Filed 10/30/19 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, Plaintiff , Cross

- defendant and Appellant,

v. SAN DIEGO COUNTY SCHOOLS RISK MANAG EMENT JOINT POWERS AUTHORITY et al. , Defendants , Cross

- complainants and Respondents. D074360

(Super. Ct. No. 37

- 2016

- 00004801

- CU

- IC

- CTL)

APPEAL from a judgment of the Superior Court of San Diego County,
Katherine A. Bacal, Judge. Reverse d. Law Offices of Adrienne D ee Cohen, Adrienne D. Cohen and Julie R. Ursic for
Plaintiff , Cross

- defendant and Appellant.
Tencer S herman , Sam G. Sherman and Jessica L. Mulvaney for Defendants , Cross

complainants and Respondents.2

School bus driver Colleen Knowles sought workers ' compensation from her employer, Mountain Empire Unified School District ( the District). The District is a self

insured employer under the workers ' compensation scheme , and its workers ' compensation claims are administered through t he San Diego County Schools Risk Management Joint Powers Authority (JPA)

. JPA purchased excess workers ' compensation insurance to cover claims exceeding a set retention. T he District is an additional insured under th o se policies.
When a dispute over com pensation arose, Knowles and the District sought adjudication before t he Workers ' Co mpensation Appeals Board (WCAB)

. A n administrative law judge ultimately approved the ir stipulation that Knowles suffered a

" specific " injury on May 6, 2003 . The distincti on between a " cumulative " and a

" specific " injury matters for determining which of JPA ' s excess insurance policies was triggered

. As JPA ' s excess insurer during the stipulated injury date , Kemper Insurance Company (Kemper) indemnified JPA until it went in solvent. JPA then approached California Insurance Guarantee Association (CIGA) , a statutorily created insolvency insurer of last resort, to make up what Kemper had failed to pay

. But CIGA is only obligated to pay " covered claims, " defined to exclude clai ms for which other insurance is available. (Ins. Code, § 1063.1, subd. (c)(9).) On this basis CIGA denied coverage, asserting Knowles suffered a cumulative injury , which meant that
JPA might recover from a different excess insurer (other than Kemper) . C IGA sued JPA and the District ( collectively, defendants) for declaratory relief , asserting that because Knowles suffered a cumulative injury , JPA ' s claim was not a " covered claim. " In their3

cross - complaint, defendants sought reimbursement from CIGA of ben efit payments made to Knowles after Kemper went insolvent

. Defendants moved for summary judgment on the complaint and cross

- complaint. The trial court granted both motions and entered judgment in their favor , requiring CIGA
to reimburse $129,836

. 91 plu s costs. Central to the court ' s ruling, and to CIGA ' s appeal,
is a jurisdictional question: D oes the superior court have jurisdiction to find that Knowles suffered a cumulative injury even if this conflicts with the stipulation before the WCAB, or is inj ury characterization an i ssue within the WCAB ' s exclusive jurisdiction ? The court granted defendants ' motions because it believed the WCAB had exclusive jurisdiction to decide the nature of Knowles ' s injury. Although this issue appears to be one of first impression in California, federal
courts have rejected WCAB exclusivity in similar cases involving excess workers ' compensation insurance . ( San Francisco B ART Dist

. v. General Reinsurance Corp

. (N.D.Cal. 2015) 111 F.Supp.3d 1055, 1074 ( BART I ) , affirmed (9th Cir. 2017) 726 F.App ' x. 562 ( BART II

); San Diego Cty

. Schs

. Risk Mgmt

. Joint Powers Auth

. v. Liberty
Ins. Co rp . , et al. (2018) 339 F.Supp.3d 1019, 1030 ( Liberty ) .) F or reasons we explain, we agree with these authorities and conclude based on the purp ose of excess insurance
that the superior court has jurisdiction to characterize Knowles ' s injury in this action differently than was reflected in the WCAB stipulation . Accordingly, we reverse the judgment and direct the court to enter a new order denying defendants ' motions for summary judgment

.4 FACTUAL AND PROCEDURAL BACKGROUND
A

. Knowles Is Injured and Files a Workers ' Compensation Action Knowles began working for the District as a substitute school bus driver in 1986
and became a permanent driver in 1 993

. She injured her elbow in 1995 and felt muscle strain after bus a ccidents in 1998 and 2002. Her upper body pain seemed to worse n in 2002 and early 2003. On May 6, 2003, Knowles informed her supervisor that she was experiencing pain . T he superviso r told her to fill out a claim form for workers ' compensation benefits

. She did so a week later , listing tendonitis in her right elbow from " repeated us age over a long period of time [from ] 1995 to 2003. " Her supervisor filed a contemporaneous report
lik ewise attribut ing Knowles ' s injury to " repeated use over a long period of time. " Following a medical evaluation, Knowles was placed on a modified work schedule in February 2004

. She filled out an amended claim form i n March listing tendonitis in her righ t elbow and carpal tunnel syndrome in her right wrist, again from " repeated use over a long period of time [from] 1995

− 2003. " Knowles worked a modified schedule from February 2004 until her last day on June 16 , 2004

. In September , she submitted a third claim form indicating she had suffered an injury on May 6, 2003 , in her " right upper extremity

− neck " from driving a bus. As Knowles would later explain, May 6 was simply the date she reported the pain to her supervisor , not the date of any specific workp lace injury

