Flipping The Bird

I often write about doing the right thing, and how an employer's culture starts at the top and filters through the ranks, ultimately affecting how workers' compensation is delivered to injured workers.

I have written in the past about professional football, how the NFL has gotten off cheap on its obligations to the players that have sustained traumatic brain disease, and how it has successfully interloped in state politics to get laws passed limiting teams work comp exposure but shortchanging players.

I am convinced that California's recent elimination of the neuropsychology specialty from the Qualified Medical Examiner rosters was tied to the leagues' Los Angeles re-expansion.

But now the Los Angeles Rams wants its players to submit to the workers' compensation laws of the team's former state, Missouri.

The Rams, according to a report by NBC Sports, are offering contracts to new players stating that any workers’ compensation claims will be handled under Missouri law, and any disputes will be under the jurisdiction of the Division of Workers’ Compensation of Missouri.

In anticipation of jurisdictional attacks, the language of the contract further states that its terms have been negotiated and executed in Missouri and, as such, any contract disputes would also be handled in the state.

Missouri was 21st in Oregon's 2014 biannual rankings of most-expensive states for workers’ compensation costs. California, of course, was first. Missouri’s costs are 108% of the median cost among all states, compared to 188% for California.

Benefits are far more stingy in Missouri than California. For instance, Missouri temporary disability indemnity rates are capped at 105% of the state’s average weekly wage (SAWW). The current SAWW in Missouri, set on July 1, 2015, is $844.69 a week, which means the maximum an injured worker can collect, regardless of his salary, is $866.92 a week.

In California, the maximum temporary disability benefit an injured worker can collect is $1,128.43.

And California recognizes the scourge of professional sports, cumulative trauma. To curtail this practice, NFL lobbyists were successful in getting AB 1309 passed in 2013, shutting down the avenue for out-of-state players to file CT claims in the Golden State.

While the players union has rejected these proposed contract clauses, that doesn't mean the team won't keep trying to do the wrong thing.

Forget about workers' rights and whether benefits are better or worse in one jurisdiction or another.

Here's what galls me - a multi-billion dollar business is coming into the state of California, quite willing to suck as much as it can out of the pockets of consumers in the state, quite willing to avail itself of tax incentives that ultimately line the wallets of league owners, quite willing to impose its will on the people ...

Despite the huge financial benefit of moving into a market worth many billions of dollars more than its prior market, this business does not want to abide by that state's laws, or protect its workers (i.e. the professionals on the field) in accordance with the will of the people as expressed in California law.

There's taking advantage of a situation.

And then there's taking advantage of an entire population.

The Rams don't respect the law, don't respect the people of California, and don't respect its own workers - a culture of denigration from the top down...

I get offended when someone flips me the bird like this. You should too.

Football - Of Course...

The day after Super Bowl Sunday - what did you expect from this blog?

I did what nearly every other American did: watch one of the single biggest media events on television, uniting with millions of others to experience the pageantry, suspense and excitement of professional football - the nation's favorite entertainment.

Of course, mix the National Football League and workers' compensation in the same blog and you come up with brain injury.

There was one Denver Bronco player sidelined with a head injury in the game (I forgot who) and commentators later indicated that he had been referred for neurological examination. The topic came up in announcer banter a couple of times during the broadcast.

Brain injury is a big issue for football, but NFL Commissioner Roger Goodall doesn't think so, at least not now with the league's success in state legislatures passing laws against cumulative trauma, cross-jurisdictional awards and an inadequate brain injury trust fund (as part of a class action law suit settlement).

The NFL's various insurance carriers were probably more circumspect about the risks though.

Travelers Insurance Company in particular didn't like the cost of brain injury treatment, so it undertook some subterfuge to avoid it.

George Visger spent only one season with the San Francisco 49ers in 1980. After suffering multiple concussions, Visger developed hydrocephalus, which is a build-up of fluid in the brain.

Travelers was the 49ers workers' compensation insurance company.

Visger established the compensability of his brain injury in 1984, and he received an award of $10,552.50 in permanent disability benefits and future medical care. In the years that followed, however, he struggled to get the treatment awarded.

Finally in 2012, he retained the assistance of counsel.

In response to counsel's communications, Travelers hired medical management company, Paradigm Outcomes, to assess Visger’s condition.

The nurse case manager Paradigm assigned to Visger's case issued a treatment report. Travelers apparently wasn't happy.

The nurse case manager, Douglas Ardley, would later testify that once Travelers learned about the cost of the brain injury treatment he recommended in his report, Travelers told him to bury it. Visger's attorneys were eventually able to obtain the report by subpoena and then secure an award for the recommended treatment.

Travelers challenged the judge's ruling, but the Workers' Compensation Appeals Board denied reconsideration of it last October. The carrier then sought relief from the 2nd DCA, but the court last week decided to let the board's decision stand.

