George Zeber filed a workers’ compensation claim for cumulative injury sustained during his employment with the New York Yankees from 1968 through 1978. Whether the New York Yankees had workers’ compensation coverage during this time was disputed by Travelers Indemnity Company.

After a three day trial, The WCJ found Zeber, while employed from June 1, 1968 through September 1, 1978 with the New York Yankees, sustained an injury arising out of and in the course of his employment. The WCJ, however, deferred any finding of permanent disability, apportionment or attorney fees pending development of the medical record.

The WCJ also found the New York Yankees had coverage provided by an insurer, now administered by Travelers. In light of that finding, the WCJ noted that disputes between the parties involving a right of contribution under section 5500.5 must be sent to arbitration pursuant to section 5275, subdivision (a)(2).

Travelers filed a petition for reconsideration, arguing (1) the “New York Yankees failed to prove the existence of workers’ compensation coverage from the period of April 5, 1977 to September 1, 1978,” and (2) Zeber’s “[s]ubmitted medical reports were not substantial medical evidence.” Subsequently, the WCAB partially granted the petition for reconsideration. On September 13, 2022, it amended the WCJ’s decision to (1) “defer the issue of insurance coverage which is subject to mandatory arbitration”; and to “[a]mend the award to clarify that it is against Travelers.”

On October 28, 2022, Travelers filed its first Petition for Writ of Review with the Court of Appeal. The petition argued the WCAB erred in deferring the issue of insurance coverage to mandatory arbitration because mandatory arbitration under section 5275, subdivision (a) applies only to injuries occurring on or after January 1, 1994 and Zeber’s injuries occurred long before 1994. It further argued that the New York Yankees failed to satisfy their burden of proof at trial that the New York Yankees were insured during Zeber’s last injurious year.

The WCAB filed an informal letter responding to the petition. It stated that after further review of the administrative record, it concluded no award could be issued against Travelers until the deferred insurance coverage issues are finally adjudicated. The WCAB asserted “the issue of whether the insurance coverage in this case is subject to mandatory arbitration under . . . section 5275 has not yet been raised or adjudicated below.” It requested this court annul the decision and remand the matter for the WCAB to issue a corrected reward.

On February 9, 2023, the Court of Appeal issued an order vacating the WCAB’s decision and remanding the matter for further proceedings. At that time it declined to address any issue raised in the petition.

Following remand, on March 1, 2024, the WCAB issued an opinion and decision. It reinstated and affirmed its September 13, 2022 decision but rescinded and deleted the award pending further proceedings. The WCAB returned the matter “to the trial level for further proceedings, including but not limited to mandatory arbitration of insurance coverage . . . .” (Zeber v. New York Yankees (Mar. 1, 2024, ADJ10857121.)

On April 15, 2024, Travelers filed its second Petition for Writ of Review, arguing arguing section 5275, subdivision (a)(1) applies only to cases involving injuries occurring on or after January 1, 1994. Because Zeber admitted he sustained his cumulative injury no later than 1978, Travelers argues the insurance coverage dispute must be determined by a workers’ compensation judge (WCJ), and not by an arbitrator.

The Court of Appeal annulled the WCAB’s decision, and remanded the case for further proceedings, including a finding of the date of injury for purposes of mandatory arbitration in the unpublished case of Travelers Indemnity Co. v. Workers’ Compensation Appeals Bd. CA4/3 – G064030 (May, 2025).

The WCJ never made a finding on the date of injury for purposes of section 5275. The WCAB suggests the Court of Appeal annul the challenged decision and remand for further proceedings, including a finding of the date of injury for purposes of section 5275.

“Travelers’ argument is based on its request for judicial notice of a stipulation by the parties. We deny the request because we cannot consider evidence outside of the certified record. (See § 5951 [“No new or additional evidence shall be introduced in [the reviewing] court, but the cause shall be heard on the record of the appeals board, as certified to by it”].) Nevertheless, the certified record contains a copy of the stipulation, so we consider Travelers’ argument.”

“By using ‘date of injury’ as described in section 5275, subdivision (b), it can be inferred that the Legislature intended ‘date of injury’ to mean the same for section 5275, subdivision (a)(1). In sum, the ‘date of injury’ for purposes of mandatory arbitration in cases involving cumulative injury is the “date of injury” set forth in section 5412.”

“As the WCAB and Travelers both noted, the WCJ never made a finding of the “date of injury” under section 5412 for the purposes of section 5275, subdivision (a)(1). Rather, the WCJ discussed the “date of injury” for statute of limitations purposes only, and found that “without appropriate knowledge, the claim cannot be barred pursuant to [section] 5412.” Because the “date of injury” is a factual question and a prerequisite for mandatory arbitration, we conclude the WCAB acted in excess of its authority to send the insurance coverage dispute to mandatory arbitration.”