. M edical reports consistently stated Knowles had pain from " repetitive overuse. "5

On September 3, 2004, Knowles filed an Application for Adjudication before the
WCAB. In its July 2005 answer, the District accepted her right elbow injury but disput ed injuries to her neck and upper extremities. It also disagreed she was injured on May 6, 2003, stating Knowles had instead suffered " CT [cumulative trauma] ending on 05/06/03. " Dr. Gregory Mack performed an Agreed Medical Evaluation in 2006 to

r esolve dispute d issues regarding Knowles ' s injuries

. Knowles continued to seek
treatment over the next several years. In July 2011, Know les and the District signed a S tipulation and Request for Award in the WCAB action

. Notwithstanding the District ' s p rior objection, the parties stipulated that Knowles suffered a " specific injury " on May 6, 2003 , to her shoulder, wri st, upper extremities, and neck

. The y further agreed on a payment schedule to cover Knowles ' s temporary and permanent disabilities. A w or kers ' c ompensation judge entered an Award (hereafter Award) in August 2011, indicating by checking a box that he had approved the parties ' factual stipulations

.6

B. Kemper Provides Excess Coverage for JPA
The District is a lawfully self

- insured employer u nder the workers ' compensation
scheme. (Lab. Code, § 3700

. ) 1 It i s a member of JPA , which administer s a self

insurance program for workers ' compensation claims involving its members . JPA, in
turn, opted to purchase excess workers ' compensation insurance . ( § 3702.8, subd. (c) .) The District is an additional insured on JPA ' s excess insurance policies. After the WCAB Award, JPA tendered compensation to Knowles and sought
reimbursement from its excess carrier , Kemper . Kemper ' s policy covered JPA from J uly 2002 to July 2003 , meaning it was in effect on the May 6, 2003 stipulated specific injury date. (JPA previously satisfied the self

- insured retention of $100,000 on the Kemper policy.) Kemper made payments totaling $207,908 until 2013, when it became insolvent.
C. After Kemper '

s Insolvency, JPA Seeks Reimbursement from CIGA JPA then turned to insolvency insurer CIGA for reimbursement. CIGA denied
coverage in May 2014 , explaining there was no evidence Knowles had suffered a specific injury

. 2 If her injury was found to be cumulative, CIGA believed that JPA could pursue
other available insurance

— namely, under the Swiss Re Group (Swiss Re) excess workers ' compensation insurance policy that covered JPA from July 2003 to Ju ne 30,
2004

.
1 Further statutory references are to the Labor Code unless otherwise indicated.
2 T he record indicates that even after stipulating to a specific injury before the WCAB, JPA ' s claim specialist continued to describe Know les ' s injury as " an accepted CT [cumulative trauma] claim " despite the WCAB Award.7

In No vember 201 5, defendants filed a request for " Reimbursement by CIGA " in the WCAB. T he WCAB corrected the original Award in April 2016 to reflect that the District was " Self

- Insured, " delete the erroneously named insurance carrier, and indicate that the District woul d be the responsible party under the Award. The amendment did not affect the parties ' stipulation that the Award was for a " specific injury " occurring on May 6, 2003. CIGA was not joined as a party to the WCAB action until May 6, 2016. Meanwhile in Fe bruary 2016 , CIGA filed this action in superior court

. It sought declaratory relief that JPA ' s reimbursement request is not a covered claim because Knowles suffered a cumulative injury for which other insurance is available. The parties agreed in October 2016 to stay WCAB proceedings pending resolution of the superior court action. Defendants answered the complaint and filed a cross - complaint for reimbursement of funds paid to Knowles after Kemper went insolvent

. D. The Motions for Summary Judgment
D ef endants filed motions for summary judgment on the complaint and cross

complaint. They argued the court lacked jurisdiction to determine Knowles suffered a cumulative injury, as this fact had already been settled before the WCAB

. The court agreed , disting uishing BART I , supra , 111 F.Supp.3d 1055 and concluding injury characterization was within the WCAB ' s exclusive jurisdiction

. After d efendants filed proposed judgments , CIGA promptly objected and sought
reconsideration or clarification , claiming the co urt ' s jurisdictional ruling did not resolve
CIGA ' s reimbursement obligation under the cross

- complaint

. Even i f the WCAB had exclusive jurisdiction over injury characterization, CIGA suggested the parties could8

litigate in that forum whether defendants ' re imbursement request was a " covered claim. " The court denied CIGA ' s motion for reconsideration as untimely , but set a hearing to determine " the form of judgment " to satisfy its request for clarification.
A t that hearing CIGA argued the court had simply r uled it lacked jurisdiction to decide Knowles suffered a cumulative injury, which did not support a reimbursement award on the cross

- complaint. Defendants disagreed, noting they had clearly requested summary judgment on the cross

- complaint and included ev idence supporting their request for reimbursement. The court took the unusual step of allowing supplemental briefing as to whether the proposed judgment awarding reimbursement reflected the
court ' s ruling

. T he court ultimately entered judgment in defenda nts ' favor on their cross

complaint, requiring CIGA to reimburse JPA $129,836.91 plus $3,335.87 in costs . It also entered judgment in defendants ' favor on CIGA ' s co mplaint, requiring CIGA to pay $3,33 5.87 in costs.
DISCUSSION Central to CIGA ' s appeal is whether the superior court has jurisdiction to
determine that Knowles suffered a cumulative injury after the WCAB approved a stipulation that her injury was specific in nature