The tragedy in Visger's case isn't that he had hydrocephalus, nor that he had to wait so long to get recommended treatment.

And though reprehensible, there's no tragedy that Travelers pursued its own profitability interests over the ward whom it contracted to take care of; and certainly it's unfortunate that California's reforms over the past 25 years have eviscerated any meaningful penalties or enforcement for bad faith against a recalcitrant claims payer when there's unrequited testimony about dollars over life.

The tragedy is that such cases sabotage trust. I want to report that Travelers read Ardley's report and implemented all recommendations, or more, and went above and beyond the call of contract to take care of Visger.

But instead the company decided shareholder interests were greater than its fiduciary responsibility to the beneficiary of its insurance contract.

It's reported that Commissioner Goodall in his state of the NFL address before the Super Bowl downplayed the safety risks.

"There is risk in everything," he said. "There is risk sitting on the couch."

Visger and his attorneys would argue that there's greater risk ending up in the workers' compensation system subject to medical decisions that take into consideration the payer's profit margins over the health and well being of the injured.

It's a shame.

We should not wonder why work comp has such a bad reputation.

Visger's case was San Francisco 49ers v. WCAB, No. B268862.

Football and Work Comp Politics

Bowzer knows...

In October, after the California Division of Workers' Compensation eliminated neuropsychology as a QME option, I said that Los Angeles would finally get it's football team.

Specifically I challenged commentary in the WorkCompCentral story about the neuropsychology QME elimination that it was about abuse by applicant attorneys. I said:

"That may be. But it is too simplistic. If applicant attorneys were routinely abusing loopholes and circumventing the psyche prohibitions by selecting neuropsychology for QME work (which the defense could oppose, by the way), then this would have surfaced as a problem long ago.

"Nope - politics is much more sinister than something with that easy an explanation. There's another reason, something that is much deeper, much more politically connected, involving much more money and power.

"Maybe I'm "out there." Perhaps my cynicism is way too obtuse, or my imagination too far afield from reality...

"There are three football teams in California. The NFL wants a fourth to satisfy the demand. Traumatic brain injury leading to dementia and Alzheimers has been scientifically and medically correlated and those diseases are very, very expensive over the lifetime of the sufferer...

"Los Angeles will finally get its team..."

My cynicism was based on the fact that an administrative agency, which has only the jobs of executing and enforcing legislative action, not only made new law (I don't buy that neuropsychiatry was accidentally left as an option for 20 years...) but was in fact politically active in opposing any attempt to recognize neuropsychiatry as a legitimate QME option - the timing was simply not just coincidental nor serendipitous; it was odiferously suspicious.

I told anyone that would listen that announcements would be made within 6 months of DWC's final action.

I was wrong. It took 5 months.

Maybe I wasn't obtuse, cynical or imaginative enough.

There's really not much more to say, except that attempts by psychology groups to reinstate neuropsychology QME as an available category for resolution of disputes will fail - at least until after the stadium is built and at least one team is seated there.

I've said it before, and I'll say it again, "workers' compensation is a political construct that obfuscates medical science in order to achieve a financial goal."

The proof is in the NFL and the California DWC.

Vetoes and The Bargain

Bowzer knows.

The Grand Bargain - the courts have told us many times that workers' compensation is a legislative and regulatory matter, and that they will abide by what the legislature desires.

But the Grand Bargain is also politics exemplar of the circuitous manner in which a part of the bargain is surreptitiously and detrimentally altered against one party or the other.

In the case of California's AB 1542, (Mathis and Cooley), politics has stuck it to injured workers with brain injuries.

AB 1542 was a bill that passed through the legislative branch with near unanimity (note it was dually sponsored by a Republican AND a Democrat - how often do you see such bilateral agreement?) to Governor Brown's desk. The bill was fostered in response to the Division of Workers' Compensation's proposed (and now permanent) elimination of the specialty of neuropsychology as a choice in the Qualified Medical Examiner process.

The official regulatory reason to get rid of neuropsychology as a QME panel choice was the category was a mistake 20 years ago and should never have been an option, and was missed when the QME process was visited several years ago. Now that the QME selection process has being automated, effective October 1, which required regulatory action to implement, the administration decided it's a good opportunity to clean this up.

The Department of Industrial Relations says its rules provide that QMEs can only be specialties recognized by a state medical board, and since neuropsychology isn't recognized by a California medical board, namely the California Psychology Board, it doesn't meet DIR criteria.

Brown's veto message follows the Administration's party line.

"This bill undermines the Division of Workers' Compensation's authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel," Brown's veto message says. "The Division is not in the position to determine the validity of a physician's qualifications. That power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so."

Of course, I call Bull on this, as I have in the past.

The CPB defers to the national board for specialization, and neuropsychology is so recognized, and in fact was the first specialty in psychology to achieve that status.

