“[T]he Appeals Board will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers’ compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative trauma injury.  A party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.”

The above language is lifted from the opinion in the case of Dennis McKinley v. Arizona Cardinals (En Banc, January 15, 2013).  My readers will recall that their humble blogger has touched, a time or two, upon the issue of those souls lucky enough to visit California and call it work, only to return and call it litigation.

Here’s the background: Dennis McKinley played for the Arizona Cardinals in the National Football League.  His contract of employment was signed in Arizona in 1999, and he played until 2003.  During that time, the Arizona Cardinals had 80 games, 40 of which were in Arizona and 33 in states that were NOT California.

Applicant’s legal theory was that his five days at a training camp in La Jolla, California, and the seven games played in this once-great state should allow him to shove the Cardinals down the meat-grinder that is California’s workers’ compensation system.

Previously, my dear readers may recall that we explored the defense included in Labor Code section 3600.5(b), which allows employers to avoid California jurisdiction in certain cases.  However, in the instant case, the WCAB rejected the argument that jurisdiction should not be exercised over this case because of section 3600.5(b).  Affirming the workers’ compensation Judge’s reasoning that “defendant did not offer any evidence on any of the conditions that would allow it to escape jurisdiction under [section] 3600.5(b)”, the Cardinals seemed trapped.

So what persuaded the WCAB to open the cage and set the Cardinals free?

McKinley’s employment contract included a “forum selection clause” which listed as a specific agreement that any workers’ compensation claims were to be brought in Arizona and not in any other state.

However, during McKinley’s career, he played in a total of 17 states (including California and Arizona).  So, by his theory, he would be able to bring his claim in any of those states.  California was nothing special – the contacts with this state were minimal and consisted of 7 games and 5 days at a training camp.

To quote the learned commissioners, “that limited connection is insufficient for the WCAB to exercise jurisdiction over [applicant’s] claim for workers’ compensation in derogation of the Arizona forum he and the Cardinals reasonably identified in their employment contracts as the place where any claim for workers’ compensation would be filed.”

So what made the forum selection clause enforceable?

First off, the WCAB noted that the contract was not signed in California, but in Arizona.  Second, the WCAB found that there was no fraud or overreaching in the signing of this contract.  Finally, the contract appeared reasonable – applicant spent most of his time in Arizona, so why not have the workers’ compensation claim adjudicated there?

Certainly, this case will see more appeals, but let’s look at the recent trend:

A U.S. District Court found that Atlanta Falcons players must bring their claims before the Georgia workers’ compensation system, and not in California, based on contracts signed by the players;

The 9th Circuit found that an applicant could not bring his claim for workers’ compensation benefits in California based on his claiming a cumulative trauma rather than a discrete injury;

A WCJ’s finding of jurisdiction was reversed to allow the Cleveland Browns to show that section 3600.5(b) should allow them to escape California jurisdiction.

Perhaps the courts are growing tired of professional athletes coming to California and dragging their reluctant employers with them.  Or perhaps there are enough cases burdening the California Comp system without us Californians looking for more trouble to pile onto our litigious plates.

When the river of appeals has dried up on this case and we have some settled law on this issue, the question will be how broadly the language of the law can be applied to protect traveling employees from California’s ruinous jurisdiction.