. C onclud ing that the court has such jurisdiction , we must reverse . C ontext matters. This action addresses whether CIGA must cover a claim for an insolvent excess insurer. A court ' s resolution of a factual question underpinning excess coverage has no bearing on Knowles ' s recovery under the WCAB Award, since the District was a se lf

- insured employer under the Workers ' Compensation Act (WCA ;9

§ 3200 et seq.). Knowles is entitled to compensation pursuant to the Award. CIGA ' s action cannot change that; it will resolve only whether it must indemnify the District and
JPA for their bene fit payments

. A lthough " perhaps not optimal, and a situation to be avoided if possible " ( BART I , supra , 111 F.Supp.3d at p. 1065), the superior court has jurisdiction in this context to characterize Knowles ' s injury , even if its finding conflicts with the WCAB stipulation

. 1. Background Concepts This action involves an interplay between the workers ' compensation scheme,

excess coverage for self

- insured employers , CIGA ' s role as an insolvency insur er , and the distinction between a specific and a cumulative injury for purposes of CIGA ' s liability

. We briefly discuss each concept before turning to the jurisdictional inquiry.

a . The Workers ' Compensation Scheme and Excess Insurance Pursuant to its constitutional authority (Cal. Const., art. XIV, § 4), the Le gislature enacted the WCA as " a comprehensive statutory scheme governing compensation given to California employees for injuries incurred in the course and scop e of their employment. " ( Charles J. Vacanti , M.D. , Inc. v. State Comp. Ins. Fund (2001) 24 Cal. 4th 800, 810 ( Vacanti ).) This scheme rests on a presumed " compensation bargain " :

an employer assumes no - fault liability for workplace injuries in exchange for limits on recoverable compensation ; employees gain swift and certain payment without proof of
f ault but lose broader remedies in tort. ( Id. at p. 811; see §§ 3600, subd. (a) [conditions of compensation], 3602, subd. (a) [exclusive remedy]. )10

All employers except the state must " secure the payment of compensation " by
either carrying workers ' compe nsation insurance or self

- insuring. (§ 3700 ; La Jolla Beach & Tennis Club , Inc. v. Indus. Indem. Co. (1994) 9 Cal.4th 27, 36 ( La Jolla ).) Self

insured s must demonstrate a financial ability to administer and pay potential workers ' compensation claims to t heir employees. ( § 3700 , subd. (c).) T he District is a self

insured employer . Its workers ' compensation claims are managed by JPA, a joint powers authority created under Government Code section 6500 et seq. The WCA permits , but does not require, self

- i nsured employers to purchase excess workers ' compensation
insurance to discharge their compensation obligation . ( § 3702.8, subd. (c).) In this case
JPA purchased an excess policy covering the July 2002 to July 2003 period from Kemper ; a subsequent excess policy covering the July 2003 to June 30, 2004 period was obtained from Swiss Re.
Workers ' compensation benefits are automatically paid to an injured worker by a workers ' compensation insurer or self

- insured employer. If a dispute arises, the parties may litigate it before the WCAB. ( Vacanti , supra , 24 Cal.4th at p. 811; see §§ 5501,
5501.5

. ) Applications for adjudication in the WCAB are decided by a workers ' compensation administrative law judge. Th o se decisions are subject to administrative review before a three

- member panel of the seven - member WCAB. ( 1 Cal. Workers ' Compensation Practice ( Cont.Ed.Bar 4th ed. 2019) § 1.16, p. 1

- 10; see Lab. Code, §§ 111, 112.) The WCA provides only narrow grounds for judicial review of WCAB decisions. ( § 5952 .)11

b

. California Insurance Guarantee Association CIGA is a compulsory association of state

- regulated insurance companies created by statute. (Ins. Code, § 1063 et seq.) To insure against loss arising from an insolvent
insurer ' s failure to discharge its pol icy obligations, CIGA " collects premiums from its member insurers to the extent necessary to pay statutorily defined ' covered claims ' on behalf of insolvent insurers. (Ins. Code, §§ 1063.1, 1063.2, 1063.5; [citations] .) CIGA is not an insurer which issue s policies and assumes contractual obligations or collects premiums and makes profits, and does not stand in the shoes of the insolvent insurer for all purposes. " ( Fireman '

s Fund Ins. Co. v. Workers ' Comp. Appeals Bd. (2010) 189 Cal.App.4th 101, 111

– 112 ( Fireman ' s Fund ) .) Nor is it a fund for insurance companies
or self

- insureds. ( Id. at p. 112.) Instead, it is an i nsolvency insurer of last resort created to provide " limited financial protection for insureds and the public

. " ( Ibid. )
CIGA ' s powers, dut ies , and liabilities are strictly governed by statute, and its
coverage is not coextensive with an insolvent insurer ' s. ( Denny ' s Inc. v. Worker '

s Comp. Appeals Bd. (2003) 104 Cal.App.4th 1433, 1438 ( Denny ' s ) .) It is only obligated to pay

" ' covered claim s ' " (Ins. Code, § 1063.2, subd. (a)) , as defined in Insurance Code sections 1063.1, subdivision (c) and 1063.2, subdivisions (g) through (h). Among the prerequisites for CIGA ' s coverage, the claim must fall " within the coverage of an insurance policy of the insolvent insurer. " (Ins. Code, § 1063.1, subd. (c)(1).) Two exclusions from statutorily defined " covered claims " are raised here. First,
CIGA " is not liable where a solvent insurer or self