In fact, neuropsychology is endorsed by the American Academy of Neurology as not only a viable specialty for the evaluation of cognition in brain injury cases, but one of the only specialties for such.

Not only is the specialty nationally recognized, and that recognition is, by delegation, recognized by a California board (and probably more importantly, the medical profession in general), but the Division can call it's own rules, and make an exception to it's "standard." That exception has resided for 20 years.

In addition, Brown says the Division apparently doesn't have the expertise "to determine the validity of a physician's qualifications." Bullshit. Why is there an Executive Medical Director position within the DWC? And if the DWC has no expertise, then how can the Division routinely test, qualify, and scrutinize (and in fact has disciplinary authority) medical professionals that are in the QME system?

So what's the real reason? Why now? Why neuropsychology? Why the urgency? And what, if any, is the detrimental impact to the DWC?

In other words, why does DIR/DWC really care?

Brad Wixen, an attorney who specializes in the cross-examination of medical professionals, offered this explanation:

"They (the Administration) are afraid that applicants attorneys will use neuropsyche as a loophole to avoid the restrictions against psychiatric injuries that are currently written into the law. Surely some attorneys will try to make the case for neurocognitive on too many cases. But that is what Judges and laws are for."

That may be. But it is too simplistic. If applicant attorneys were routinely abusing loopholes and circumventing the psyche prohibitions by selecting neuropsychology for QME work (which the defense could oppose, by the way), then this would have surfaced as a problem long ago.

Nope - politics is much more sinister than something with that easy an explanation. There's another reason, something that is much deeper, much more politically connected, involving much more money and power.

Maybe I'm "out there." Perhaps my cynicism is way too obtuse, or my imagination too far afield from reality...

There are three football teams in California. The NFL wants a fourth to satisfy the demand. Traumatic brain injury leading to dementia and Alzheimers has been scientifically and medically correlated and those diseases are very, very expensive over the lifetime of the sufferer...

Los Angeles will finally get its team...

I got a laugh from the audience at a recent panel when I observed, "workers' compensation is a political construct that obfuscates medical science in order to achieve a financial goal."

It's not a laughing matter.

This is one current example of how the Grand Bargain gets altered.

Neuropsychology and QMEs

I think my first real experience with traumatic brain injury was when I was about 8 years old. My younger brother and I were having a rock fight because that's what we did when the parents kicked us out of the house (which was all the time). My brother was across the street - a good 30 to 40 feet away. Neither of us ever figured we would actually hit each other... I had just finished my shot when, "WHAM," I took a stone right between the eyes. Lots of stars. Little bastard...

But my experience with TBI didn't stop there, because I was an "active child" (okay, hyperactive, but at least my parents didn't put me on Ritalin, like my brother).

I was around 12 years old when, racing bicycles around my friend's yard, I lost traction around a corner and slammed my head against the asphalt. I was wearing a "helmet" but back then it was just a stupid piece of plastic with no polystyrene lining that didn't provide any force absorption. My glasses broke and I got an "asphalt tattoo" in the side of my face that I still sport. My head went "ding, ding, ding."

There were a couple more minor episodes of head trauma as I grew up but nothing notable, until law school.

During my first year in law school I had taken a bicycle ride from our rental in Trancas Canyon to Venice Beach. Along the way, in the big parking lot adjacent to Santa Monica Beach, I was pulling an epic wheelie on my highly modified, race ready, cruiser bike. My feet were strapped into the pedals, and of course I wore no helmet. I carried that wheelie for hundreds of yards, then over-spun and failed to feather the back brake in time, and looped it. WHAM! That one hurt, right on the back of the head.

That incident happened about 8:30 a.m. The next thing I remember (amnesia took away most of that day, though some memory of it did return) it was about 4 p.m., I was sitting on my bike in that same parking lot and my head hurt. I felt the back of my head with my hand and it was bloody. "Hmmm," I thought to myself, "this isn't good." I figured I'd better call home for someone to pick me up.

I pedaled over to the closest pay phone, and dialed, and dialed and dialed and dialed... I couldn't remember my phone number! I couldn't remember the names of my roommates to get directory assistance. I panicked. I just started punching the keypad hoping some pattern would emerge that would get me connected. Fortunately that worked, my roommate Lydia panicked as well, told me to stay put, and she got me an hour later and took me to the hospital for a couple of days in ICU.

Later that same first year of law school I was surfing Zuma Beach before class - it was going off! Big, deep, shore-break tubes with perfect shape. Spicoli had nothing on me! I slipped into a barrel, and the curtains came down - next thing I know I'm spitting sand out, my board had a huge, head-shaped ding in it, and my ears were ringing like I was a General Telephone appliance.

