The opinion
Filed 10/1/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
NEW YORK KNICKERBOCKERS, No. B262759
Petitioner, (W.C.A.B. No. ADJ7993918)
v.
WORKERS‟ COMPENSATION
APPEALS BOARD and DURAND
MACKLIN et al.,
Respondents.
ORIGINAL PROCEEDING: Petition for Writ of Review. Affirmed.
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
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 (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
1
The parties use the term “jurisdiction” or “subject matter jurisdiction” in
connection with the issue of whether the application of the California workers‟
compensation law would be unreasonable so as to be a denial of due process. “Lack of
jurisdiction in its most fundamental or strict sense means an entire absence of power to
hear or determine the case, an absence of authority over the subject matter or the parties.”
(Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) “The term
„jurisdiction‟ over the action is also used in a variety of less fundamental circumstances,
requiring care in reliance on cases using the term.” (1 Schwing, Cal. Affirmative
Defenses (2d ed. 2015) § 7:1, p. 479 (Schwing); Abelleira v. District Court of Appeal,
supra, 17 Cal.2d at pp. 288-289.)
2
“The 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.)
3
“The application [for a writ of review] must be made on the verified petition of the
party beneficially interested.” (Code Civ. Proc., § 1069.)
2
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
3
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 pre-season
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.
4
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 is no indication of an injury in California.
Petitioner further argued that Macklin‟s one game in California as a New York Knick, 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.
5
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 “the 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 chapter 7, part 4
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
4
“Any person affected by an order, decision, or award of the appeals board may,
within the time limit specified in this section, apply to the Supreme Court or to the court
of appeal for the appellate district in which he resides, for a writ of review, for the
purpose of inquiring into and determining the lawfulness of the original order, decision,
or award or of the order, decision, or award following reconsideration.” (Lab. Code, §
5950.)
5
Labor Code Section 5952, states as follows: “The review by the court shall not be
extended further than to determine, based upon the entire record which shall be certified
by the appeals board, whether: (a) The appeals board acted without or in excess of its
powers. (b) The order, decision, or award was procured by fraud. (c) The order,
decision, or award was unreasonable. (d) The order, decision, or award was not
supported by substantial evidence. (e) If findings of fact are made, such findings of fact
support the order, decision, or award under review. Nothing in this section shall permit
the court to hold a trial de novo, to take evidence, or to exercise its independent judgment
on the evidence.
6
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 covered by it. (Code
Civ. Proc., § 2009; Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201,
204 (Star Motors).) The purpose of a verification “„is to assure good faith in the
averments or statements of a party‟ to litigation.” (Star Motors, supra, 88 Cal.App.3d at
p. 204, citations omitted.) Verifying a petition for a writ of review, which almost
invariably contains factual averments, certifies the facts upon which the application is
based and assures that the averments are made in good faith.
In Seckels v. Department of Industrial Relations (1929) 98 Cal.App. 647, 648, the
court recognized in dictum that Code of Civil Procedure section 1069‟s verification
requirement applied to a petition for writ of review addressing a decision of the Appeals
Board, then the Industrial Accident Commission,6 through the predecessor of Labor Code
section 5954. Treatises continue to state that a petition for writ of review requires
verification, even though published decisions apparently have not addressed the matter.
(California Workers‟ Compensation Practice (CEB 2014), Judicial Review, § 22.43(3),
pp. 22-39; 2 Hanna, Cal. Law of Employee Injuries and Workers‟ Compensation (rev. 2d
6
The Industrial Accident Commission is the predecessor to the Appeals Board.
(Republic Indemnity Co. v. Workers’ Comp. Appeals Bd. (1981) 115 Cal.App.3d 361,
367.)
7
ed. 2013) § 34.11[2][c], p. 34-14; 2-20; Rassp & Herlick, California Workers‟
Compensation Law (7th ed. 2012) § 20.07[3].)
