Authorities as the decision cited them, with how this panel applied each one.
People v. Miami Nation Enterprises (2016) 2 Cal.5th 222
Five-factor test for tribal immunity from People v. Miami Nation Enterprises (2016) 2 Cal.5th 222
The Appeals Board applied the five-factor test to determine whether United Native Housing Development Corporation shares in the sovereign immunity of the tribe and concluded it does.
From the decision · page 3However, where the applicant is claiming workers' compensation against a "tribally
affiliated entity," as here, the burden is on the tribal entity to establish that it enjoys the same
sovereign immunity as the Native American tribe itself, pursuant to a five-factor test. In Miami,
the California Supreme Court summarized this burden and the five-factor test as follows:
California Code of Regulations, title 8, section 10955
Standard for petitions for reconsideration and removal under California Code of Regulations, title 8, section 10955
The Appeals Board treated the petition for reconsideration as the correct legal vehicle to challenge the WCJ's decision on jurisdiction and rejected the petition for removal as inappropriate for this final decision.
From the decision · page 2Applicant filed an answer.
The WCJ submitted a Report and Recommendation ("Report").
Based on our review of the record and applicable law, we have re-weighed the five factors
set forth in the Miami decision, and we conclude that the preponderance of evidence establishes
petitioner's sovereign immunity. As our Decision After Reconsideration, we will rescind the
WCJ's finding to the contrary and substitute our finding of sovereign immunity.
In reference to the petition for removal filed by petitioner, we note that if a decision
includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are
resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan,
Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).)
Threshold issues include but are not limited to, injury arising out of and in the course of
employment, jurisdiction, the existence of an employment relationship and statute of limitations
issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5
Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration
of a final decision bars later challenge to the propriety of the decision before the WCAB or Court
of Appeal. (See Lab.
Labor Code section 5904
Finality and timeliness of petitions for reconsideration under Labor Code section 5904
The Appeals Board noted that failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or Court of Appeal.
From the decision · page 2Applicant filed an answer.
The WCJ submitted a Report and Recommendation ("Report").
Based on our review of the record and applicable law, we have re-weighed the five factors
set forth in the Miami decision, and we conclude that the preponderance of evidence establishes
petitioner's sovereign immunity. As our Decision After Reconsideration, we will rescind the
WCJ's finding to the contrary and substitute our finding of sovereign immunity.
In reference to the petition for removal filed by petitioner, we note that if a decision
includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are
resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan,
Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).)
Threshold issues include but are not limited to, injury arising out of and in the course of
employment, jurisdiction, the existence of an employment relationship and statute of limitations
issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5
Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration
of a final decision bars later challenge to the propriety of the decision before the WCAB or Court
of Appeal. (See Lab.