I sat on the beach for quite a while after that because I couldn't focus, and my head really hurt. I remembered I had class: Contracts with Professor Keyes, who was nearly identical in looks and demeanor as John Houseman's character in Paper Chase. I was late! Don't ever, ever be late to Keyes' class!!! I raced to school, and in retrospect I shouldn't have been racing anywhere, let alone driving.

Class had been in session a good 10 minutes before I walked into the classroom, and when I did all 200 pairs of eyes in the lecture hall, including Professor Keyes, were on me. Gulp... Miraculously, although the entire class halted, Keyes didn't call on, or otherwise embarrass me. I found my seat, next to my good buddy and eventual roommate, ET. He was laughing at me when I said, "Dude, take notes for me. I'm all F'd up..." But ET wouldn't stop laughing.

"What's so funny dude?" Turns out not only did I have sand all over my face and head still, but I even had seaweed hanging off my head.

There's plenty more head injury stories where those came from, unfortunately, or fortunately, if someone wants to talk to me about TBI because I have a lot of personal experience!

One of the very few medical specialties that knows how TBI works and affects people is neuropsychology - the interaction of brain malfunction on cognition and behavior - it is the only specialty that knows how to objectively assess for cognitive impairment.

There is controversy over whether neuropsychologists should be available as a separate sub-specialty in the California Qualified Medical Examiner selection process. The Division of Workers' Compensation is removing the specialty as a separate Qualified Medical Examiner selection choice, but there is a bill pending in the legislature (AB 1542, Mathis, R-Visalia), that has passed virtually unanimously through the process, that would ensure neuropsychologists would remain available as a QME choice.

For more than 20 years, injured workers and their attorneys have been able to designate the neuropsychology specialty when requesting a QME panel. But that changes tomorrow, Sept. 1, under rules the Division of Workers' Compensation adopted on Aug. 12.

The regulations merge neuropsychology with psychology. Neuropsychologists will still be available as agreed medical evaluators, and they will be allowed to serve as QMEs, but getting a panel of neuropsychologists will be by sheer chance because they will not be separately designated.

The DWC said in its Initial Statement of Reasons published in March, when it introduced the proposed rule changes, that it was eliminating the designation because the Medical Board of California does not recognize clinical neuropsychology as a specialty.

The DWC announced its intent to adopt those rules on July 21, after AB 1542 was already passed unanimously by two committees in the Assembly as well as the full Assembly itself. The Assembly voted 79-0 to pass AB 1542 on July 16. There is no indication in any bill analyses that the DIR was opposed to the bill at that time.

But five days later, the DWC said it would adopt the rules eliminating the neuropsychology designation despite the pending bill.

And a week after that, DIR Director Christine Baker wrote a letter to Assemblyman Devon Mathis, R-Visalia, that the administration was opposed to the bill he co-authored with Assemblyman Ken Cooley, D-Rancho Cordova because the administration is concerned "the California Board of Psychology does not recognize neuropsychology as a subspecialty in psychology."

However, the California Board of Psychology defers specialty recognitions to the American Psychological Association, a national organization that certifies neuropsychology specialists. As a matter of fact, Neuropsychology was the first specialty to be individually and formally recognized by the American Psychological Association.

There is also an umbrella board certification group, the American Board of Professional Psychology, that recognizes neuropsychology as a unique specialty.

And, while plenty of other specialties could involve expertise, neuropsychology is the only area of expertise which allows for the objective assessment of cognitive impairment, according to folks I know in the field.

Noting the curious timing of the regulatory change, and the apparent attempt to have regulation trump legislation, Mathis wrote to Thomas Dyer, chief deputy legislative secretary in the governor's office, that, "It is immaterial that the AD may currently have a different policy."

Mathis points out in his letter that the Legislature has the power to create a workers' compensation system and workers' compensation policies, and that the administrative director can only adopt rules and regulations consistent with the policies set forth by lawmakers.

By the way, Mathis received the Purple Heart for a traumatic brain injury he sustained in 2008 while serving as part of a U.S. Army transportation unit in Iraq that was targeted by insurgents.

So I asked Christine Baker, Director of the Department of Industrial Relations, which oversees the DWC, what's up: Neuropsychology has been an option for 20 years, so why now? And what was the urgency in moving up the implementation date of the regulatory change from October to September? What's the big deal about amending DWC policy to provide for a nationally recognized accreditation rather than eliminate a choice?

Baker wanted to put the current controversy into historical context, indicating that any timing relative to AB 1542 was coincidental.

Baker explained that before her time as Director, in 2009, the overall QME regulatory process was reviewed and the DWC decided that it would be best to only authorize for QMEs specialties that were recognized by California medical boards. This was when chiropractic was, frankly, running amok in California. Consequently a large number of subspecialties not recognized by state boards were eliminated.

Baker said that neuropsychology was left in by error.

