WCDefenseCA

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.

Facebook.  In days like these, we cannot afford to brush it off as just a venue for attention-seekers to document every meaningless aspect of their lives for the world to see.  It is also a great resource for catching fraudsters and plugging workers’ compensation leaks.

There are sophisticated methods of using Facebook to catch injured workers exceeding their “physical limitations.”  For example, you might catch a TTD applicant posting pictures of himself playing basketball, or that spinal injury case might be uploading video of herself doing tricks on a jet-ski.  But sometimes the lies are even more glaring.

Kristi Denise Motty was convicted for workers’ compensation fraud following a two-day trial.  For this case, the deputy district attorney stepped back from the trees and showed the jury the forest – it didn’t matter what Ms. Motty was posting on Facebook; she didn’t need to discuss mountain climbing or bear-wrestling.

While Motty was off work, she entered nearly 200 updates on her Facebook account, even though “it was impossible to write or type” and her pain from doing so was “excruciating.”  Motty worked as an office technician at Corcoran’s California Substance Abuse Treatment.

Motty was also photographed loading textbooks into her car, attending nursing school classes, taking out the trash, texting on her phone, and carrying heavy grocery bags.

WCDefenseCA sends its congratulations to the Tulare County District Attorney’s Office for a job well done!

Imagine this scenario: you enter into a stipulation to resolve a lien with a lien claimant’s hearing representative.  The stipulations are signed and approved by the workers’ compensation Judge.  When the lien claimant hears about the stipulation terms, it wants out of the agreement, claiming the hearing rep. exceeded the authority granted to settle.  Well, one WCJ issued an order rescinding the stipulation and releasing the lien claimant from its binding effect.

In the case of Ronald Houghton v. All Brands Sewing and Vacuum, defendant and lien claimant Express Case Management entered into a stipulation to settle the lien of $14,639 for $1,411.  The lien claimant then filed a petition for reconsideration arguing that “its hearing representative mistakenly took defendant’s offer, thinking it was appropriate.”  Even though the defendant was not served with the petition, the WCJ rescinded the earlier order, setting the lien claimant free.

The defense, upon receipt of the order (22 days after it was issued) filed a petition for reconsideration.  After addressing the issue of timeliness, and finding that defendant’s petition was timely, the Workers’ Compensation Appeals Board rescinded the WCJ’s order, reinstating the original stipulations.

A law professor once told me that the governing motivation for almost any judge or panel of judges is “judicial economy.”  The reasoning in this panel opinion shows that to be true.  The WCAB cited Robinson v. Workers’ Comp. Appeals Bd., in that the purpose of stipulations is to expedite trials and hearings, and that “if a party had the right to withdraw from a stipulation, ‘hearings would be subject to uncertainty and disruption in order for the parties to gather and present evidence on issues thought to have been laid to rest by the stipulation.”

In other words, if a hearing representative exceeds his authority, perhaps you should retain a different hearing representative.  It’s not the defendant’s problem, and it certainly isn’t the WCAB’s problem.

Maybe this whole workers’ compensation thing isn’t worth it.  After all, the purpose of the workers’ compensation system was a trade-off: employers get caps on their liability, employees get quicker access to benefits, and the variable of fault is no longer part of the equation.  So, slip on a banana peel at the supermarket where you work, and you get benefits, unless you were shopping on your day off, then you’re just a klutz.

But what if you’re an employer and you’re fed up with this ridiculous system!  You’re tired of applicant’s attorneys demonizing you to your employees; you’re tired of paying insurance companies or defense lawyers or being audited again and again by the state just for self-insuring?  What if you could just opt out?

What if an employer could opt out of the workers’ compensation system?

That’s not the thinking in California, but it is in Oklahoma.  Having passed the House and the Senate of the state where hard work still conquers all, the law now awaits calibration between the two houses of the state Legislature before going to the Governor’s desk.  Texas already has an opt-out process for workers’ compensation, but in typical Texas fashion, was the only state to do so (until now).

One of the stated purposes of House Bill 2155 is to “[a]ssist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.”

But where would Oklahoma, as a state, attract business from … except other states?  Perhaps other states like … California?

