WCDefenseCA

Sweet Golden Falcons of Justice!

Last week, California put aside its workers’ compensation squabbles and focused instead on some non-workers’ compensation gobbles – turkey!  Thanksgiving tables were set, football was played and watched, and a fun time was had by all.  No one realized it, but football became more possible because of a small victory against those who would use workers’ compensation in California to make football unplayable (or at least more expensive).

My beloved readers (for whom this humble blogger gives endless thanks all year round) will recall an earlier post discussing the National Football League and the Falcons’ efforts to sue former players to force them to abandon their California workers’ compensation claims and bring them instead in Georgia, as per their players’ agreements.

It appears, now, that U.S. District Judge Thomas Thrash found that the players cannot bring their claim in California, and must instead pursue their rights under Georgia’s workers’ compensation law in Georgia.  Ain’t that a peach of a ruling?  Judge Thrash “rejected the players’ claim that the award violated California public policy, noting that the players never proved they were explicitly injured in California, where they had played only two percent of their Falcons games.”  

So what does that mean for your weekend?  Many professional sports franchises will be able to reduce costs by avoiding the bottomless pit of workers’ compensation liability found in California.  Additionally, if you’re an employer sending your employee to California for business (meetings, conferences, recruitment events, etc.) perhaps you can seek to duplicate the success of the NFL and the Falcons by including a workers’ compensation forum selection clause in your employment contract.

As for California, the victory is bitter-sweet.  On the one hand, the workers’ compensation system is overloaded as it is, and there is no need for more applicants, more cases, and more delays in access to the trial calendar.  On the other hand, attorneys on both sides of the divide are sad to see less business stroll through their doors.

Some of your humble blogger’s readers really like football.  And some are interested in workers’ compensation.  For that narrow sliver of overlap, I offer the following post, which relates the story of the recent writ denied case of Michael Barrow v. Dallas Cowboys Football Club.  The issue raised in that case was whether California had jurisdiction of Mr. Barrow’s claim of cumulative trauma while playing for various football teams, allegedly sustained from 1993 to 2006.  Interestingly, Mr. Barrow had never played a single game in California, and so could not claim jurisdiction on those grounds.

So, what was Mr. Barrow’s theory?  How was he hoping to “score a touchdown” against his employers?  (Get it?  Because it’s a story about football?)  California sets its jurisdiction for out-of-state injuries based on where the contract of hire was completed.  (See Labor Code sections 3600.5(a) and 5305).  Therefore, an employee who signs his employment contract in California, or orally accepts the terms of employment over the phone while physically in California, can later invoke California jurisdiction.

But Mr. Barrow didn’t live in California, nor was he in California when he signed any of his contracts.  His theory relied on his attorney and agent, who had an office in Los Angeles.  This attorney negotiated all of Mr. Barrow’s contracts and communicated their terms to him by phone.  When Mr. Barrow became inclined to accept, he would tell his attorney, who would then call the team office and let them know.  Mr. Barrow was then flown out to that office and signed the contract in person.

Isn’t that enough?  After all, the lawyer was in California and there were phone calls made and shouldn’t California be able to give a proverbial arm and an equally proverbial leg from the football teams to Mr. Barrow?  After all, he’s suffered so much, just look at this video of him suffering as he takes what meager employment he can due to his severe injuries…

Well, the workers’ compensation Judge agreed.  The WCJ found that, in communicating his intent to accept to his lawyer, who was in California, and then having his lawyer communicate this intent to the team with which Mr. Barrow was signing on, California jurisdiction was activated.

The Workers’ Compensation Appeals Board, however, was not persuaded.  Although the WCAB recognized that California has jurisdiction over injuries sustained out of an employment contract accepted within the state, this requires the presentation of “sufficient evidence to show that the contract was actually accepted, and thus became binding, within California’s borders.”

The fact that, after all was said and done, applicant still had to fly out to and sign a contract, proves fatal to any argument in support of California’s jurisdiction.  The employment contract became binding somewhere other than California.

So, what lesson can employers take away from this case?  It doesn’t matter if you’re a professional sports team or a hospital or a widget factory – if you’re interested in hiring someone who resides in California for work outside of California, make sure they have to travel to the nearest town in Nevada, Arizona, or Oregon to sign their contract of employment.  It might sound silly to waste a plane ticket in our modern world of scanners, e-mail, and genetically engineered (and delicious) carrier pigeons – but it’s worth it.

California is one of the most expensive states when it comes to workers’ compensation, and the cost of litigation alone (not to mention medicals and permanent disability indemnity) will quickly outpace this simple precaution.