Then in April 2015, the division moved to automate the QME panel process. Since this is a state agency that move required regulatory action to implement. Consequently, the division decided to clean up the QME process to make it consistent with existing policy, which meant removing neuropsychology as a subspecialty.

Baker said it was at that point that parties interested in the issue went to the legislature.

In response to my question about limiting access to examiners who were particularly qualified to deal with TBI and other cognitive challenging injuries and disabilities, Baker said she thinks that in fact the move will provide better access to the public for the right kind of doctor; if we went by the legislative recommendation then only 6 QMEs would be qualified by the American Medical Association, and only 12 by other boards, for a total of only 18 QMEs total, as compared to 157 QME psychologists in total.

And if the California Board of Psychology wants to recognize neuropsychology as a specialty, then that would be a different matter.

Baker also argued that the treating doctor or a panel QME can request neuropsychology testing and interpretation when necessary so there should be no issue in making determinations on cognitive impairment; the parties need to ensure that the evaluating QME makes the request for testing when appropriate.

And, or course, nothing prohibits going to a neuropsychological Agreed Medical Examiner.

According to the analysis prepared for the Assembly Appropriations Committee, any costs related to the bill would be minor and absorbable. The Senate Appropriations Committee did not prepare an analysis of the measure.

So where do I stand? What do I make of this controversy?

At first I thought that maybe some powerful interest groups were trying to limit exposure to TBI disability claims, like perhaps the NFL. I think my imagination, however, was out of control; clearly that conspiracy theory doesn't play out well.

Maybe the numerous TBIs that I've experienced have denigrated my cognitive capacities. That is certainly a plausible theory, because after hearing all the arguments, reading the bill text, understanding the positions, I still don't get it ...

Frankly, I don't think it matters one hoot whether, or not, neuropsychology is an option in the QME panel selection process. It would be nice to get the right doctor at the right time for the right person and reason - but that's a crap shoot anyhow in the present system with or without sub-specialties.

In truth, this whole affair is looking at the finger that is pointing at the moon, rather than at the moon itself. We have a bigger mission to accomplish.

******CORRECTION******

The APA formally recognized the specialty of neuropsychology, but they do not certify specialists in neuropsychology or any other specialty.

Super Bowl of Head Trauma

In my opinion (which of course is all you get in this blog), yesterday's Super Bowl was one of the very best.

Back and forth scoring, miraculous plays, nail biting suspense, and last second turn of events - all made this one of the most dramatic and entertaining football events of all time.

And of course I was thinking workers' compensation the whole time, particularly after Seattle Seahawks' Chris Avril was taken off the field and diagnosed with a concussion, which in the latest National Football League head trauma guidelines, means that he is not to return to the field, even for post game interview questions.

What I missed was that New England Patriot's receiver Julia Edelman also took a big hit to the head, but remained in the game even though there was plenty of speculation on the sidelines that he too had his bells loudly rung.

Dave Birkett of the Detroit Free Press tweeted that he could hear "independent medical doctors" in the press box radioing down to the sideline that Edelman should be checked for concussion.

NFL's published protocol would support this observation, as the NFL requires and "eye in the sky" looking for potential concussion issues.

"Players who are suspected of suffering a concussion are assessed by their team's medical staff. The team physician first reviews a six-item checklist outlining findings that necessitate a player's immediate removal from the game," according to the protocol.

Another report said that an observer at the game claimed he saw Edelman checked quickly on the sidelines, but that it likely did not conform to established NFL protocol because a full test should take 8 to 12 minutes, but shortly after the hit Edelman remained in the game to score the go-ahead touchdown.

It may be that the employer in this situation found a "loophole" in the protocol - if the player is not removed from the game, then the protocol doesn't come into play.

New England offensive coordinator Josh McDaniels said, "This is typical of Julian, too — fighting the entire four quarters, physical. Getting knocked down numerous times and taking a bunch of big hits. He just keeps playing and playing and playing."

Edelman had missed the final two games of the regular season with a concussion.

The NFL over the past couple of years has worked hard to reduce its liability exposure for head trauma cases arising out of and in the course of employment.

Law suits were brought against the league and the teams, and the NFL sued its insurance companies for not providing coverage.

Ultimately the league settled the head trauma cases with a set aside fund that is debatably adequate to pay for these injuries, and legislation sponsored around the nation minimizing jurisdictional selection for workers' compensation benefits.

So, the difference between Avril and Edelman seems to be that Avril was diagnosed with a concussion. Edelman wasn't.

That proved prophetic for New England, as Edelman made a reception that set up New England for the game winning touchdown.

Would the outcome of the game have been different if Edelman was removed? We won't know.

And we may never know if in fact Edelman did have a concussion.

Two different teams, two different employers, two different players, all under the same "regulations" that get interpreted differently.

NFL Suits Bring Awareness

A new study on football players shows why the National Football League, and other professional sports, have been so active in workers' compensation to limit their exposure.