- insured employer is jointly and severally liable for the cl aim under the Labor Code. " ( Fireman ' s Fund , supra , 18912

Cal.App.4th at p. 112; see Ins. Code, § 1063.1, subd. (c)(9).) " W hen two or more insurers are jointly and severally liable for workers ' compensation benefits and one of them becomes insolvent, the po licy issued by the solvent insurer constitutes ' other
insurance ' for purposes of Insurance Code section 1063.1, subdivision (c)(9), which excludes the benefits from coverage by CIGA. " ( California Ins. Guarantee Assn. v. Workers ' Comp. Appeals Bd . (2016) 2 45 Cal.App.4th 1021, 1027.) Second , CIGA is not bound by default judgment s or stipulated judgment s against an insolvent insurer. (Ins. Code, § 1063.2, subd. (g).) Th is limitation protects CIGA from collusion by requiring the validity of a claim to be de ter mined in an adversarial proceeding before being reduced to a judgment that CIGA must honor. ( Aloha Pacific , Inc. v. California Ins. Guarantee
Assn. (2000) 79 Cal.App.4th 297, 309 .)

c. Cumulative V

ersus S pecific I njuries Central to this coverage disput e is whether Knowles suffered a specific injury or a

cumu lative one. The WCA defines a " ' specific ' " injury a s one caused by a single incident or exposure. (§ 3208.1, subd (a)

. ) By contrast, a " ' cumulative ' " injury results from repetitive trauma over a period of time. (§ 3208.1, subd. (b).) For liability
purposes, a specific injury happens on the date of the alleged incident or exposure (§ 5411) , meaning the workers ' compensation policy or excess policy triggered is the one in effect on that date. By contrast, a cumulative injury occurs when a worker becomes disabled and should reasonably know the disability was job

- related. (§ 5412.) Multiple employers can be liable for a cumulative injury. T he WCA extends liability to those employers who employ ed the injured worker during the year preceding the earlier of:13

(1) her date of injury under section 5412 , or (2) the last date the worker was employed in an occupation exposing her to the hazard . (§ 5500.5, subd. (a).) Knowles filed her first claim for disability benefits on May 12, 2003 , but continued to work at full capacity until February 6, 2004. Kemper ' s excess worker ' s compensation policy was in effect for the 12

- month period beginning July 2002, and Swiss Re ' s was in effect for the 12

- month peri od beginning July 2003. If Knowles suffered a specific injury on May 6, 2003, Kemper would bear sole responsibility for providing excess insurance coverage to JPA

. Once Kemper became insolvent in 2013, insolvency insurer CIGA would be obligated to pay if the remaining statutory requirements were met. (Ins. Code, §§ 1063.1, subd. (c)(1) −(13), 1063.2, subds. (g)

− (h).)
However , i f Knowles suffered a cumulative injury, CIGA suggests that the liability period would cover the 12 months preceding February 6, 2 004 , when she could no longer work at full capacity. In other words, a cumulative injury might trigger coverage under the Swiss Re policy.
2. The Superior Court Has Jurisdiction Over CIGA ' s Action

.

" As a creature of the Legislature, the [WCAB] has no pow ers beyond those conferred on it. " ( Victor Valley Transit Auth. v. Workers ' Comp. Appeals Bd. (2000) 83 Cal.App.4th 1068, 1072 ( Victor Valley ).) The WCA gives the WCAB exclusive jurisdiction over proceedings " [f]or the recovery of [workers ' ] compensation , or concerning any right or liability arising out of or incidental thereto. " (§ 5300, subd. (a).) The superior court and WCAB do not have concurrent jurisdiction over any given
action

— depending on the injuries claimed, one entity will lack jurisdiction to grant any14

relief whatsoever. ( La Jolla , supra , 9 Cal.4th at p. 35 .) " The only point of concurrent jurisdiction of the two tribunals is jurisdiction to determine jurisdiction; jurisdiction once determined is exclusive, not concurrent. " ( Ibid .) Relyin g on section 5300 , the trial court concluded the WCAB had exclusive jurisdiction to determine that Knowles suffered a cumulative, rather than specific, injury. As we explain, this was incorrect

.

" It is by now well established that the WCA ' s exclusivity p rovisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ' " collateral to or derivative of " ' such an injury. " ( King v. CompPartners , Inc. (2018) 5 Cal.5th 1039, 105 1 ( King ) ; Vacanti , supra , 24 Cal.4th at p. 811. ) Thus, our first step is to evaluate whether the alleged injury is collateral to or derivative of an injury compensable exclusively under the WCA . If it is, the cause of action may be barred; otherwise, it is not barred

. ( Vacanti , at p. 811 .) Here, there is no dispute that t he characterization of Knowles ' s injury is collateral to or derivative of injuries compensable under the WCA.
W e therefore proceed to the next step to evaluate " whether the alleged a cts or motives tha t establish the elements of the cause of action fall outside the risks encompassed within the compensation bargain. " ( Vacanti , supra , 24 Cal.4th at
pp. 811

− 812.) " Where the acts are ' a " normal " part of the employment relationship ' [cita tion], or workers ' compensation claims process [citation], or where the motive behind these acts does not violate a ' fundamental policy of this state ' [citation] , then the cause of action is barred. " ( Id. at p. 812.) By contrast, a ctions to recover econo mic or contract damages incurred independent of a workplace injury are not barred

