WCDefenseCA

Word around the proverbial water cooler has it that Judge Gene Lam, of the San Francisco Board, is heading to Oakland to take over as presiding judge (effective April 16, 2012).  No doubt Judge Lam will be greeted every morning by the charming sight of Oakland’s finest protestors “occupying” Frank H. Ogawa Plaza (just yesterday morning, your ever-busy blogger witnessed city workers cleaning up the latest “art work” left behind by these fine, young people.)

In any case, WCDefenseCA congratulates Judge Lam on his new post and wishes him a smooth transition and a productive stay.

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.

California workers’ compensation does not often get attention from the world at large.  Most people work, some people get injured, and the lawyers usually fight it out – your typical newspaper or anchor will not discuss workers’ compensation because of its narrow application.  But then, something happens now and again, which shines a flood-light onto the swamp, and sends all of workers’ compensation’s dirty little secrets scurrying for cover.

One such light-bringing event was the front-page story of the Wall Street Journal (this one is behind a pay-wall), which covered, at length, the extent to which small hospitals go to perform expensive and often unnecessary treatments, using an army of lien-representatives to exploit the weakness of California’s workers’ compensation system.  Another is the problem plaguing professional sports.  Your humble blogger had the privilege of summarizing the problem for Lockout Lowdown, a sports law blog, some time ago.

The problem faced by professional sports teams is very real – players will have a lengthy career of several years, play as little as a single game in California, and then file a claim for a career-long cumulative trauma, seeking California benefits.  Often enough, the player’s only contact with California is the one game.  This was the case with Cleveland Crosby, who played between 1980 and 1985, and played a single game in California in 1982.

In Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied), the WCAB held that, because Cleveland Crosby played a game in California while employed by the Baltimore Colts, California had jurisdiction over the Colts for Applicants cumulative trauma injury.

Defendant fought back, naively invoking common sense and reason before bringing out the big guns of Labor Code section 3600.5(b). But Insurance Fund didn’t have the right ammunition: it did not provide certification of reciprocity with California, and the insurance coverage did not appear to cover out-of-state injuries.  Because the defendant in this case failed to prove reciprocity or extra-territorial coverage, applicant prevailed.

But don’t lose hope! Come back tomorrow for Part 2 of 3…

Yesterday, your fearless blogger got on his soapblog and ranted about the reasons why local rules are an evil reality of California Workers’ Compensation practice.  Rather than using this blog to vent my professional frustration upon my poor, unsuspecting readers, this was actually in the context of the greater issue of venue – why it matters, and why it’s worth fighting for.

Now, let’s roll up our sleeves and look at the details of how venue is determined.

Venue is set by statute under Labor Code section 5501.5, at least in terms of where an application can be filed.  Subsection (a) holds that an application may be filed in the county where (1) the injured employee resides at the time of filing; (2) where the injury allegedly occurred, or, in cases of cumulative trauma, where the last alleged injurious exposure occurred; or (3) in the county where the applicant’s attorney maintains his or her principal place of business.

Note that, right out of the gate, the applicant has near total control of venue – by moving, even for a few months in order to establish proper venue, applicant can control the venue.  When my cynical imagination has full run of my waking state, I picture a sinister applicant’s attorney advising the injured worker to move to county X for a few months, file an application, and then move back – guaranteeing a favorable result!

Fortunately, subsection (c) allows the defendant to object, to venue based on the attorney’s place of business alone, and the statute requires venue to be changed to option (1) or (2), the residence or location of injury, so long as the objection is made within 30 days of receipt of the Notice of Application (California Code of Regulations § 10410).

But what if there is no Board office available in the county where applicant resides or was allegedly injured?  For example, if an applicant lives and works in San Mateo, San Mateo County, and sustained her injury there – where is she to file?

Subsection (d) requires the application to be filed in the nearest venue to that county, in this case probably San Jose.

It is important to note that section 5501.5 is not applicable only within the discretion of the Board – the law is mandatory!  (See Domino’s Pizza, insured by State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (Don Kerr).

So applicant has filed an application at the appropriate office, that office now has venue.  (California Code of Regulations § 10408).  And now that there is a proper venue, either party may file a petition to change venue under Labor Code section 5501.6, including for the convenience of witnesses.  Either party has the right to object within 10 days of the petition being made (California Code of Regulations § 10411).  My more steadfast readers will know that, unlike witnesses, the convenience of applicant’s attorney is irrelevant.

The venue of a workers’ compensation case might seem like a relatively unimportant issue for someone outside the workers’ compensation industry.  After all, the case-law, labor code and California Code of Regulations are all state-wide in application right?  Sadly, if the Easter Bunny, Santa Claus, and state-wide uniformity of workers’ compensation law were all helping you paint your house, you would be engaged in a solo project.  All three are, of course, figments of the imagination.

If you are not familiar with the sad reality of “local rules,” I am sorry to be the one to burst this proverbial bubble for you.  Each venue has its own rules as to procedure, filing deadlines, etc.  For example, the accepted custom at Fresno is to have all exhibits filed and served twenty days before the trial.  If there are more than twenty days left until trial, the other side does not want them, and neither does the Board.

On the other hand if you appear for a Mandatory Settlement Conference in Oakland without your exhibits (and an EAMS separator sheet for each one), with copies for the applicant, lien claimant, Board, and curious strangers passing by, you’re not going to have a lot of material to work with come trial.

Just about every administrative director, including the recently appointed Rosa Moran, has sworn to stamp out local rules for the various boards. Although the Workers’ Compensation Community is readily giving of its best wishes, its confidence in such a matter is considerably more shy and reserved.

Aside from local rules, issues such as cost of travel, reputation of judges (sadly, some Workers’ Compensation Judges are known to be more receptive to one side than the other), and availability of witnesses all play into the question of whether it is worthwhile for a party to fight for a change in venue.

So, now that you are thoroughly persuaded that venue does matter, come back tomorrow morning for the procedure and law behind it all.

In California Workers’ Compensation, what constitutes good cause to grant applicant’s change of venue motion?  This is a question that was touched upon in the recent panel decision French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.  However, the answer one can walk away with is not what is, but rather what is not, good cause.

The skinny:  The convenience of applicant’s attorney is not sufficient good cause to change the venue of a case.

Here are the essential facts:  Applicant filed an application for adjudication of claim, and later an amended application, and in both cases consented to venue at Marina del Rey.  Applicant then switched his attorney to one with an office in Long Beach, and moved to South Carolina.  His attorney filed a motion to change the venue to Long Beach.

Defendant objected, asserting that the place of injury and the place of business for its witnesses were both in Burbank.  As you can imagine, the Workers’ Compensation Judge granted applicant’s motion.  (Somehow, the convenience of defendant’s witnesses, or even defendant’s own attorneys, did not seem to matter to the WCJ).

After the matter was set for a Mandatory Settlement Conference, defendant filed a petition for reconsideration, arguing that no order changing venue had ever been received and that there are no valid grounds to change the venue.

As a side-note, because defendant’s grievance was an interim order, the order changing venue, the proper course of action was a petition for a removal, not a petition for reconsideration.

The Workers’ Compensation Appeals Board, denied the petition for reconsideration, granted the petition for removal, and rescinded the order changing venue.

In other words, the convenience of a new applicant’s attorney is not proper grounds for changing venue.

The WCAB also noted that the WCJ did not make any findings as to the good cause for the change of venue, and that the WCJ erroneously placed the burden of showing good cause not to change the venue on defendant.