According to a paper published by the Journal of the American Medical Association last week, there is a relationship between playing football and having a smaller hippocampus.

The hippocampus is a part of the brain which is associated with memory - sometimes called the memory center.

The study followed collegiate football players who had a history of concussions and compared the population with football players who had no such history, and a control group of people who have never played football or soccer.

The results according to the researchers are remarkable: college football players with a history of concussions had "significantly" smaller hippocampus than the control groups, by up to three quarters the size of the non-football control group.

And the hippocampus of football players lacking a concussion history were also markedly smaller than the non-football control group, about five-sixths the size of the non-football control group.

In addition, there was a correlation between years on the gridiron and slower reaction time on tests.

What is different about this study from earlier research on brain trauma in football players is that this is the first to study relatively young athletes - collegiate players. Prior studies focused on middle-aged or older populations.

What this means is that the damage to the brain starts at a young age and likely with less relative exposure than previously thought.

The working theory by doctors and researchers is that football, and other contact-type sports like hockey, induce an inflammatory reaction that might cause cells in the hippocampus to rev into an excited state, and eventually die.

NFL suits bring attention to work place safety

More importantly to workers' compensation is that the study supports a working theory of injury that is recognized in only a few states, most notably California, to the chagrin of those with conservative views on injury mechanisms: that cumulative trauma is a real medical risk and not just a contrived legal concept.

Albeit, the study populations were small - only 25 people in each category - but the statistical relationship from such a small population should be of concern.

I have been highly critical of professional sport's jurisdictional limitations in workers' compensation legislation, and it seems that their lobbyists and supporters may have had some foresight in doing so - the big argument for AB 1309 was that California's liberal worker protection laws were being abused by out-of-state professional athletes because it is one of the very few states that recognizes the cumulative trauma source of injury.

While those with the checkbooks don't like it, it seems to me that California's law is actually in line with the science - that cumulative trauma is real, can be measured, and can result in significant, life long disability.

There are quite a few who take issue with out of state employees using California to process claims that no other state will recognize - but that's not the issue.

The issue is that the legal theory of cumulative trauma actually has some scientific merit - it's evidence based!

I'm not saying that ALL cumulative trauma claims are real. Certainly that can't be said for ANY injury. But naysayers who doubt the science need a reality check.

At least the NFL is prepared to set up a trust fund for brain injured athletes, though frankly I don't think that the $765 million is sufficient to really take care of athletes whose loss of memory is going to impair their ability to make a living after their sports careers end.

One of the issues with that pending settlement is that those who do not have a history of concussions or milder forms of dementia would not receive payouts – they would only get tests that would help doctors monitor their health and assess whether they might be eligible for payouts in the future.

And if the NFL didn't have enough labor relations issues arising out of work injuries, yesterday the Associated Press reported that a group of retired players have brought suit, again seeking class action status, against the league for either intentionally obtaining and dispensing drugs illegally to players, or being so negligent in the action as to amount to a gross abuse.

According to the story, players were not told about broken bones or other serious injuries, and were placed back on the gridiron with drugs dispensed without physician's orders or oversight and without following Food and Drug Administration protocol and regulations, sometimes for years on end.

Drugs allegedly included pain killers, anti-inflammatories, and other highly regulated pharmaceuticals. The suit says that the league actively concealed from players the extent of their injuries, the nature and risks of the drugs being provided, and that they were sent back out on to the field with serious medical conditions without being told of the injuries.

Keith Van Horne, formerly of the Chicago Bears, said he was made to play on a broken leg. Bears quarterback Jim McMahon said he had a broken neck and ankle and was just given pain medication and "pushed back on to the field."

Trainers and doctors employed by teams allegedly failed to keep required records or explain side effects of the drugs dispensed.

The spat of lawsuits and push back by the NFL in the guise of legislative activity may be viewed as meddlesome, or perhaps exploitative by lawyers bullying the league out of money, but I see this as welcome acknowledgement by anyone who follows sports that it is a job.

Professional athletes provide a service, entertainment, at the direction and control of an entity that makes money off of such service - and if the evidence demonstrates that there is injurious exposure that results in long term disability in the employees then the risk of such hazard needs to be absorbed by the employer.

Perhaps the cost of that risk gets passed along to the consumer in various forms of higher ticket prices or restricted television contracts, but that's the economy - we decided a hundred years ago that people who get hurt at work should be taken care of.

Certainly the league will argue that the player's complaints should be the sole purview of workers' compensation laws, and the players will argue that such remedies are no longer available due to the intentional concealment of known risks and outcomes.

The positive aspect of all of the attacks on the NFL and other professional sports leagues is the awareness these suits bring to the masses about the potential of work injuries and death.

Most workers don't think about workers' compensation, how it works and the affects the system will have on their lives until they get hurt at work - then it's too late.

