WCDefenseCA

More good news from the legislature, dear readers!

Assembly Bill 1309, which would limit California’s workers’ compensation system, with all its generous benefits and cumulative trauma claims, to California professional athletes (locking out players who have played as little as one game in our glorious state), has moved closer to becoming law.  As of last Thursday, the Assembly passed AB 1309 in a landslide 57 to 1, and moving the bill to the Senate, which hopefully pass it with all due speed and send it to Governor Brown for signing.

Your humble blogger has no word one way or the other how “the Big J” will act on this bill if given the chance to sign it into law.  However, whatever Governor Brown’s other virtues or vices, good qualities and bad, he has a proven track record of signing into law workers’ compensation reforms that curb the exploitation of businesses, employers, and insurers.

After all, he reportedly lent his political weight to the passage of SB-863 (for better or for worse, time will tell), and signed several pro-business workers’ compensation laws while vetoing several anti-business ones.  As I’m told that “a trend is your friend,” here’s hoping that the Governor continues to maintain friendly relations with this seeming trend and sign this bill into law once it hits his desk.

What does this mean for Californians?  If the bill passes, we can expect to see less demand on the workers’ compensation system (an entire class of employees, the vast majority of professional athletes), will be barred from burdening California’s workers’ compensation system to recover for injuries sustained outside of California.

Additionally, your favorite panel attorneys will have a bit less work and might be more inclined to refrain from raising their rates for a little while longer as there will be less claims to defend.

And, of course, less money in the pot means less attorneys’ fees and payouts for the applicants bar (my heart bleeds for them!)

Let’s hope for a speedy passage and an immediately-felt effect.

Happy Wednesday, dear readers!

My plan for today’s blog post was to provide you with a list of 10 reasons why, when you have something you need to do, procrastination is not acceptable.  Unfortunately, I kept putting this assignment off, so I didn’t get to it in time for today’s post.

Instead, I bring you the case of Walker v. WCAB.  By way of background, back in 2013, California was in a middle of a mass hysteria of blood-lust for professional athletes.  Basketball players were herded together, only to be tarred and feathered.  Angry mobs descended on hockey players, pouring warm water over ice skating rings to create potholes, and burning copies of the Mighty Ducks.

In response, to pacify the angry hordes taking to the streets, the Legislature offered Assembly Bill 1309, which limited out-of-state professional athlete claims for workers’ compensation.  As part of the language of the bill, it “would provide that these changes apply to all pending claims for benefits filed on or after [Sunday] September 15, 2013, as specified”.

In Walker, it looks like the applicant filed his application on Monday, September 16, 2013.

The parties were in agreement that, if AB1309 applies, the claim is barred, but applicant argued that CCP section 12a and section 10508 (allowing an additional day to perform an act if the last day to act falls on a Saturday, Sunday, or Holiday), means that the claim should not be barred, because, as the law went into effect on a Sunday, all those injured professional athletes should have an extra day to file their claims.

The WCJ agreed, and found the claim is NOT barred.

Well, on appeal, the WCAB reversed, finding that CCP 12a and section 10508 turn on the last day to perform an action.  To the WCAB’s reading, AB1309 did not provide a last day to perform an act, but rather applied additional conditions to filing a claim, such as requiring a minimum amount of time in the State of California prior to filing a pro-sports CT claim.  Accordingly, 12a and 10508 do not apply.  The WCAB ruled the claim is barred.

The COA denied review of the WCAB’s ruling.

Now, your humble blogger is all in favor of claims being denied, but let’s think about this one for a second – AB1309 did not explicitly provide a statute of limitations, BUT it did create conditions which put an expiration date on certain claims.  Given this, isn’t there an implied “last day to perform an act”?  Because the law went into effect on a Sunday, Mr. Walker’s last day to file his application would have been a Saturday, which would have extended his last day to file, as applicant argued to begin with.

Another thought, dear readers — since the world has not ended, and we’re all still here, is it time to consider expanding the effect of AB1309?  Why just professional athletes?  Why only some sports?

What about the guy visiting California to attend a conference in the insurance industry?  What about the lady who is in California temporarily to conduct a job interview of a potential hire from a local law school, only to claim a CT in California for her carpal tunnel syndrome?  Perhaps we need legislation to require a minimum amount of time in California for ANY CT claim.

Perhaps you’d be interested in joining your humble blogger’s fantasy legislation league?

COA: 3 Training Days, 1 Game, and Subs. CA Employment Sufficient for Jurisdiction in Pro Sports Case

In a recent Court of Appeal published decision, Knickerbockers v. WCAB, the Court of Appeal held that Mr. Macklin, a basketball player, had sufficient connection with California to pursue his workers’ compensation claim here.