Are you sick of NFL related posts on WCDefenseCA yet?  Your humble blogger sincerely hopes you’re not, because he has another one for you.  This time, however, the proverbial cross-hairs are on an applicant’s attorney, Mark L. Floyd of St. Louis, Connecticut.  Here is a video the firm apparently put out for Youtube, although the website appears to be down:

So, what could former St. Louis Rams linebacker Jamie Duncan have against Mark Floyd, Esq.?  Well, according to this article from CourthouseNews.com, in 2007, Mr. Floyd advised Mr.  Duncan to sign a settlement for $1,000 which included a waiver of future medical benefits, in a claim filed in Missouri.  (Thanks to KatkeRisk for the article.)

However, when Mr. Duncan retained a California attorney, the California attorney pursued claims for cumulative trauma and reached a settlement of $300,000 for all claims including future medical treatment.  The Rams then realized that a settlement agreement had already been reached in Missouri in 2007.  The parties ultimately settled the California claims for $45,000.

The civil complaint alleges that Mr. Floyd should have explored the option of filing a claim in California.

As if all the other stories on this point were not enough, the threat of being sued by former clients will serve as the drop of blood in the water – applicant’s attorneys from sea to shining sea are going to be going through their rolodex for that classmate from law school who headed out West so long as their client has ever set foot in California.

And you thought the clerks at the Board were busy already…

Today’s blog post is appropriately started with the words of one of America’s most profound and provocative modern poets – Shawn Corey Carter (also known as the rapper Jay-Z):

If you’re having cornerback problems, I feel bad for you son; I got 99 problems, but work comp. ain’t one.

Professional football has once again tackled (get it? Tackled? Football?) California workers’ compensation issues.  The latest claim to fall off the Ridiculous Tree and hit every branch on the way down is that of Michael Jameson v. Cleveland Browns.

Michael Jameson is a former cornerback who played three seasons for the Cleveland Browns (2001-2003) after playing college football for Texas A&M University.  As the names “Cleveland” and “Texas” suggest, Jameson had not been employed in California until he played one game here for the Browns.  This was the only game in his career that took place in California.  Applicant claimed that his career-wide cumulative trauma should be adjudicated under California law by a California WC

This topic may sound familiar as it was the subject of a 3-part post on California Workers’ Compensation Appeals Board jurisdiction over visiting employees.

The workers’ compensation Judge ruled that California did have jurisdiction over the matter because Labor Code section 3600.5(b) does not apply.  The WCJ found that the defense had not provided admissible evidence with respect to Ohio’s laws proving that applicant had an available claim in Ohio.

Your humble blogger’s favorite quote from the WCJ? “Since the applicant played in that game, and paid California taxes, the California Courts should be protective of California taxpayers and extend their jurisdiction to them to protect their rights as given to them by the California Legislature.” Certainly, in other cases, this WCJ and all WCJs are very concerned with those other taxpayers, the employers, who undertake payroll taxes, business “licenses,” which are, of course, taxes, and countless other fees and extortions to ensure the pay and pension of California’s public servants. 

The defense attorney had cited Ohio cases and statutes, but the WCJ found that those citations were in the attorney’s brief and, therefore, were not “evidence.”  In all fairness, this is true – cases are not evidence or facts, but law.

On review, the WCAB granted reconsideration, ordering the WCJ to allow the parties to present additional evidence both as to the extent that the employer’s self-insurance covers out-of-state injuries and the law in Ohio.   It appears that it may be necessary for out-of-state employers to print out cases and statutes, mark them as exhibits, and move them into evidence.  Hopefully, the same rule will not one date apply to California case-law and statutes as well.

California is home to an impressive array of professional sports teams.  The list goes on and on of the phalanx formed by the Golden State.  Look on our works, ye Mighty, and despair!  And know this – regardless of what happens on the field, the doom of your team shall be had in our workers’ compensation courts!

Previously, your diligent blogger had occasion to cover that point in space where professional sports and California workers’ compensation intersect.  Naturally – there’s no resolution yet as to how to avoid having California squeeze employers for the alleged injuries of their California-visiting employees.

It appears, however, that the Atlanta Falcons are not going to wait for California to develop her self-restraint:  moving with the National Football League, the Falcons are suing former players to force them to litigate workers’ compensation cases in Georgia rather than in California.