Most employers don't think about workers' compensation, and the trauma the system can induce to a business until an employee makes a claim - then it's too late.

Perhaps a few more than the small percentage of aware workers and employers will become a little more educated on work safety, injury prevention and the affective workers' compensation system, and become more proactive as a result.

Cheerleaders Are Employees

Professional sports, and in particular, the NFL have brazenly scoffed at employment laws for years and years.

Then the players unionized and started pressing for greater remuneration for the profits they were delivering to team and league owners.

Still, when backed into a corner (head injury suits by players) not only did the NFL escape any real financial consequences with a questionable settlement after years of denial in spite of their own research, but the league has sponsored workers' compensation and other employment laws that deny players any real protection for their futures - when these injuries finally manifest to significantly disabling degrees.

And the league knows it can get away with it - all one need do is read the public comments by the ignorant fan base when stories are told about players who seek compensation for their injuries.

"They knew what they were getting into," "they are paid gobs of money," - all the same old tired excuses that employers used for years to defeat attempts at fair labor laws.

Right - of course the tone changes when one knows what they are getting into when going to work on an oil platform, or working as a roofer, a firefighter or police officer.

The glorification of sports entertainment and the people employed to provide that entertainment on a large scale is no different than, facetiously of course, glorifying coal mining, or truck driving, or any other hazardous occupation...

The extent to which professional sports exploits its labor is highlighted by the recent spat of NFL cheerleaders suing their teams for wage and other employment violations.

The bottom line allegations to these law suits is that the teams didn't pay these cheerleaders for all of the time they were required to work. They allege that when all of the time is tallied up working under the direction and control of the team they were making a couple of dollars an hour.

The teams have responded, basically, that these women were independent contractors and were "volunteering" for the job.

Well, in most states as measured by workers' compensation laws (and other employment laws) the argument that the cheerleaders signed a piece of paper stating that they were independent contractors doesn't hold up very well.

An independent contractor has her own tools, shows up when she wants to, and delivers a final product or service generally not subject to the direction and control of the employer.

By contrast professional cheerleaders must wear uniforms, had to show up for practices hours at a time or make public appearances at the direction and control of the team cheerleader "coach" and undergo "jiggle tests" among other conditions of their employment.

Forget that a professional cheerleader may be injured on the job - NFL teams calling cheerleaders independent contractors are engaged in what is often decried as fraud: misclassification of workers.

We know that employer misclassification of their work force, whether intentional or not, is a major issue because it puts more pressure on the rest of the work force through employer premium to make up for the shortfall.

Not to mention states that collect premium taxes on work comp policies, assuming correct classification of workers, getting cheated out of revenue.

The trend of professional cheerleader lawsuits has more implications than just back pay.

The way the NFL has purchased legislation I would not be surprised to start seeing proposed laws to redefine what a cheerleader is and limit the availability of employment law protections to them too.

These women are hired to provide entertainment and are a critical component to the entire NFL show (and other sports entertainment), and should be compensated and provided fair employment protections accordingly.

And teams should be paying for workers' compensation coverage for them.

The fact that these positions are glorified with public appearances, fleeting fame and television time is poor remuneration without legally justifiable correlation to labor law.

These cheerleaders provide uncompensated marketing for the teams (and this spans many sports - just look at all the beer company sponsored posters for various soccer clubs in America and other nations). You can bet they signed away any rights to the use of their individual likenesses as part of their "contracts."

It is amazing to me that even in 2014 in America we have such disparity in how workers are treated, and how much we tolerate such treatment (as long as it isn't "us").

What's even more amazing to me is that such chicanery occurs in an industry where, when one really gets down to it, there is very, very little competition.

It's about time professional sports are made to play by the same rules the rest of employing America plays by.

Stupor Bowl And The Numbers

The Super Bowl played out on national television yesterday and millions of people enjoyed (I think) the show (or at least the half time show), even though Denver lost the game on the very first play.

The day before former Miami Dolphins Super Bowl player, Richard Diana, who is now an orthopedic surgeon, had his op-ed published in the Los Angeles Times. While acknowledging that brain injuries are a huge problem in the NFL and has received deserved attention, Dr. Diana also brings about another sobering observation of these professional athletes:

"For every Tony Dorsett (the former Dallas Cowboy star reportedly diagnosed with degenerative brain disease), there is a roomful of less well-known players suffering from the consequences of joint trauma," he writes.

Citing a 2009 University of Michigan study of retired NFL players concluded that "the most striking difference between NFL retirees and the general population" is that the former players younger than 50 were nearly five times more likely to have arthritis than comparable men in the general population. Former players older than 50 have twice the rate of arthritis as their non-player peers.

Dr. Diana prescribes a number of lifestyle changes that the players (employees) themselves should be instigating after retiring from the game: dietary changes, exercise appropriate for arthritis, and other changes that these folks need to be re-trained to do as a routine basis for their lives.