Mr. Macklin claimed a CT injury for his basketball career between August of 1981 and November of 1985.  The facts reflected that Mr. Macklin attended three games in California during the CT time, and practiced in California the day before each of these three games, and played in two of the games.  So, depending on how you look at it, he “worked” from four to six days in California during the CT period.

In 1984, he then signed on with a California team and trained played with the Los Angeles Clippers until late October of 1984.

The WCJ concluded that California did have jurisdiction over the case and issued an award of 76% permanent disability.  The WCAB denied reconsideration, reasoning that there was a sufficient connection between California and the Knickerbockers because of its business dealings in California, and there was also sufficient connection between applicant and California, because he did work in California and he was later employed by a California team.

Nor did the Knicks get much help from the Court of Appeal.  Affirming the WCAB, the COA rejected the contention that applicant’s de minimis contacts with California preclude workers’ compensation jurisdiction.

Not this mini mis

The COA put particular weight on the fact that applicant played for a California team during the claimed CT period.  The Knicks answered, of course, that Labor Code section 5500.5 limits liability to the employers of the last year of the CT, and, in this case the Knicks were not the employers as of June 1984, and the CT period is through November of 1985.  The COA rejected this argument as well, reasoning that the distribution of liability is a different question – jurisdiction is at issue and California has it.  (That’s what you get for coming to California!  Next time, have your games and training seminars on a giant barge in international waters, with the California Coast on the distant horizon.  We’ll call it Water Basketball, and we’ll form nautical themed teams like the Sea-Raiders, the Sea-Giants, and the Sea-[other things]…)

Now, wait just a darn tootin minute!  Don’t we have AB 1309 setting some requirements for professional athletes to meet prior to using California as their butcher block?  In fact, I seem to recall something about requiring at least 20% of duty days be in California… Well, yes, that’s correct, of course.  BUT, subsection (h) limits applicability to those claims made AFTER September 15, 2013, so no help from the legislature for the Knicks here.

What’s the exposure to the Knicks here?  Well, the facts as related by the Court of Appeal opinion reflect that the CT is claimed through November 15, 1985, but the last date of employment appears to be October 24, 1984.  If the applicant successfully establishes his date of injury as the last day worked, being October 24, 1984, the exposure would cover all employers back through October 24, 1983, which would include the Knicks, starting on June 29, 1983 (so 93% of the CT period).

But, as the Court of Appeal pointed out, that’s not really before them at this time.

And so it goes, dear readers, and so it goes… have a great weekend! 

Your humble blogger learned a long time ago to give credit where credit was due.  After all, the law in general dislikes windfalls and encourages disgorgement of unearned benefits.  Workers’ compensation law, not so much.

Credit is a tricky issue in comp law, and many defense attorneys find themselves fighting an uphill battle when money goes into the applicant’s left pocket instead of the right (or vice-versa).

Take, for example, the case of Lumb v. City of Chula Vista.  There, the injured worker claimed a cumulative trauma as well as a specific injury to the same body parts.  Defendant had overpaid permanent disability benefits in one case by roughly $2,500, and the WCJ was inclined to let the injured worker keep the extra money while making the defendant pay the same amount on the other case.

So, because of a mislabeled check, or the wrong claim number, the defendant was set to be out an extra $2,500, and the injured worker was set to receive that amount.  That seems fair, right?

The WCJ reasoned that the injured worker would have received more money prior to the decision in Benson, and the WCJ is merely mitigating the loss caused by that decision. (“It is clear that Applicant would have received more permanent disability prior to Benson and that Defendant received a monetary benefit regarding the overall amount of permanent disability owed, after the application of Benson.”)

Well, the defense didn’t think so, and it filed a petition for reconsideration, seeking to have the credit applied.  The Workers’ Compensation Appeals Board reversed the WCJ.

Relying on Maples v. WCAB (“Such resulting overpayments of temporary disability indemnity are typically small and do not result in any significant interruption of benefits.  Equity favors the allowance of such credit against permanent disability indemnity”), the panel reasoned that this was a relatively small amount and the injured worker was still going to receive plenty of permanent disability benefits as a whole.

But, that being said, we’re talking about a $2,500 credit which will now have to be reduced by the cost of the petition for reconsideration.  So, the injured worker gets no additional funds, the employer gets back less than what it should have, and there was delay and uncertainty in resolving the case.

Perhaps the proper thing to do here would have been to settle the matter of credit?  But, that’s a hard call to make: some defendants are willing to invest the time and money to develop a reputation for protecting their rights, and some don’t think the attrition is worth it.

Some have asked if there is a way to get the money back without seeking credit.  After all, if the injured worker has received benefits to which he is not actually entitled, don’t we have a case for unjust enrichment?  Well, good luck – even if a Superior Court Judge were disinclined to kick your case to the curb noting that whole exclusive jurisdiction matter, injured workers fighting tooth-and-nail for workers’ comp benefits don’t tend to have a lot of cash on hand for one to recover.