. ( Id. at p. 814.)15

This second step is where the court erred . Although perhaps prompted by Knowles ' s workplace injuries, CIGA ' s coverage dispute falls " outside the risks

e ncompassed within the compensation bargain. " ( Vacanti , supra , 24 Cal.4th at p. 812.) The question of whether a workers ' compensation claim against a self

- insured employer is covered by the employer ' s excess insurance policy is not a " ' " normal " part of
the

. . . workers ' compensation claims process. ' " ( Ibid. ) CIGA ' s action can have no legal effect on Knowles ' s ability to recover workers ' compensation. As a self

- insured employer, t he onus is on the District to provide " compensation " to Knowles. ( § 37 00 [employers must " secure the payment of compensation " by purchasing workers ' compensat ion insurance or self

- insuring].) " ' Compensation '

. . . includes every benefit or payment conferred by this division [Workers ' Compensation and Insurance] upon an inj ured employee

. . . , without regard to negligence. " (§ 3207 , italics added.) As an excess insurer, Kemper was not obligated to provide compensation to Knowles; it merely had a contractual obligation to indemnify JPA for certain claims. CIGA ' s action on ly determines who

— as between the District/JPA, CIGA, and another excess insurer

— bears
the ultimate cost of the District ' s compensation obligation . Accordingly, it does not fall within the WCAB ' s exclusive jurisdiction. Although California courts have n ot decided this precise question, cases addressing the scope of the WCAB ' s exclusive jurisdiction are instructive. Courts have rejected exclusive WCAB jurisdiction where the action does not implicate the payment of benefits to the injured worker

. For ins tance in Victor Valley , supra , 83 Cal.App.4th 1068, the WCAB determined that a public transit employee of a joint powers authority was16

entitled to certain workers ' compensation benefits . Afterwards , one city sought
contribution from another municipal memb er of the authority to recover some of the benefit s paid to the injured worker. The WCAB interpreted the cities ' respective rights and obligations pursuant to the ir joint powers agreement ( id. at pp. 1070

− 1071) , but t he appellate court reversed, concludin g the WCAB lacked jurisdiction to do so . T he cities ' dispute had no bearing on the worker ' s receipt of benefits, since the prior WCAB award ensured that someone would pay . ( Id. at pp. 1073, 1076 .) Similarly in U nited States Fidelity and Guaranty Co. v. Lee Investments , LLC (9th Cir. 2011) 641 F.3d 1126 , the Ninth Circuit applying California law determined that courts, not the WCAB, had jurisdiction over an insurer ' s action against an employer to rescind its workers ' compensation insurance policy as void. ( Id. at p. 1134.) W hile perhaps prompted by the workplace accident, the action affected only who had to pay, not whether the employee could recover workers ' compensation . ( Id. at pp. 1134

− 1135.) By contrast, where a dispute implicates a normal part of the workers ' compensation claims process, the WCAB

— and not the court

— has exclusive jurisdiction. (See King , supra , 5 Cal.5th at p. 1053 [ worker ' s action against employer for errors in utilization review process required under the WCA ] ; Vacanti , supra , 24 Cal.4th at p. 820 [ m edical providers ' action against insurer for mishandling workers ' compensation lien claims].) Taken together, the cases support a conclusion here that the superior court has jurisdiction to make a factual finding necessary to determ ine excess insurance coverage. We find further support in a WCAB panel decision , which we consider for its persuasive value. ( S ee Cannon v. Industrial Acc i . Comm

. (1959) 53 Cal.2d 17, 22

. ) In17

Millman v. Contra Costa County , the WCAB addressed the flip s ide of th e jurisdictional
issue here

. ( ( Dec. 5, 2013 , WCK 0005092 ) 2013 Cal.Wrk

. Comp. P.D. Lexis 615 ( Millman )

. ) A s elf

- insured employer had asked the WCAB to decide whether certain expenses were covered under its excess insurance policy. The WCAB concl uded it lacked jurisdiction because " this particular dispute is a contract dispute between an insurer and insured rather than a workers ' compensation insurance coverage dispute

. " ( Id. at p. * 3 .) As the panel explained, although many self

- insured employer s purchase excess insurance, " excess insurance is not a method of securing compensation " pursuant to section 3700. ( Millman , at p. * 4

. ) E xcess insurers do not assume primary and direct liability for the payment of compensation, whereas workers ' compensat ion policies must contain a clause to that effect. ( Id. at pp. *5

– *6 ; Ins. Code, § 11651.) Unlike workers ' compensation insurers, excess insurers " may not be substituted for the self

- insured employer as the sole entity that may be held liable under Labor Code section 3755. " ( Millman , at p. * 6 .) Likewise, Department of Insurance " regulations affecting excess insurance are much less extensive " than regulations for primary workers ' compensation
insurance. ( Ibid. ) Although the panel concluded it lacked ju risdiction, it advised the parties they could " seek declaratory relief in civil court. " ( Id. at p. *7. ) Millman ' s conclusion makes sense

. Under a primary workers ' compensation insurance policy, " ' the insurer agrees to pay all workers ' compensation and other benefits that the employer must legally provide to covered employees who are occupationally injured or disabled. ' " ( La Jolla , supra , 9 Cal.4th at p. 36.) An employer who " secure[s] the payment of compensation " (§ 3700) through workers ' compensatio n insurance is18

relieved from liability and dismissed from WCAB proceedings once its workers ' compensation carrier assumes liability. (§§ 3755, 3757.) Excess insurance works differently. A n excess workers ' compensation policy indemnifies a self