Sacramento – the rest of the Union is out to poach California businesses.  Please don’t make it easy for them to do so by driving every employer off.

For all its harmful effect, asbestos has a wonderful property which prompted its frequent use – it is resistant to fire, heat, electrical and chemical damage, making it ideal for insulation purposes.  The Federal Government was well aware of its benefits, and required government contractors building ships for the United States Navy to use asbestos to, among other things, prevent fires aboard-ship.

Fast-forward several years: decade after decade of asbestos litigation burdens employers, the legal system, and our daytime and midnight television commercial space while the Federal Government which mandated the use of asbestos walks away, the words “sovereign” and “immunity” heard between laughs.

Recently, your easily alarmed and somewhat paranoid blogger started thinking about this upon seeing this story.  It appears that more and more concern is being raised about the possible cancer-causing effect of the Transportation Security Administration’s full-body scanners.  According to Dr. Edward Dauer, head of radiology at Florida Medical Center in Fort Lauderdale, the full-body scanners pose a threat to those over 65 years of age and women genetically at risk of breast cancer.  The radiation could also imperil the lens of the eye.

Frequently enough, California employers send their employees abroad or even to other parts of California by flight.  Conferences, training sessions, meetings, and presentations might require an employee to take to the skies countless times a year.  A certain George Clooney film immediately comes to mind.

And, as California retains jurisdiction over all injuries that occurred and/or those in which the contract of hire was completed in California (see Labor Code section 5305) employers might soon enough find themselves before a Workers’ Compensation Judge, hearing the theory of how all those client meetings all over the country exposed applicant X to so many scanner machines, causing this cancer or that.

Hopefully, the machines are harmless to the body; both to flyers and to California’s self-insured employers and insurers.  If they are not, we can only hope that the Federal Government will not walk away from the mess it created, leaving private-sized employers to shoulder a federal-sized problem.

A recent article from BusinessInsurance.com covers an interesting case.

Normally I don’t post on unpublished opinions because, according to the California Rules of Court, unpublished opinions may not be cited.

The facts of this case are pretty straight forward: plaintiff worked for a construction company that was put to work on the company-boss’s house.  Applicant slipped and fell while at the house and wanted to sue his boss in civil court.  The Court of Appeal sent this one back to the workers’ compensation world.

I am well aware, as I’m sure many of my readers are, that defendants are regularly robbed in California’s Workers’ Compensation system.  Perhaps, if given the option, the defense community would be better off regaining its due process rights and duke these cases out in the civil arena.

That being said, I’m always surprised to see injured workers trying to climb out of the same lobster tank as us defendants.  After all, the workers’ compensation world is a workers’ paradise – why risk the dangers of the civil arena with its burdens of proof, concrete rules of evidence, and systemic accountability when you can have the presumption of compensation and applicant friendly environment of workers’ comp?

When both sides of the table are trying to jump ship – something is definitely wrong, both on the horizon and at the helm.

Early on in my blogging career, I wrote about Florida’s efforts to curb California’s pillaging of orange groves and Dolphin teams with our very own section 5500.5.

I even had the distinct privilege of summarizing the workers’ compensation issues on Lockout Lowdown, an excellent sports law blog.

It appears that several states may follow Florida’s lead, among them Michigan, although clearly not as boldly and with a fraction of the effect.  A recent article reports that unsurprising support of the Detroit Lions for HB 5002, the Michigan workers’ compensation reform bill.

The bill locks visiting players out of Michigan’s workers’ compensation system if their state makes reciprocal arrangements for Michigan’s players.

In other words, the legislature in Michigan is telling the legislatures of other states: pass similar laws or we’ll loot your professional sports teams.

Here’s the problem with Michigan’s scheme: California doesn’t appear to care very much about its businesses, sports teams included, so the 49ers, the Giants, etc. are more of the human shield variety for Michigan and the like.  Also, no other state has as crippling generous workers’ compensation benefits as California, so more pillaging will be done from this state than from any other.

In any case, I salute Michigan for heading in the right direction – I don’t want non-Californians clogging up my venues with non-California cases because of a single game played in the Golden State.

As we watch the events unfold before us, dear readers, remember to keep calm and carry on.