It is true, the rule of the California Rules of Court specifically governing petitions
for writs of review addressing decisions of the Appeals Board does not require
verification. (Cal. Rules of Court, rule 8.495.) Other California rules of court, such as
rule 8.496(a)(1), which governs petitions to review decisions of the Public Utilities
Commission, explicitly require verification. Code of Civil Procedure section 1069
specifically requires verification, and this provision is made applicable to petitions to
review decisions of the Appeals Board by Labor Code section 5954. The California
Constitution requires the Judicial Council to adopt rules for court administration, and
practice and procedure, not “inconsistent with statute.” (Cal. Const., art. VI, § 6, subd.
(d).) Here, to the extent rule 8.495 does not require verification for petitions for writs of
review addressing Appeals Board decisions, that rule would be inconsistent with Code of
Civil Procedure section 1069 and Labor Code section 5954 and therefore not controlling.
As noted, the authorities provide that verification is required, there is no authority
to the contrary, and there is dictum in at least one decision that supports the conclusion
that verification is required. We conclude that petitions for writs of review addressing
decisions of the Appeals Board must be verified. Because courts generally permit a party
to cure such defects as the failure to file a required verification (1 Schwing, supra, § 11:1,
p. 600; § 11:28, p. 633), following oral argument, we granted petitioner‟s request to file a
verified petition.
B. Choice of Forum
Petitioner contends that the choice of forum was inappropriate because it was filed
in the Second District of the California Court of Appeal, which rendered the Johnson,
supra, 221 Cal.App.4th 1116 decision and thus would be a favorable forum for the
Appeals Board. The answer asserts that the underlying case was determined in the Santa
Ana division of the Appeals Board, which would result in review by the Fourth District
of the California Court of Appeal. Relying on the location of the third party
8
administrator (Culver City), however, petitioner filed in the Second District. Although
Labor Code section 5950 requires a petitioner to file in the district of the petitioner‟s
residence, when that is not possible, as in this case, the district of the petitioning carrier‟s
residence is an acceptable venue. (Argonaut Ins. Co. v. Workmen’s Comp. App. Bd.
(1967) 247 Cal.App.2d 669, 671-672.) In any event, filing in the wrong district is not a
jurisdictional defect. (National Kinney v. Workers’ Comp. Appeals Bd. (1980) 113
Cal.App.3d 203, 208-209.)
C. Standard of Review
The Appeals Board‟s findings of fact, even ultimate facts, are conclusive and not
subject to review (Lab. Code, § 5953) if supported by substantial evidence. (Lab Code,
§ 5952, subd. (d); Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003)
30 Cal.4th 1281, 1290; County of Kern v. Workers’ Comp. Appeals Bd. (2011) 200
Cal.App.4th 509, 516-517.) We may not hold a trial de novo, take evidence or exercise
independent judgment. (Lab. Code, § 5952.) The Appeals Board‟s interpretation of the
Workers‟ Compensation Act is reviewed de novo, but such interpretation by the Appeals
Board is entitled to deference. (See Brodie v. Workers’ Comp. Appeals Bd. (2007) 40
Cal.4th 1313, 1331; Department of Rehabilitation v. Workers’ Comp. Appeals Bd., supra,
30 Cal.4th at p. 1290.)
D. California Has a Legitimate Interest Over Macklin’s injuries
Purportedly based upon our decision in Johnson, supra, 221 Cal.App.4th 1116,
petitioner contends that there is no jurisdiction for purposes of California worker‟s
compensation law over petitioner, as the employment relationship between Macklin and
petitioner is de minimis. The issue is whether California has a sufficient relationship
with Macklin‟s injuries to make the application of California workers‟ compensation law
reasonable, which is a matter of due process. (Id. at p. 1130.)
Johnson, supra, 221 Cal.App.4th 1116, 1120, involved a professional basketball
player, Adrienne Johnson (Johnson), who played for the Connecticut Sun, a professional
9
women‟s basketball team. Although she played in only a single game in California,
Johnson filed a workers‟ compensation claim in California against the Connecticut Sun
for industrial cumulative injuries. (Id. at p. 1121.) Johnson never resided in California
and none of the teams for which she played was based in California. In short, the sole
contact Johnson had with California was the one game she played in California. (Id. at
pp. 1120-1121.)
This court held in Johnson, supra, 221 Cal.App.4th at page 1130, that “California
[did] not have a sufficient relationship with Johnson‟s injuries to make the application of
California‟s workers‟ compensation law reasonable.” “A single basketball game played
by a professional player does not create a legitimate interest in injuries that cannot be
traced factually to one game. The effect of the California game on the injury [was] at
best de minimis.” (Ibid, fns. omitted.)