An arbitrator in Georgia, much like an arbitrator in Kansas, held that the players must abandon their California cases and pursue the cases in their employer’s state.  The Falcons and the NFL are suing to get a federal judge to order the players to abide by the arbitration ruling.  The arm of the federal government has grown long indeed if it can reach from Georgia to California.

I guess we’ll have to wait and see what happens – but this may set precedent for non-professional sports cases as well.  Perhaps employment contracts can include clauses requiring workers’ compensation claims to be brought in the employer’s state, and then injuries sustained at conferences and training seminars can be dealt with appropriately.

When WCDefenseCA knows more… so will you.

So by this point, you’ve read Parts 1 and 2 of this article.  You’ve laughed, you’ve cried, and you’ve decided not to give up on doing business in or with California, and also to stop sending your fragile blogger e-mails accusing me of actively trying to depress you.

So what can you, the employer, insurer, or the self-insured employer do to keep your liability down when you send your employees into California?  For starters, either purchase a California workers’ compensation insurance policy or make sure your current policy covers employees when they are out of the state.  Next, ask your attorney to secure a certificate from your state regarding its workers’ compensation reciprocity laws with California.

And what do you do if your state doesn’t have reciprocity or similar laws?  Lobby, and get them passed.  In 2011, Florida adopted House Bill 723, establishing reciprocity laws.  Michigan followed suit later that year with House Bill 5002.  If your state does not have a reciprocity law, perhaps some lobbying dollars spent now can save workers’ compensation dollars in the future.

Kansas has taken another approach.  A recent arbitration ruling in a case between the Kansas City Chiefs and the NFL Players Association held that Chiefs players must bring their workers’ compensation claims in Kansas, ordering the players to abandon their California cases.

The basis of this ruling appears to be the contract terms between the players and the team.  From noted sports-law blogger Daniel J. Friedman, of LockoutLowdown:

“Article 41 of the newly ratified NFL CBA encompasses the NFL and NFLPA’s ‘Worker Compensation’ plan.  As part of this agreement, under Art. 41, Sec. 5 states ‘The parties shall immediately establish a joint committee that will make good faith efforts to negotiate a possible California Workers’ compensation alternative dispute resolution program on a trial basis (i.e., carve out).’  However, Sec. 6 Reservation of Rights states ‘The parties shall retain the positions they held prior to this Agreement with respect to all existing litigation and arbitration involving workers’ compensation issues, including without limitation, the federal and state courses in California (Titans), Illinois (Bears) and New York (Mawae, Harvey) regarding offset issues or choice of law and forum provisions contained in NFL Player Contracts, and nothing in this Article shall affect positions taken in any such pending litigation.’    I do not think that the carve out provision has been agreed to yet but the resolution in this case likely tilts the balance of power back to the League’s favor as they continue to make ‘good faith efforts’ in coming to an agreement related to carve-out.  I would not be surprised if the players in this situation appeal.  However, because this was an arbitration, it will be very difficult to have the ruling overturned unless they can prove their was an abuse of process.”

But, given the fact that California regards contract terms waiving access to California’s workers’ compensation system to be unenforceable, it remains to be seen how effective this approach will prove.

The State of Oregon has put together a list of the reciprocity laws of various states.  You can review it here.  Your humble blogger does gently suggest you verify for yourself any citations found on this website – I certainly have not done so and can not make any claims as to its accuracy or current status.

So, will this fearless blogger, cumulatively traumatized by California’s workers’ compensation system, be seeing you in the Golden State anytime soon?

Yesterday we discussed the problem facing professional sports and California games – players seek California benefits after playing in California a few times as part of a multi-season career.  This is a problem for any business that has prices reflecting non-California workers’ compensation costs.

This problem doesn’t only apply to professional athletes – they just get all the attention.  The same law applies to traveling non-athlete employees.  California hosts conferences.  California hosts training seminars.  California is just a nice place to visit.  And often enough, if you’re looking for skilled talent, California can be a great place to send your agents to do some recruiting.

But while your employees are conferencing, training, visiting, or recruiting, they’re exposing you to liability under California’s workers’ compensation system.  Are you prepared to pay Golden State rates after a lifetime of reasonable prices?  Maybe you don’t have to.

Your hypnotically eloquent blogger may have worked you into a frenzy over the exploitation of employers and insurers nationwide by one-time California visits and the effect of subjecting non-California defendants to California workers’ compensation jurisdiction.

Put down the torches and pitchforks, take apart the guillotine, and please, please, please, stop holding your formerly favorite football star or conference speaker hostage – I assure you there is a better way!

