WCDefenseCA

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! 

Are you tired of pro-sports cases? No? Good!

Today’s post is on the subject of Dan Fike, and, more to the point, his claim against the Baltimore Ravens/Cleveland Browns.  Mr. Fike was a professional football player from June of 1985 to December of 1992.  He sought to have his industrial injuries addressed under California’s workers’ compensation system, alleging a cumulative trauma to the head, neck, back, shoulders, and other body parts.

The defense was one typical of such cases: California did not have jurisdiction.  To support this defense, the Cleveland Browns provided evidence of self-insurance and extra-territorial coverage.  Testimony also established that between 1985 and 1992, applicant played only nine games in California.  Evidence also showed that no contract was entered into in California.

The WCJ found that, despite applicant’s 95.2% permanent disability, California had no jurisdiction under Labor Code section 3600.5.

On reconsideration, applicant argued, among other things, that the WCJ should have focused on the employer’s activities, rather than the employee’s in determining whether the employee was temporarily in the state.  After all, if the employer is regularly active in California, and the employee was just one of many cogs in the state, California should be able to assert jurisdiction over the claim, right?

No.  The answer is no.  Labor Code section 3600.5 is essentially a deal – a trust, a conspiracy between one state and another that says we won’t squeeze your employers for every penny if you won’t squeeze our employers for every penny, within these particular guidelines.   More to the point, even California understands that there are limits to how much your can rob visiting employers before employers stop visiting.

The WCAB denied applicant’s petition, and confirmed that employers from Ohio can safely send their agents into California, without fear of ever needing your humble blogger’s services.  The Court of Appeal denied applicant’s petition for a writ of review.

Now, interestingly enough, we have a statutory limit, aside from Labor Code section 3600.5(b), to such a claim at this point (maybe), and that’s subsection (c).  3600(c) NOW says that if the injured pro-sports athlete was hired outside of California and the employer has insurance outside of California, California does not have jurisdiction if the last year of the athlete’s career had less than 20% “duty days” in the Golden State.

Your humble blogger doesn’t have all the facts for this particular case, but 3600.5(c) is definitely a section worth exploring if you’re defending against a pro-athlete claim.

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.

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!)

Hello, dear readers!

Well, it looks like another workers’ comp fraudster has gone down!  The Sacramento County District Attorney’s Office has announced that Todd Phillips, a corrections officer, has pled guilty to misdemeanor workers’ compensation insurance fraud.

After being taken off work for a 2010 foot injury, Mr. Phillips complained of pain in his foot and being unable to work while playing in softball games (running bases, running to catch balls, and hitting his foot with the bat!).

The sentence? 60 days in county jail, with Sheriff’s release program recommended, 3 years’ probation, and almost $13,000 in restitution to the California Department of Corrections and Rehabilitation.

Your humble blogger congratulations the district attorney’s office on a successful prosecution, and welcomes this as another demonstration of diligent and effective investigation of a claim well past the 90-day mark.

However, it also provides some sad commentary on how slow the wheels of justice move: for misconduct that was video-taped in September of 2012, there is a conviction now, 3.5 years later.  There will probably be some time before the CDCR receives restitution, and, as always, the tax-payers foot the bill for the prosecution.  In this case, the tax-payers foot the bill for the investigation as well.

The workers’ compensation system, as it is, allowed this fraudster to slip through the cracks and continue to receive benefits.  The justice system, as it is, provided weak and slow justice to the ultimate victims – the taxpayers of California.

What about the fraudsters out there that decide that engaging in public displays of sports-competency and ability are not a good idea at a time that fraud is being alleged?  What about those that are simply happy to be paid not to work while retaining their health?  They can catch up on reading, their favorite movies, and spend quality time with their families while someone else foots the bill, and the likelihood of detection and prosecution is almost non-existent.

Something has got to give, dear readers… something has got to give.

Have a good weekend!

Hello, dear readers!

Welcome to 2016 – your humble blogger has missed you greatly, and is excited to make this year the Year of the WC Defendants!  We will sanction the lien claimants; we will make a mountain of 5710 fees denied by the WCAB; and hang from the battlements enlarged copies of IMR affirmations of UR determination denying $25 seat cushions…

Anyway, since we’re all just trickling in from vacation, I thought I’d offer a quick recap of some of the things that we get to look forward to as of January 1, 2016:

As you will recall, minimum wage is California has gone from $9/hr to $10/hr, although local governance might have the rate even higher still.  You may want to adjust TD calculations accordingly if you have any full-time minimum wage earners.

Mileage reimbursement goes down to 54 cents per mile (from 57.5 cents)

Assembly Bill 202 took effect on January 1, 2016, statutorily moving cheerleaders for professional sports teams from independent contractors to employees, entitled to workers’ compensation benefits.

