What the panel ordered
The Appeals Board rescinded the WCJ's finding that United Native Housing does not enjoy sovereign immunity and substituted a finding that it does enjoy sovereign immunity, dismissing United Native Housing as a party defendant.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
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:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
United Native Housing was formed for the purpose of accessing funds that were not available to tribal entities.
Favours neutral
This fact was found and considered in applying the Miami five-factor test for sovereign immunity, impacting the analysis of the entity's purpose and financial relationship.
Northern Circle Indian Housing Authority exercises control over United Native Housing.
Favours Defendant prevailed
This fact supported the finding that the fourth Miami factor (tribal control) favors sovereign immunity for United Native Housing.
From the decision · page 6The fourth factor considers the tribes control over the entity. Here, Northern Circle, a tribal entity, exercises control over United Native Housing.
United Native Housing was created by Northern Circle and is closely related to it, serving as a regional affordable housing provider with a focus on Native Americans.
Favours Defendant prevailed
This fact supported the finding that the first Miami factor (method of creation) favors sovereign immunity for United Native Housing.
United Native Housing was partially funded by Northern Circle and received material in-kind support, indicating a strong financial relationship.
Favours Defendant prevailed
This fact supported the finding that the fifth Miami factor (financial relationship) favors sovereign immunity for United Native Housing.
There was a lack of intent by the tribes and Northern Circle to share sovereign immunity with United Native Housing.
Favours Applicant prevailed
This fact was weighed against sovereign immunity but was outweighed by the other four factors in the overall assessment.
From the decision · page 6For all these reasons, it is determined that the seven tribes and Northern Circle did not intend to share their sovereign immunity when forming United Native Housing. To do so would have defeated the purpose for which United Indian Housing Development Corporation was formed.
The rules the panel named
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.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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