- insured employer for claims exceeding a certain retention , thereby limiting a self

- insured ' s potential exposure. Policy limit s to excess coverage do not expose the injured worker to the risk of nonrecovery

— " coverage is had through [employer ' s] being self

- insured . The only risk is to [the employer] as to how much it can minimize its losses for benefits it is required to pay

. " ( General Reinsurance Corp. v. St. Jude Hospital (2003 ) 107 Cal.App.4th 1097, 1109.) We agree with Millman that a
coverage dispute between a self

- insured employer and its excess workers ' compensation
carrier is essentially a contract dispute between insurer and insured. ( Millman , supra , 2013 Cal.Wrk.Comp. P.D. Lexis 615 at p. *3 .) Such an action falls outside the compensation bargain and i s not a part of the normal workers ' compensation claims process. Accordingly, CIGA ' s action does not trigger exclusive jurisdiction of the WCAB pursuant to section 5300

. 3
Consistent with Millman , f ederal courts applying California law have rejected
exclu sive WCAB jurisdiction on similar facts

. The BART cases are particularly helpful

.

3 Defendants construe Millman as addressing a narrow question of whether the WCAB had jurisdiction to decide whether certain utilization and bill review expenses were cov ered by an excess insurance policy. As we read it, both Millman and this action involve which forum has the power to consider an excess coverage dispute. Defendants contend Millman involved a "coverage dispute" whereas CIGA attempts to recharacterize Kno wles's injury. But CIGA's action is a coverage dispute, irrespective of the factual inquiry its resolution necessarily entails.19

A Bay Area Rapid Transit (BART) employee filed a multiple myeloma workers ' compensation claim before the WCAB. As a self

- insured employer, BART had purchased excess insura nce from General Reinsurance Corporation (GRC) to cover workers ' compensation claims exceeding a retention limit

. ( BART I , supra , 111 F.Supp.3d at p p . 1059

− 1060.) The parties initially disputed the employee ' s injury date , but ultimately signed a Compromi se and Release stipulating to a cumulative injury between 1990 and 1991 . This injury period triggered coverage under GRC ' s policy . ( Id. at p. 1062.) GRC initially made payments but then stopped and sought reimbursement. ( Id. at p. 1063.) B ART then sue d GRC for breach of contract. In phase one of trial , the court had to decide whether it had jurisdiction to make a factual finding as to the employee ' s date of injury inconsistent with the WCAB and , if it did, whether GRC was nevertheless bound by the WCA B ' s determination under principles of estoppel, waiver, or
laches . ( Id. at p. 1064.) Citing Millman , the district court concluded it had jurisdiction to revisit the date

of

- injury determination. S ection 5300 ' s exclusivity bar was " limited to claims in volving compensation to the employee. " ( BART I , supra , 111 F.Supp.3d at p. 1065.) A n excess insurance policy was not a workers ' compensation policy and therefore not subject to the workers ' compensation scheme. ( Ibid. ) The possibility that the court mi ght make a finding inconsistent with one already made by the WCAB did not deprive it of jurisdiction. ( Ibid. ) It was not reviewing any decision of the WCAB, and its ruling would not affect the WCAB ' s decision that BART, as a self

- insured employer, owed

c ompensation to its employee. ( Ibid. ) " Put simply, regardless of the case ' s outcome,20

BART will remain liable to [its employee] as a self

- insured employer even if it is determined that General Reinsurance is not the proper excess carrier because the date o f injury fell outside of the Policy period. " ( Ibid. ) Next, the district court conclude d that GRC was not otherwise bound by the
WCAB ' s date of injury determination under principles of collateral estoppel, equitable estoppel, waiver, or lache s. ( BART I , supra , 111 F.Supp.3d at p. 1067.) C ollateral estoppel might have applied had GRC been joined in the WCAB action , but absent joinder it lacked privity with BART so as to be bound . ( Id. at pp. 1068

− 1069, 1074.)
The Ninth Circuit affirmed

. 4 As it explai ned, e xcess insurer GRC did not challenge BART ' s liability as a self

- insured employe r to its injured worker . Nor did it challenge the amount of the award against BART. " Instead, GRC seeks to litigate a factual question that goes to coverage under its pol icy. It is not barred from doing so by the stipulation between BART and its employee or by the WCAB ' s finding in approving that agreement. " ( Bart II , supra , 726 F.App ' x. at p. 564.) Moreover, GRC could not otherwise be bound where it was not notified of the underlying proceeding until one week after BART ' s compromise and release had been approved by the WCAB. ( Ibid. )
BART I and BART II stand for the notion that a trial court has jurisdiction to make a factual finding underlying excess workers ' compensa tion coverage even if that finding is inconsistent with one made or approved by the WCAB. Central to this result is the

4 Although nonpublished and nonprecedential under Ninth Circuit rules (U.S. Cir. Ct. Rules (9th Cir.), rule 36

- 3(a)), we may r ely on BART II as persuasive authority. (See Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6.)21

nature of excess workers ' compensation insurance, compared to primary workers ' compensation insurance policies. Although the summary judgment motions in this case did not squarely address collateral estoppel, t he BART cases further stand for the notion that issue preclusion does not apply where an excess insurer takes no part in WCAB proceedings

