hamilton).) Our decision in Hamilton further held that, "for the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Hamilton, supra, 66 Cal.Comp.Cases at p. 476, italics added.) The WCJ or the WCAB, "may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based." (San Bernardino Community Hospital v. Workers. Comp. Appeals Bd. (McKernan) 74 Cal.App.4th 928 (64 Cal.Comp.Cases 986); see also McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 (63 Cal.Comp.Cases 261) [lack of substantial medical evidence on issue in dispute supported development of record]; M/A Com-Phi v. Workers' Comp, Appeals Bd.

The WCJ applied lower extremity impairment figures directly without converting to whole person impairment and did not properly apply apportionment pursuant to Labor Code Section 4663.

Favours Defendant prevailed

This error required rescission of the permanent disability findings and return to trial level for recalculation.

From the decision · page 10Defendant's Petition also avers error in the ratings determination of the WCJ. (Defendant's Petition, at p. 8:14.) Defendant avers the WCJ applied the lower extremity impairment identified for the right knee and bilateral ankles, but did not convert lower extremity impairment to whole person impairment prior to adjusting for age and occupation. (Id. at p. 8:20.) The WCJ's Report agrees that the lower extremity impairment figure was used inadvertently, and recommends we rescind the finding of permanent disability and return the matter to the trial level for recalculation. (Report, at p. 2.) We agree, and pursuant to our rescission of the F&A and order for development of the record, we will return the matter to the trial level as per the WCJ's recommendation.

Dr. Hyman opined that applicant was not yet permanent and stationary as of November 18, 2009, but would be in six months; multiple reports stated no change to prior opinions.

Applicant contended Dr. Hyman's report provided a sufficient basis to decide permanent disability for deferred body parts, but the WCJ found the report was not yet final and the record incomplete.

From the decision · page 4Applicant filed a letter addressed to the WCJ on October 8, 2019, requesting the WCJ rely on the November 18, 2009 report of Dr. Hyman for ratings purposes. Therein, Dr. Hyman opined that applicant was not yet permanent and stationary but would be in six months. Applicant observed that Dr. Hyman had issued multiple reports thereafter stating he was making no change to his prior opinions. Applicant concluded that "it would appear that factually, applicant would have been permanent and stationary on or about 5/19/09." (Applicant's Petition, p. 1.) In the alternative, applicant proposed a joint interrogatory to Dr. Hyman, or that the letter be treated as a petition for reconsideration. (Id. at p. 2.) We will treat applicant's October 8, 2019 letter as a petition seeking reconsideration. (Lab. Code, § 5903; Cal. Code Regs., tit. 8, § 10940.)

Alaska Packers Asso. v. Industrial Acci. Com. (1934) 1 Cal.2d 250

Alaska Packers Asso. v. Industrial Acci. Com. (1934) 1 Cal.2d 250

Extends benefits of the act to nonresidents; residency not dispositive of jurisdiction.

From the decision · page 7section 5305 "has been nullified by the decision in Quong Ham Wah Co. v. Industrial Acc. Com. [citations], which held that the federal Constitution extended the benefits of the act to nonresidents also. (Alaska Packers Asso. v. Industrial Acci. Com. (1934) 1 Cal.2d 250, 255 [1934 Cal. LEXIS 358].) Thus, the applicant's residency at the time of his contract negotiations is not dispositive of the issue of California jurisdiction.

Labor Code Section 5305

Labor Code Section 5305

Jurisdiction requires contract of hire made in California; residency alone is insufficient.

From the decision · page 6The 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. Any employee described by this section, or his or her dependents, shall be entitled to the compensation or death benefits provided by this division.

Labor Code Section 3600.5(a)

Labor Code Section 3600.5(a)

Provides compensation for injuries outside California if employee hired or regularly working in California.

From the decision · page 6Labor Code3 Section 3600.5(a) provides that, "[i]f 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 this 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."

Quong Ham Wah Co. v. Industrial Acc. Com. (1920) 184 Cal.26

Quong Ham Wah Co. v. Industrial Acc. Com. (1920) 184 Cal.26

Residency requirement of Labor Code Section 5305 nullified by federal Constitution's privileges and immunities clause.

From the decision · page 6We begin our discussion by observing that the California Supreme Court has held the residency requirement of section 5305 to be in conflict with the privileges and immunities clause of the United States Constitution. (U.S. Const., art. IV, § 1; Quong Ham Wah Co. v. Industrial Acci. Com. (1920) 184 Cal.26 [1920 Cal. LEXIS 295].) Accordingly, the residency requirement of

Applicant's testimony that he was physically present in California when he authorized his agent to accept contracts on his behalf, but the record does not establish the agent's location at the time of acceptance.