California does jump the gun on claiming jurisdiction as often as possible for workers’ compensation matters, but Labor Code section 3600.5(b) provides a reprieve.  As the law holds, California will not claim jurisdiction over a non-California employee injured in California, even if that injury is part of a cumulative trauma, if the following conditions are met:

1. The employee is only “temporarily” in California;
2. The employee is covered by extra-territorial insurance (meaning the policy applies to the worker even when he or she is out of the state in which he or she normally works);
3. The laws of the state where the employee is normally employed are “similar” to those of California; and
4. The state where the employee is normally employed has a reciprocity rule with California.  In other words, California keeps its hands off state X, and state X keeps its hands of California employees injured in state X.

In an example contrary to the case mentioned in yesterday’s post, the recent panel opinion in the case of Vaughn Booker v. Cincinnati Bengals held that California did not have jurisdiction over a case in which Vaughn Booker played one game out of 48 in California.

Mr. Booker sought to invoke California’s workers’ compensation system to adjudicate his cumulative trauma claim.  But the Bengals had done their homework, and the WCAB held that (1) applicant only temporarily worked in California; (2) Ohio and California have “similar” workers’ compensation laws; (3) Ohio’s laws cover applicant while he is working in California; and (4)Ohio has reciprocity with California in accordance with section 3600.5(b).

In other words, the Bengals escape to their home territory with their stripes very much intact.

So what can you do other than boycotting the State of California?  Unless you’re willing to give up on medicinal marijuana, body-builder governors, and the nation’s largest concentration of happy cows, I suggest you come back tomorrow for Part 3 of 3.

The Court of Appeal recently denied an applicant’s petition for a writ of review in a case primarily dealing with the Workers’ Compensation Appeals Board’s 5-year jurisdictional limit.

Essentially, applicant filed a petition to reopen for new and further disability a few months shy (54 days) of five years past his date of injury.  The Agreed Medical Evaluator found that applicant had remained permanent and stationary.

Applicant then underwent (industrial) back surgery in November of 2009, and defendant provided temporary disability benefits for roughly four months, before stopping on the grounds that applicant was not temporarily disabled at the time the petition was filed.

The issue proceeded to trial and the Workers’ Compensation Judge found that applicant was entitled to temporary disability benefits from the date of his surgery through the date of the trial (and ongoing).

Following defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board found that there is no authority to award temporary disability for a period beginning after the five-year period has expired, even if a petition to reopen was timely filed.

In other words, if applicant does not begin a period of temporary disability within five years of his or her injury, no more TD will ever be award.  Not a groundbreaking finding, of course, but a useful tidbit of knowledge to keep in mind when facing those pesky petitions to reopen.

The writ denied case?  Gregory McBee v. Workers’ Compensation Appeals Board.

UPDATE (6/23/11):  The bill has been signed and is now law.  Will this signal a trend that other states will follow?  Only time will tell.

***

It appears that Florida might be riding to the rescue to ease some of the burden on California’s Workers’ Compensation system.  While taking a break from hunting alligators and providing the single most popular way of getting out of serving on a criminal case jury (trust me, just tell the judge or prosecutor that you watch CSI: Miami and you’ll be home in time for the intro sequence), the Florida legislature has presented a bill for Governor Rick Scott’s signature.

This new bill would require all employees of Florida companies injured while working  for the employer (temporarily) in another state to press their claims in Florida and under Florida’s Workers’ Compensation laws.

Why would someone from Florida want to have their Workers’ Compensation claim adjudicated under the laws of another state, such as California?  To put it gently, California is somewhat more generous with employers’/insurers’ coffers, than many of the other states, Florida included.

If Governor Scott signs this bill, claims ranging from boredom-induced psyche injuries for visiting convention attendees all the way to training and game injuries (fantasy league pride-stinging included) for professional football and hockey players will have their claims adjudicated in their home states, where their employers and their employer’s insurance companies can retain counsel with previously negotiated and volume-based reduced hourly rates and keep the costs of adjusting the claim to a minimum based on already-possessed knowledge and expertise.

As a California defense attorney, I hate to see less business walk through my doors, especially business glowing with Florida tans and generous with Disney World tickets.  But at the same time, I would be glad to see a less cluttered and overburdened calendar down at the Board, and I am also happy to see employers treated fairly within their own state.  Do I dare dream that California’s will one day experience the same?

In the event that Governor Scott doesn’t sign this bill, or some angry mob of applicant’s attorneys threatens to boycott Florida Orange Juice, I will still happily help any out-of-state defendants run the gauntlet of California’s Workers’ Compensation system.