Knickerbockers v. Workers' Comp. Appeals Bd.

• Decision Date: 01 October 2015
• Docket Number: No. B262759,B262759
• Citation: 240 Cal.App.4th 1229,193 Cal.Rptr.3d 287
• Court: California Court of Appeals Court of Appeals
• Parties: NEW YORK KNICKERBOCKERS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Durand Macklin et al., Respondents.

240 Cal.App.4th 1229

193 Cal.Rptr.3d 287

NEW YORK KNICKERBOCKERS, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD and Durand Macklin et al., Respondents.

No. B262759

Court of Appeal, Second District, Division 5, California.

Filed October 1, 2015

Murphy & Beane, Michael J. McKernan for Petitioners.

Law Offices of Ron Mix, Ronald J. Mix for Respondent Durand Macklin.

No appearance for Respondents Los Angeles Clippers, Atlanta Hawks, and Insurance Company of America.

MOSK, J.

INTRODUCTION

Petitioner New York Knickerbockers (petitioner), a professional basketball team in the National Basketball Association (NBA), filed an unverified petition for a writ of review against the Workers' Compensation Appeals Board (Appeals Board); Los Angeles Clippers; Atlanta Hawks; Insurance Company of North America, adjusted by ESIS; and Durand Macklin (Macklin), challenging what it refers to as the Appeals Board's jurisdiction¹ over a claim for accumulated injuries by Macklin, a former professional basketball player in the NBA from 1981 into 1984, for cumulative injuries. Relying on this court's decision in Federal Ins. Co. v. Workers' Comp. Appeals Bd. (2013) 221 Cal.App.4th 1116, 165 Cal.Rptr.3d 288 ( Johnson ), petitioner contends that in view of Macklin's contact with California, application of California workers' compensation law in this case would not be reasonable and thus would be a denial of due process.

We hold that Labor Code section 5954² and Code of Civil Procedure section 1069³ require verification of a petition to review a decision of the Appeals Board. After oral argument, we granted petitioner's request to file a verified petition. Thus, reaching the merits, we hold that California has a legitimate interest in an industrial injury when the applicant was employed by a California corporation and participated in other games and practices in California for non–California NBA teams, during the period of exposure causing cumulative injury. Subjecting petitioner to California workers' compensation law is reasonable and not a denial of due process. The decision of the Appeals Board is therefore affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Macklin claimed a cumulative trauma injury arising out of and occurring during the course of his employment as a professional basketball player while employed by multiple NBA teams. For the cumulative injury period of his workers' compensation claim, Macklin was employed as follows: August 17, 1981, through June 29, 1983, by the Atlanta Hawks (insured for workers' compensation by Insurance Company of North America); June 29, 1983, through December 20, 1983, by petitioner (permissibly self-insured and adjusted by Murphy and Beane, TPA; late 1983 through mid to late 1984 by the Albany Patroons—a minor league basketball team; and September 29, 1984, through October 24, 1984, by the Los Angeles Clippers (workers' compensation insurer was Insurance Company of North America, the adjusting agency of which was ESIS). The cumulative trauma period runs from August 17, 1981 through November 15, 1985.

During his time as a member of the Atlanta Hawks team, Macklin played three games in California against California teams—the Los Angeles Lakers, the Golden State Warriors, and the then-San Diego Clippers. When his team travelled out of state, it would arrive in the state in which the game was being played the day before the game and practice on the day of the game.

While employed by petitioner, Macklin practiced in the morning and played in a game in California against the Golden State Warriors on November 5, 1983; he travelled to California with his team for a game against the then-San Diego Clippers on December 9, 1983, and against the Los Angeles Lakers on December 11, 1983. He did not play in those games against the Clippers and the Lakers, but he participated in practices and warm-ups before those games.

In June of 1984, Macklin signed a contract with the Los Angeles Clippers Macklin attended the Clippers training camp in California, and played in preseason games in October 1984. Macklin was released by the Clippers on October 24, 1984.

Macklin testified that he was never advised about his right to file for workers' compensation benefits while he was playing. He first learned about his workers' compensation rights in approximately June 2011 from an NBA player and filed his claim two months thereafter. While with Atlanta, Macklin received treatment for his back and other body parts. With petitioner, he engaged in intense workouts and felt stress and strains all over his body. He had other physical maladies such as dehydration and low back pain.