. Defendants repeatedly assert that Kemp er " authorized " or " approved " the ir stipulation before the
WCAB

. As support, t hey cite solely to paragraph No. 8 of the declaration of JPA claims administrator Tammy Le: " On or about June 2, 2011, Kemper authorized settlement of the Claim pursuant to the proposed stipulation and award for an injury occurring on May 6, 2003. " But CIGA objected to this evidence on foundation and lack

- of

- personal

knowledge grounds, the court sustained the objection , and d efendants do not challenge the court ' s evidentiary ru ling. In short, here as in BART , there is no competent evidence that the excess insurer participated in the WCAB action so as to be bound by stipulated findings approved in an Award. We agree with BART I that successive litigation of foundational facts concerning a worker ' s injury i s " perhaps not optimal, and a situation to be avoided if possible. " ( BART
I , supra , 111 F.Supp.3d at p. 1065

. ) But under the present circumstances, the trial court
does not lack jurisdiction to decide the factual question u nderlying the excess coverage22

dispute , even if it reache s a finding contrary to the WCAB . ( Ibid. ) 5 Contrary to
defendants ' strenuous objection, CIGA ' s requested relief would not " modify the WCAB award " even if the court finds that Knowl es suffered a cumu lative injury

. Liberty , supra , 339 F.Supp.3d 1019 , a federal case involving respondent JPA , also supports our jurisdictional conclusion

. During a two

- year span, JPA purchased excess insurance first from Liberty Insurance Corporation and then from Wesco I nsurance Company . ( Id. at p. 1024.) Two school district employees had cumulative injuries spanning both coverage periods, each with their last date of exposure after Liberty ' s policy ended. ( Id. at pp. 1024

− 1025.) Liberty and Wesco initially agreed to allocate costs. Then Liberty stopped paying , saying its insurance policy excluded coverage where the workers ' last exposure occurred outside the policy period. ( Id. at pp. 1025

− 1026.) A contract dispute ensued between JPA, Liberty, and Wesco. ( Ibid. ) At summary judgment, Liberty pointed to its policy exclusion while Wesco argued Liberty ' s interpretation of its policy conflicted with statutory liability for cumulative injury claims under the WCA (§ 5500.5). ( Liberty , at pp. 1026

− 1027.) The court held in Liberty ' s favor. Citing BART I and Millman , it reasoned, " an excess policy is not a workers ' compensation policy and thus the provisions of Division Four [of the Labor Code]

5 CIGA argues the WCAB approved the parties' stipulation but "did not make a factual determination based on the evidence that [Knowles] suffered a specific injury." We assume without deciding that there is no meaningful difference between a factual determination made by the WCAB and a WCAB Award based on the parties' stipulations of fact.23

regulating workers ' compensation policies

— such as Section 5500.5

— do not apply. " ( Id. at p. 1029.)
As Liberty and BART I explain , there is an important distinction between employers who purchase primary workers ' compensation insurance and self

- insured employers who purchase excess workers ' compensation insurance. " As the self

- insu rer, the JPA is the party required to ' place itself in the position of a private insurer. ' [Citation.] The excess insurer, on the other hand, does not pay any worker ' s compensation benefits but rather reimburses the JPA after the JPA has paid those
benef its. " ( Liberty , supra , 339 F.Supp.3d at p. 1029.) Excess insurance is optional under the workers ' compensation scheme. (§ 3702.8, subd. (c)

. ) Whether Kemper ' s policy covers the claim does not affect the WCAB ' s determination that Knowles is entitled to compensation from the District for workplace injury, or the amount awarded for her permanent and temporary disabilit ies . Knowles will be compensated the same amount

even if the court finds in this action that she suffered a cumulative injury rather than a specific one. ( BART I

, supra , 111 F.Supp.3d at p. 1065.)
The trial court did not consider the nature of excess coverage when it reached a contrary result. Citing Western Growers , Ins. Co. v. Workers ' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227 , 234 , th e court believed injury characterization fell squarely within the WCAB ' s expertise. But the question of exclusive jurisdiction does not turn on the extent to which a particular factual inquiry lies within or outside of the WCAB ' s expertise. I nstead i t de pends on whether the claim being asserted implicates " the risks encompassed within the compensation bargain. " ( Vacanti , supra , 24 Cal.4th at p. 812.)24

Depending on the context, either the WCAB or the superior court is fully capable of determining whether an injury is specific or cumulative. Thus, in reviewing by writ a
WCAB decision , it is hardly surprising that the court in Western Growers would explain that the nature of an injury

— whether it is specific or cumulative

— was a question of fact for the WCAB to resolve in a dispute between the employee and primary insurer

. ( Western Growers , at pp. 234

– 235.) The case does not stand for the proposition that the WCAB has exclusive jurisdiction to decide the nature of an injury in every conceivable context in wh ich that factual question may arise.
The trial court further reasoned that BART I permitted litigation of the worker ' s injury date, not injury type. But t here is little distinction between the " date of injury "
determination in BART I and the " type of in jury " determination here. If the court were to decide that Knowles suffered a cumulative injury, that would determine the injury period and, in turn, the applicable excess insurance policy for purposes of evaluating CIGA ' s coverage obligation

. Whereas i n BART I the injury date directly determined which

excess policy applied , here the injury type determines the injury date, which in turn determines which excess policy applies