Well, at least in this case, the WCAB was willing to give credit where credit was due.

Good news, dear readers!  After a long uphill battle, several angry articles from applicants’ attorneys, and the temporary attention of the non-workers’ compensation world, Assembly Bill 1309 has received that coveted sign of approval – the Brown mark signature.

For those just tuning in and not inclined to read through the prior posts on the topic, AB-1309 is a response to the epidemic of cumulative trauma claims by professional athletes who have minimal contacts with California, sometimes as little as one game.

Governor Brown has signed AB 1309 into law.  Starting September 15, 2013, cumulative traumas sustained by professional athletes of certain sports, namely baseball, basketball, football, ice hockey, or soccer, will be excluded from California’s compensation system if less than 20% of the “duty days” of the last year of employment was spent in California.

Section (d)(1) provides an exception if the athlete spent at least 20% of his or her duty days in California or working for a California team; AND has spent less than 7 seasons working for non-California teams.

Here’s an interesting thought – do coaches count as athletes?  The law doesn’t say (“the term ‘professional athlete’ means an athlete who is employee at either a minor or major league level in the sport of baseball, basketball, football, ice hockey or soccer.”)

Also, AB-1309 took care to leave several prior decisions untouched, including Bowen v. WCAB, Wesley Carroll v. Cincinnati Bengals, and Dennis McKinley v. Arizona Cardinals.

All in all, a great send-off for the weekend, no?

As Assembly Bill 1309 sits on Governor Brown’s desk, hoping to bar a whole mob of professional athletes from the hallowed halls of the workers’ compensation venues, one group of workers get to continue enjoying California workers’ compensation benefits for non-California work.

For your consideration, I bring to you the case of Jessie Kenlaw v. Houston Comets.  Ms. Kenlaw worked as basketball coach from 1978 through 2008, and visited California a few times in 2007.  The main argument raised in this case was a jurisdictional one: defendant argued that injurious exposure in California is not sufficient for invoking jurisdiction – there has to be an actual injury in California for the defendant to get sucked into California’s meat grinders.

The argument is sensible enough – it’s not right to invoke California jurisdiction for a workers’ comp claim when the vast majority of the “exposure” is outside of California.  After all, we’re not talking about a situation in which the worker was in California for one day out of a 20 year career, but there was a specific injury here.

The Workers’ Compensation Judge, and the Workers’ Compensation Appeals Board, both rejected the argument.  The applicant’s burden is only to establish through substantial medical evidence that her work activities were a contributing cause of her injury, and in cumulative trauma claims, that’s pretty easy to do, because there’s nothing specific that causes the injury, but rather the job in general.

The facts show that applicant coached three games in California, and for each game she arrived in California two days early.  She participated in practice sessions and did coaching work.

But we’re talking about a cumulative trauma period from January 1, 1978 to July 1, 2008.  And for nine days (out of 11,139, or 0.08%) applicant now invokes California jurisdiction.

Although without much legal support, the defense put forth a good theory – it’s roots were in logic, justice, and basic fairness.

By the by, dear readers, if you’re at all concerned about the businesses leaving California, you should also look at these decisions as a reason why employers might not want to send their workers into California, even for a little while.

Perhaps at the next legislative reform happy hour, someone could pipe up about amending the Labor Code to require significant injurious exposure for workers temporarily in California before allowing workers’ compensation jurisdiction to be invoked.

That would be a… wait for it… slam dunk!

“Permanent total disability shall be determined in accordance with the fact.”  Eerie words from Labor Code section 4662, which allow the trier of fact to find permanent total disability in a variety of cases.

Recently, the Workers’ Compensation Appeals Board reversed a workers’ compensation Judge’s reading of this last sentence of section 4662 to find an applicant permanently and totally disabled.    The WCJ reasoned that the facts in this case, namely the fact that applicant’s impairment, whether by measuring his activities of daily living, ability to function in the work force, or perform essential elements of any occupation, shows that he is PTD.

The WCAB reasoned a bit differently – “[a] finding of total permanent disability ‘in accordance with the fact’ as provided in section 4662 does not preclude apportionment of the permanent disability between industrial injuries as described in Benson.”

Applicant sustained a specific injury and a cumulative trauma, so apportionment was necessary between the two.  The fact that the permanent disability was determined “in accordance with the fact” and not by the rating of impairment, did not negate the need to find apportionment (if appropriate).

The matter was sent back to the trial level to develop the record with respect to apportionment.

Remember, folks: non-industrial, prior-industrial, other-industrial.  Chop that injury into as many little pieces as possible, and suppository of workers’ comp suddenly becomes a much easier pill to swallow.