B. Rulings of Workers' Compensation Judge (WCJ) and Appeals Board

The WCJ concluded there was subject matter jurisdiction over Macklin's cumulative trauma claim because at least a portion of Macklin's cumulative trauma injury occurred within the State of California. The WCJ also said it had personal jurisdiction over the three NBA defendants (Atlanta Hawks, petitioner, and Los Angeles Clippers). Each of the NBA defendants engaged in basketball business activities within California.

The WCJ found that Macklin had sustained various injuries to his lower back and elsewhere as a result of his employment as a basketball player. The WCJ concluded that the August 24, 2011, claim was not barred by the applicable statute of limitations because Macklin first learned in June 2011 that his physical injuries were related to his employment as a professional basketball player and that he had potential or actual rights to workers' compensation. The WCJ also determined that the doctrine of laches did not bar the claim because the date of injury was delayed by the NBA defendants' failure to advise or give notice to Macklin of his potential or actual rights to workers' compensation.

Macklin was found to be 76 percent permanently disabled with no apportionment of the cause of the injury with other, nonindustrial reasons. Petitioner sought reconsideration on the ground, inter alia, there was no subject matter jurisdiction because "there [was] an insufficient relationship between California [and] the injuries suffered and lack of a ‘legitimate interest’ in the matter to determine that California workers' compensation law should apply as it pertains" to petitioner. The WCJ recommended that reconsideration be denied.

The Appeals Board affirmed the WCJ's award. The Appeals Board concluded that "the effect of applicant's work in this state while employed by his California employer, [the] Los Angeles [Clippers], along with the effect of his work within the state while employed by his other employers, establishes more than a de minimis connection between the injury and this state." According to the Appeals Board, there was no denial of due process in exerting subject matter jurisdiction over petitioner because California had a legitimate interest in allocating liability among Macklin's employers during the period of injury exposure.

C. Petition for Writ of Review

Petitioner filed a timely, but unverified, petition for writ of review asserting a lack of subject matter jurisdiction. In the petition, petitioner contended that Macklin had no connection with California, and there was no indication of an injury in California. Petitioner further argued that Macklin's one game in California as a New York Knickerbocker, in which he suffered no injury, was de minimis and therefore could not create a legitimate interest for California in his injuries.

Macklin objected to consideration of the petition because it was not verified. Macklin also objected to petitioner's so-called forum selection of the Second District. In reply, petitioner argued that verification is not required by rule 8.495 of the California Rules of Court, which governs petitions for writs of review in workers' compensation cases, and that the venue was proper.

We granted the petition for a writ of review. After oral argument, we permitted petitioner to file a verification of its petition, which petitioner then filed.

DISCUSSION

A. Petition for a Writ of Review Must Be Verified

Petitioner contended that it did not have to file a verified petition. Writs of review are governed generally by Code of Civil Procedure sections 1067 through 1077. As noted, the Labor Code provides that "[t]he provisions of the Code of Civil Procedure relating to writs of review shall, so far as applicable, apply to proceedings in the courts under the provisions of this article." ( Lab.Code, § 5954.) Article 2 of division 4, part 4, chapter 7 of the Labor Code, consisting of Labor Code sections 5950 to 5956, deals with judicial review of the decisions of the Appeals Board. Judicial review of decisions of the Appeals Board is authorized by Labor Code section 5950.⁴ The scope of that judicial review is set forth in Labor Code section 5952.⁵ Thus, while aspects of the judicial review of the decisions of the Appeals Board are governed specifically by the Labor Code, the general provisions of the Code of Civil Procedure governing writs of review also apply to judicial review of Appeals Board's decisions. (See Lab.Code, § 5954.) Code of Civil Procedure section 1069 is one such provision. It provides as follows: "The application [for a writ of review] must be made on the verified petition of the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice." (See 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 172, p. 1079 ["In General . The petitioner (or plaintiff) makes an ‘application’ by a ‘verified petition.’ ( C.C.P. 1069, 1086, 1103(a) )"].)

That Code of Civil Procedure section 1069 governs petitions for writs seeking review of decisions of the Appeals Board is consistent with the purpose of a verification. A "verification" is an affidavit verifying the truth of the matters...