WCDefenseCA

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?

Think to your client’s workplace, or even your own.  Think of the top 3 things that are fun and enjoyable.  Ok, get rid of them, because they’re driving up your workers’ compensation rates!

The recent case of Jose Hernandez v. Bryan Mimaki, saw the Workers’ Compensation Appeals Board affirming a Workers’ Compensation Judge’s finding of a compensable injury when Mr. Hernandez injured his knee during a lunch-time basketball game at work.

The employer-provided a court and basketballs, and apparently, for years and years, employees had played basketball during their lunch break.  Applicant’s own supervisor regularly encouraged him to play, which he did.  Testimony was taken that applicant didn’t always play, and there were no consequences for not playing.  Additionally, one of the supervisors (not applicant’s) discouraged his own team from playing because he considered it a “dangerous game” (a gateway sport to more, hard-core sports, such as hockey).

The WCJ and the WCAB both found that Labor Code section 3600(a)(9) (“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.”)  The WCAB relied on the case of Ezzy v. Workers’ Comp. Appeals Bd. (1983), noting that because there was a subjective understanding on the part of the employee, and that understanding was reasonable (with respect to the requirement that he play).

But in the Ezzy case, applicant returned from vacation and was given a team shirt and told that she’d be at the next game.  In the instant case, however, a supervisor (in other words, another employee), didn’t force anyone to play.  In fact, there were several employees who did NOT play, and applicant didn’t play on occasion, with no consequences.

But, what can you do?

Like your humble blogger suggested at the beginning of this post, think of all the things that are fun and enjoyable at your place of business, and get rid of them.

Are you sick and tired of that gloomy intersection where pro-sports and workers’ compensation reluctantly meets?  Well too bad, because there’s more!

Now, I’m not going to bore you with all the details in the recent en banc decision from the Workers’ Compensation Appeals Board, Wesley Carroll v. Cincinnati Bengals.  Here is the skinny on that case: injured pro-sports player Wesley Carroll filed a claim in California after playing some 6 games in California (out of a total of 48; 12.5%).

The Workers’ Compensation Appeals Board found that one of the teams, the Cincinnati Bengals, was exempt from California’s crushing, ruthless, and back-breaking workers’ compensation system thanks to that coveted escape route of Labor Code section 3600.5.

As you may recall, section 3600.5 allows an out-of-state employer to escape California comp jurisdiction if:

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.

Ok, so, why do you care?  After all, it looks like these claims might go the way of the dodo soon enough if certain legislation makes it through the Sacramento maze.  And, even if that fails, there are about 1,700 pro-football players in the United States, some of which are employed in California.  Compare that to almost 16 million people employed in California alone.  Why does this opinion matter to those of us who don’t represent or handle pro sports cases?

I’m glad you asked! (You did ask, right? This slowly unraveling blogger could have sworn he heard a voice ask…)

If we forget about the fact-specific ruling of the Carroll opinion, what is the average person left with?  The WCAB is telling us, in a binding authority opinion, the following:

A person who spent 12.5% of his time in California and the rest employed elsewhere is in the state only temporarily.  As is 15.7% (5 of 32 games played for the Bengals).  In fact, the language of the opinion lends itself to the theory that, even if applicant had spent 99% of his time in California, so long as he had the intent to leave California after his task was completed, he could still be regarded as only temporarily within the state.

Another holding to keep for future need is the WCAB’s opinion with respect to Ohio.  The WCAB here concludes that Ohio recognizes the extraterritorial provisions of other states; and that Ohio exempts California employers and employees from its own workers’ compensation system, thereby satisfying the elements of section 3600.5.

So, if you’ve got an Ohio employee temporarily in the state for a conference, recruiting, training, or a short-term project, you can rely on this opinion to help you raise the 3600.5 defense.  (Note: in a similar case, California jurisdiction was denied based on a forum selection clause.  See: Dennis McKinley v. Arizona Cardinals)

Now here’s something interesting – the WCAB ordered the Bengals dismissed and sent the matter back down to the Workers’ Compensation Judge for further action on this issue.  But what could be left to litigate about?  Well… there’s also the New Orleans Saints.  The opinion doesn’t offer much about the fate of the Saints, but it will be interesting to see the defense the Saints intend to mount (if any).

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.

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…

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.