Welcome back from the weekend, dear readers.  Your humble blogger has some good news for you hailing from the legislature.

First off, it looks like California Senator Jim Beall has put Senate Bill 626 on hold, cancelling a hearing on it and reportedly putting it on the back burner all together.  My diligent readers will no doubt recall that Senate Bill 626 ambitiously sought to make a lamb of the SB 863 lion, without even allowing us to see its effects.  Now we’ll have a chance to enjoy the pendulum’s swing!

Additionally, Assembly Bill 1309, Assemblyman Henry T. Perea’s legislation to put a hold on the non-California professional athlete gravy train, is moving along as well, recently passing the Committee on Insurance.  My readers will also recall a blog post on this topic, a tiny whisper in a sea of angry voices bemoaning the potential loss in attorney fees and liens.

Your humble blogger will continue to sacrifice goats to the dark gods of legislation, hoping for the demise of SB 626 and the success of AB 1309.  Here’s hoping you have a good week!

If things keep going like they’re going, Assembly Bill 1309 might become irrelevant after all.  The bill would effectively bar cumulative trauma claims for visiting professional athletes, and is of course meeting with opposition from the usual suspects.

But recently, a Missouri federal district court recently confirmed an earlier arbitrator’s award instructing several football players to file their claims in their home states and not in California.

But the NFL isn’t waiting for California to decide whether or not it wants to be on the receiving end of a boycott for games and training camps – Federal courts are deciding the issues in other states and are consistently telling professional athletes that they must honor their employment contracts and bring their claims for workers’ compensation in their home states.

If you’re not a California team owner, you should be scrambling to create some precedent in your home state for the fact that the forum-selection clause of the pro-sports employment contract is enforceable and requires a professional athlete to bring his or her claim for injury in the home-state of the team.

If the pro-sports teams continue to win victories outside of California, it won’t matter much what happens to AB 1309.

I know the applicants’ attorneys are all chomping at the bit to get pro-sports clients in California, and the defense attorneys are probably looking forward to all those extra billable hours as they valiantly defend this team or that from the meat-grinder of California’s Boards.  Your humble blogger it not among them – logic, reason, and basic fairness have to trump a paycheck once in a while, and this is that once-in-a-while.

There is no reason why an employer from Any-State should have to defend a claim in California and be liable for a California award when its employee has barely any connection to California.  And continued efforts to drag other teams here and milk them for dollars, which would flow to all the participants in the system, will end up costing California a lot of money – no more games, no more training camps (it simply won’t be worth it anymore).

Here’s hoping for more victories for the side of reason.

Have a good weekend!

The Workers’ Comp thunderstorm in pro-sports paradise continues, as players and teams struggle over whether players can collect workers’ compensation benefits in California after playing one game or attending a training session here.

It looks like the Los Angeles Times has decided to focus its wrath and anger on Assembly Member Henry T. Perea (D – Fresno), for introducing Assembly Bill 1309 which would exempt professional athletes in the fields of baseball, basketball, football, hockey, or soccer if the employee is temporarily in the state if he or she spends less than 90 days in California in the year prior to the date of injury (whether specific or cumulative).

Far be it from your humble blogger to question the wise sages of Sacramento.  After all, he is but the humblest of the humble, both with respects to his blogging and his citizenship.  But, unlike the LA Times, this bill does not go far enough.

I might alter a child’s world by explaining to him that I’m not actually taking his nose, but I think my beloved readers have a firm grasp on the concept that California is not particularly business friendly.

I would submit to you, my readers, that this bill does not go far enough.  Instead of limiting itself to some sports, the bill should be expanded to include all visiting employees, whether here for a 10-day project or a 1-day conference.  Programmers and hospitality service specialists don’t make the headlines the way quarterbacks and goalies do, but how would you like to hire someone in North Dakota and have them attend a 3-day training seminar in California, only to claim a cumulative trauma immediately prior to retirement twenty years later?  And mind you, my dear North Dakota-an (esteemed gentleman or lady from North Dakota), you’ll be paying California dollars on the workers’ comp, not North Dakota dollars.

Right now, the professional sports teams are trying to get this thing passed in Sacramento, and they may or may not succeed.  Imagine if they can’t – imagine if the sports teams are stuck paying out the big bucks for each player looking for a retirement bonus.  At a certain point, wouldn’t it be cheaper to just boycott California games?

As grand as California is, every state is a good state for a training camp, and every state is a good state for a game.  The 49ers will just have to build a new stadium on the other side of the Arizona border, and the Raiders will have to host games on a floating stadium 10 miles out to sea.

Instead of sending our fearless governor to other states to make this state more attractive, perhaps we could start with baby steps – don’t punish non-California employers for visiting California (let alone moving here!)