Petitioner contends that because Macklin played only one game and participated
in three practice sessions for them in California, Macklin‟s employment by petitioner is
de minimis, just as in Johnson, supra, 221 Cal.App.4th at page 1130. But, the question is
whether Macklin‟s injuries have a sufficient relationship with California for the
invocation of California‟s workers‟ compensation law. Whether those injuries have a
sufficient relationship with California is dependent on a number of factors that we set
forth in Johnson.7 A dispositive factor here is that, unlike in Johnson (see 221
7
“Section 181 of the Restatement Second of the Conflict of Laws (section 181)
specifically addresses when a state may award relief to a person under its workers‟
compensation law. Section 181 provides that a state may do so if the injury occurred in
that state; if the employment is principally located in the state; if the employer supervised
the employee's activities from a place of business in the state; if the state is that of the
most significant relationship to the contract of employment with respect of the issue of
workers‟ compensation under the rules of sections 187, 188, and 196 of the Restatement
Second of the Conflicts of Law; if the parties have agreed in the contract of employment
or otherwise that their rights should be determined under the workers‟ compensation act
of the state; or if the state has some other reasonable relationship to the occurrence, the
parties, and the employment. (See also [13] Larson‟s [Workers‟ Compensation Law]
(rev. ed. 2013) § 142.01, p. 142-02 (rel. 108-6/2012) [same formulation].)” (Johnson,
supra, 221 Cal.App.4th at pp. 1126-1127, fn. omitted.)
10
Cal.App.4th at p. 1130), Macklin played for a California team for a portion of the period
of the cumulative injury. That Macklin, while employed by petitioner and Atlanta,
participated in seven games and additional practices—at least one lasting two and one-
half hours in California—is a factor in determining whether the connection between his
injury and California is sufficient to conclude that the application of California workers‟
compensation law here is reasonable. Because of the employment by a California-based
team, we do not have to determine if the other activities in California are sufficient by
themselves to make the application of California workers‟ compensation law reasonable,
although those activities are more than the one game that Johnson concluded was de
minimis.8
Petitioner contends that if the game Macklin played for petitioner was de minimis
and would not result in jurisdiction, the fact that Macklin was later employed by a
California team should not confer jurisdiction over the claim against petitioner.
Employment by a California team during the period of the cumulative injury, so long as
the requirements of Labor Code section 5500.59 are met, is sufficient in this case to make
reasonable the application of the California workers‟ compensation law.
Under Labor Code section 5500.5, subdivision (a), liability is limited to employers
who employed Macklin during one year immediately preceding either the date of the
injury or during one year preceding the last date on which the employee was employed in
the occupation that exposed him to the hazards of the cumulative injury, whichever first
8
Our opinion as to the applicability of the workers‟ compensation law only applies
to claims filed by professional athletes prior to September 15, 2013. (Stats. 2013, ch.
653, § 1.) We express no opinion as to the effect on claims by professional athletes after
that date.
9
Labor Code section 5500.5, subdivision (a) deals with cumulative injury arising
out of more than one employment, and provides that “liability shall be imposed upon the
last year of employment exposing the employee to the hazards of the occupational
disease or cumulative injury for which an employer is insured for workers‟ compensation
coverage . . . .”
11
occurred. As the Appeals Board correctly explained, petitioner‟s liability is predicated on
the fact that petitioner was Macklin‟s employer during that one year period. The
allocation of liability in cumulative injury cases under Labor Code section 5500.5,
subdivision (a) is not the same as determining whether California can apply its workers‟
compensation law to Macklin‟s injuries. As he admittedly was petitioner‟s employee for
part of the critical year, Labor Code section 5500.5, subdivision (a) applies.
DISPOSITION
The award of the Appeals Board is affirmed. The case is remanded to the Appeals
Board for the purpose of awarding respondent Macklin his reasonable attorney fees for
services rendered in connection with the petition for writ of review. (Lab. Code, § 5801.)
CERTIFIED FOR PUBLICATION
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
12