. T he effect is the same. We likewise reject defendants ' argument that the BAR T I court " was merely completing the equation " by deciding a question left open by the WCAB. Both this action and BART I address whether a court has the power to decide a factual issue necessary to de termine excess workers ' compensation insurance coverage , even if its finding differ s from the WCAB ' s . During the WCAB proceedings in BART I , the parties stipulated to an injury date that triggered GRC ' s excess coverage, but the court was not25

without jurisdiction to find a n injury date different from that appr oved by the WCAB. ( BART I , supra , 111 F.Supp.3d at p. 1065.) A similar conclusion follows here. Nor are we persuaded by the trial court ' s reasoning that " BART was a coverage dispute based on the terms of the policy " whereas " CIGA ' s obligations are based on
statute. " A prerequisite for coverage under the CIGA statute is a determination that the obligation is covered by the insolvent insurer ' s policy. (Ins. Code, § 1063.1, subd. (c)(1)(A).) CIGA disputes the extent of Kemper ' s coverage obligation . It a sserts that Knowles suffered a cumulative injury, triggering coverage under Swiss Re ' s policy. The
fact ual prerequisite for excess coverage here is analogous to that in BART I

. In short , CIGA ' s action for declaratory relief is not subject to the WCA ' s

ex clusivity bar

. The WCAB ' s exclusive jurisdiction over actions involving " the recovery of compensation, or concerning any right or liability arising out of or incidental thereto " (§ 5300, subd. (a)) does not extend to contract

- based disputes between a self

- insured employer and its excess carrier ( or that carrier ' s insolvency insurer) . The court is not without jurisdiction to make a factual determination that Knowles suffered a cumulative injury, even if its finding contradicts a stipulated fact approved by the WCAB. Def endants ' policy arguments do not compel a different result. First, they claim
that allowing CIGA to litigate Knowles ' s injury type would result in inconsistent rulings between the WCAB and the superior court and interfere with Knowles ' s cla im rights. But

a s noted, Knowles is entitled to compensation from the District, a lawfully self

- insured employer, irrespective of defendants ' indemnificatio n rights. Second, they argue their
WCAB stipulation might prevent recovery from other excess insur ers . Accepting this26

premise for the sake of argument , defendants brought this predicament on themselves by stipulating to a specific injury before the WCAB . T he possibility that their improvidence might leave them without other excess insurance coverage does not change the legal parameters of CIGA ' s statutory obligation

. (See Parkwoods v. Community Assn. v. Cal.
Ins. Guarantee Assn. (2006) 141 Cal.App.4th 1362, 1368 [insured could not " bootstrap
its claim against CIGA by releasing its right to recover un der an available policy and claiming that as a result there is no other coverage " ] ; Denny ' s , supra , 104 Cal.App.4th at
p. 1442 [CIGA was not created to protect self

- insured employers].) Finally, defendants suggest that allowing CIGA to litigate whether Kn owles suffered a cumulative injury will " overrun " courts with coverage disputes by CIGA,

" even where coverage was never at issue and payments [by the insolvent insurer] had previously been made on claims. " Defendants overstate the risk

— our ruling only imp licates CIGA ' s coverage as to excess workers ' compensation carriers . And collateral estoppel could apply where a self

- insured employer joins its excess insurer or CIGA in WCAB proceedings . ( BART I , supra , 111 F.Supp.3d at p. 1074 .) We share the BART I

c ourt ' s view that although perhaps not optimal, the superior court is not without jurisdiction to decide a factual issue underpinning CIGA ' s coverage obligation

. 3

. Effect of Jurisdictional Ruling The trial court concluded it lacked jurisdiction to find Kn owles suffered a cumulative injury . Because it believed exclusive jurisdiction to make that determination rested with the WCAB, it entered judgment in defendants ' favor on the cross

- complaint and ordered CIGA to reimburse defendants $129,836 .91 plus costs

.27

CIGA argues this was error. Even if the court lacked jurisdiction to find Knowles suffered a cumulative injury, CIGA argues defendants ' reimbursement request was not a

" covered claim " because : (1) it is not bound by a stipulated judgment against Kempe r ( Ins. Code, § 1063.2, subd. (g)); (2) " other insurance " was available from excess insurer Swiss Re (Ins. Code, § 1063.1, subd. (c)(9)) ; and (3) there h as never been a determination of coverage under Kemper ' s policy (Ins. Code, § 1063.1, subd. (c)(1))

. Given our jurisdictional ruling, we do not reach these contentions. 6 Defendants moved for summary judgment; CIGA did not. Our conclusion that the court has jurisdiction to make a factual determination regarding injury type leaves triable issue s to resol ve. T he parties may proceed to litigate whether Knowles suffered a specific or cumulative injury, and the court may make a factual finding on this question to reach a
final coverage determination.

6 Nor do we reach CIGA's arguments that the super ior court did not comply with Code of Civil Procedure, section 437c, subdivision (g) or provide a sufficient statement of reason when it entered judgment for defendants on their cross

- complaint for reimbursement.28 DISPOSITION The judgment is reversed . The matter is rema nded to the trial court with direct ions to vacate its order granting summary judgment and enter a new order denying
defendants ' motions on both the complaint and cross

- complaint . CIGA is entitled to recover its costs on appeal.

DATO, J.
WE CONCUR:

McCONNELL, P. J.

O ' ROURKE, J.