Additionally, any liens filed prior to January 1, 2013, for which there has not yet been an activation fee paid, are dismissed by operation of law, as of January 1, 2016.

Finally, for injuries sustained after January 1, 2016, the TD rates are at a minimum of $169.26 and the maximum is $1,128.43.

What do you think dear readers? Has your humble blogger missed anything of significance?

Happy New Year, dear readers!  I’ll see you folks, bright and early, next Wednesday!

Are police officers ever “off duty”?  In the case of Simon v. City of Vacaville, a split panel held “yes.”  Officer Simon, of the Vacaville PD, enjoyed the benefit of an “individual fitness plan” with his employer, which provided workers’ compensation coverage while running, jogging and walking, so long as these activities were performed on a sidewalk, in a city park, on a treadmill, or on an athletic field.

While off duty, applicant was walking with his wife in what he thought was Pena Adobe Park, but then followed a trail up until he slipped and fell, tumbling down 60 feet.  The fall resulted in a shattered right shoulder, four broken ribs, and a punctured lung.  Not exactly a “paper cut.”

The issue of AOE/COE was brought to trial, and one of the main points of contention was whether the trail where the injury occurred was considered a “city park” and thus part of the individual fitness plan.  Applicant also had a back-up argument in play: even if this injury did not occur in a “city park,” as applicant is required to stay physically fit for his job, hiking should be covered as industrial even though there’s no specific coverage under the fitness plan.

Initially, the WCJ relied on the Court of Appeal’s opinion in the case of Ezzy v. WCAB (1983) 48 CCC 611, which held that if the injured worker subjectively believed the activity to be part of his duties and responsibilities, and this belief was reasonable, coverage should be extended.  He held that the injury should be covered as the activity does not fall into a specific exclusion of the plan (the plan banned off-road running, but this was a walk).

However, following defendant’s petition for reconsideration, the WCJ was persuaded by the subsequent authority, namely the case of Young, previously discussed on this blog.  The WCJ recommended that reconsideration be granted.

The split panel did just that – the majority held that Labor Code section 3600(a)(9) specifically excludes “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

In this case, there was a fitness plan that specifically listed various physical activities which the employer considered to be part of the off-duty physical fitness plan.  The commissioners, as the WCJ, found that hiking on a trail would fall into such an exclusion, especially in light of the fact that the employer had outlined the sort of physical activities that would be expected in “off-duty” conditions to maintain physical fitness.

The dissent, however, would have found the injury compensable, assigning considerable weight to the fact that applicant started out his walk in a park, which was covered as part of the fitness plan, but ended up on a trail outside of the city park.  His subjective belief that he was still in the city park should have been controlling, the dissent reasoned.

Most employers are not law enforcement organizations – most are privately owned entities in various industries offering various services.  How can the reasoning in this decision help guide us to minimize exposure for workers’ compensation claims?  Often, the off-duty recreational activity issue rears its ugly head when employees engage in sports with other employees – pick-up basketball games, softball leagues in which various members of the same industry compete, etc.  Usually, the direct supervisor encourages employees to participate without much regard to the effect such participation would have upon workers’ compensation exposure (“It’s entirely voluntary, they don’t HAVE TO play monkey knife fight if they don’t want…”)

Perhaps this case can serve as a reminder for employers to clearly define what sort of off-the-clock activities are allowed or encouraged for employees, and which kind are not.  This may also serve as an opportunity to reminder supervisors and managers to confine encouragement to activities expressly approved by the employer – weight-lifting for security personnel might be good, but sky-diving might bear risk and expense which quickly outpaces its usefulness in serving as a night-club bouncer.  Baseball games are fun, of course, but 10/10 employers would rather keep their experience modification down.

Cheer up, dear readers, the best is still ahead!

Hello, dear readers!

So, this weekend was the big game, huh?  Did you notice those ladies with the pom-poms and the uniforms cheering their teams on?  For those that watched the Super Bowl, it must have been so frustrating to try to focus on the game while that nagging question kept scratching at your brain… are those cheerleaders employees or independent contractors?

Assembly Member Lorena Gonzalez has introduced AB 202, which would have NFL Cheerleaders provided “all of the rights and benefits afforded to its employees under this code, regardless of the terms and conditions under which the cheerleader performs.”

Now, as we all recall from School House Rock, a bill has a long way to go before it becomes law…

It’s no secret how your humble blogger feels about any efforts to infringe upon the right of reasonable parties to enter into contract.  The suggestion that a cheerleader, or any other reasonably intelligent adult, cannot negotiate the terms under which services are exchanged for money is a little silly.  We all negotiate for the things we want and need every day.

The effect this would have, though limited in scope, reflects a further lack of understanding in the California Legislature as to the problems plaguing California’s economy, and, although it seems unlikely that too many of California pro-sports teams will leave, the same though process will continue to drive other employers away.

Cheer!