Why Chip Away at Work Comp? Let's Just Get Rid of It

California Assembly Insurance Committee Chairman Henry Perea (D-Fresno) introduced AB 1309 late Friday, February 22.

AB 1309 seeks to exempt professional athletes that are temporarily in California from coming under the state's jurisdiction for workers' compensation benefits.

The bill would amend Labor Code section 3600.5, a code section that otherwise extends extraterritorial jurisdiction on claims that arise due to causation in California, regardless of the extent of California connection and whether or not the employer is based in the state.

According to the bill preamble:

This bill would provide that an employee hired outside of this state, his or her dependents, and his or her employer shall be exempt from this state's workers' compensation laws if the employee is a professional athlete, defined, for purposes of these provisions, to include an athlete who is employed at the minor or major league level in the sport of baseball, basketball, football, hockey, or soccer, and that professional athlete is temporarily within this state doing work for his or her employer. This bill would deem a professional athlete to be temporarily within the state doing work for his or her employer if, during the 365 days immediately preceding either the professional athlete's date of injury, or, in the case of an occupational disease or cumulative injury claim, the professional athlete's last date of injurious exposure while employed anywhere as a professional athlete, the professional athlete performs less than 90 total days of required services within the state under the direction and control of the employer. The bill would provide that if the employee is a professional athlete, the date of injury in cases of occupational diseases or cumulative injuries is the date of the employee's last injurious exposure while employed anywhere as a professional athlete, or the date of diagnosis, as defined, by a licensed physician, whichever occurs later.

The bill would also provide that an employer of a professional athlete that is subject to California's workers' compensation laws is not liable for occupational disease or cumulative injury if at the time application for benefits is made the professional athlete performed his or her last year of work in an occupation that exposed him or her to the occupational disease or cumulative injury as an employee of one or more other employers that are exempt from California's workers' compensation laws or pursuant to the above provisions or any other law. The bill would provide that these changes apply to all pending claims for benefits, as specified.

The proposed amendment defines "professional athlete" as "an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, hockey, or soccer."

According to the Los Angeles Times, Perea said that AB 1309 is expected to be a "starting point" for a lively legislative debate over whether claims from out-of-state retired players represent abuse of the California workers' compensation system and wind up hitting all California employers with higher premiums and surcharges that pay for outstanding claims left by failed insurance companies.

Puh-leez.

While some professional athletes have outsized salaries compared to the Average Working Joe (AWJ) the truth is that indemnity benefits are capped so Kobe Bryant can't get any more in benefits than the AWJ.

By the way, according to the U.S. Bureau of Labor Statistics (BLS), the average annual salary of professional athletes is only $79,460.

And do professional athletes really comprise that much of the work force that their alleged "abuse of the California workers' compensation system" really affect other employers?

What a sad, inaccurate and tired argument that is.

Again, according to the BLS in 2008, only about 16,500 held jobs as professional athletes and sports competitors.

Let's say that the BLS stats are erroneous and there are twice as many professional athletes and sports competitors than reported. Let's say that the stats are grossly erroneous and that there are ten times as many professional athletes.

Even at 10 times the BLS stats, the professional athlete population is SO small that it doesn't even represent a drop in the bucket of the total employed population. Heck, it doesn't even represent a molecule of water vapor...

In addition, according to the Times article, only about 4,500 out-of-state players have won workers' compensation judgments or settlements since the early 1980s.

So Perea's argument that there is any connection between "claims from out-of-state retired players" driving up costs for all state employers and causing the failure of insurance companies is completely preposterous.

What is really behind this legislation?

The rumors I have heard point the finger at the National Football League (NFL) in a retaliatory move against players that are seeking to hold the league, its owners and the teams accountable for some serious injuries that have more recently come to light, in particular following the suicide death of popular San Diego Chargers player Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case.

AB 1309 is bad law. There is no compelling social benefit from this law, and worse, I believe it opens the spigot even further towards the decimation of workers' compensation coverage for most all employees.

If employers don't want to pay for workers' compensation in California then employers should just seek to terminate the system.

Boom. Gone. Done.

Then there would be no more "higher premiums and surcharges that pay for outstanding claims left by failed insurance companies."

If that's what the employers who do business in California, or any state for that matter, want then let's just get it over with. Professional sports is leading the way in making workers' compensation irrelevant to modern society.

Let's just get it over with and end the debate - get rid of work comp.

Otherwise let's find something a bit more substantial to debate in Sacramento, or any other state capital for that matter, like our sad state of economic affairs, out of control taxation and poor financial decision making.

Perea should be truthful with us: AB 1309 is a red herring that's really intended to open the debate on the elimination of ALL continuous trauma claims and ALL extraterritorial recognition of injurious causation - not just those of professional athletes.

I'm calling BS on this measure. You should too.