"The NFL knows that its supersized players are at high risk of developing arthritis. Now it should make sure they are educated about the types of diet and exercise that could prevent it or make it less severe," he says.

"The health problems of all athletes, pro and amateur, should be of national concern. But the evolving treatments for osteoarthritis are encouraging. Moreover, we don't need to change the rules of the game to have a major effect — just the habits of those who played it so well."

How much of Dr. Diana's prescription is applicable to the general work world? Isn't this what the occupational health experts have been saying for years, albeit into the vast void of the information dumping grounds?

In another article published that same date in the LA Times it was disclosed that the deadline for filing continuous trauma claims against NFL teams resulted in over 1,000 new claims being submitted.

In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers' compensation data found.

The Times says that most of the claims were brought by players who never played for a California team: "they filed claims based on repetitive injuries they say were sustained in part during road games played in the state."

The Times says that the months long battle over the new California law created much more attention to the issue and alerted players and their attorneys to make sure they were not prohibited from seeking relief in the future.

Three quarter of the NFL claims alleged some brain or head injury. 90% of pro hockey claims and about half of baseball player claims made similar claims.

The Times said that, overall, between February, when AB 1309 was introduced, and Sept. 15, a total of 1,980 athlete claims were filed in California — compared to 1,170 in all of 2012. More claims were filed in that nine-month period than any other year, by far, the analysis found.

In the six weeks following the implementation date of AB 1309, only 49 filings from all sports came in - so the law is having its intended effect to reduce the number of claims filed by minimizing the ability of professional athletes to obtain workers' compensation benefits.

I thought all of this was an interesting dichotomy to the hoopla of the Super Bowl - there is a disconnect between the entertainers (athletes) doing their jobs and the financial rewards that the game brings to the players, the owners, and American society at large.

According to NorthWestern University's Business Review, a 30-second commercial costs about $3.5 million (that was 2012 - Fox was charging $4 million for the Seahawks vs. Broncos game).

Gambling on the game is estimated to top $90 million.

The Super Bowl is the second biggest food consumption day of the year (Thanksgiving is first) with Americans spending between $50 million and $237 million on the various treats consumed.

The 68,000 seats in MetLife Stadium for the game ranged between $800 and $1,200 face value, though a lot of tickets get sold on the secondary market for an average of $4,000 a seat.

The hotels in the area were all sold out with some second and third tier hotels getting close to $2,000 a night and the better ones over $4,000 per night.

It's estimated that $11 billion is going to be spent on food, drinks, apparel and other accoutrements.

$11 billion ... that's just the side business.

I just don't see the cost of workers' compensation affecting the pricing of anything in this scenario.

According to Anthony Fontana who writes a business column for the content portion of Quicken Loans, the city that hosts the Super Bowl generally sees $150 million or so in additional revenues.

The International Business Times says that The NFL, while it oversees a more than $9.5 billion-a-year industry, is not a for-profit venture. It’s is a registered 501(c)(6) organization, a nonprofit status reserved for business leagues, chambers of commerce and the like. NFL teams make a profit; the NFL itself technically doesn’t.

Whether you believe the NFL Players Association of the league itself, the professional life span of a pro player is still obscenely short - the NFLPA says just over 3 years, and the NFL says over 6 years with first drafters going up to 9 years.

I still say there is a huge disconnect between the financial picture of professional sports, the employers, the entertainers (see the recent filing of an Oakland Raiderette alleging employment law violations) and the laws that all of us are used to for protection against employment risks.

AB 1309 is law now, and perhaps it will be challenged in the future (there was mention in the LA Times story that a constitutional challenge may be forthcoming); in my mind, though, that doesn't make it right. Society needs to chose whether it wants workers' compensation or not - no half-assed system that covers some people some of the time when it fits another's financial agenda...

Football, Common Law and Disruption

Yesterday I opined that disruptive social technology would one day result in the forever changing workers' compensation as we know it. I don't know how, and I don't know when, though I suspect we're in the midst of this disruption right now.

It just takes a little longer for disruption to occur to social systems due to entrenched interests.

Since the beginning of workers' compensation there has been this tension between compensable and non-compensable. There are times when either an employer or employee wants a claim to be compensable under the comp system, and it isn't; and there are times when an employer or employee doesn't want a claim to be compensable, and it is.

All of the recent cases, settlements and legislation in the professional sports industry typifies the pressures underlying this conflict.

As you know the National Football League entered into an historic settlement with the player's union to resolve claims of traumatic head injury, finally acknowledging that perhaps the game may in fact lead to serious deterioration in brain function over time.

And the NFL has been instrumental in getting laws passed around the country to restrict recognition of trans-jurisdictional adjudication and continuing trauma claims.

So in one instance the NFL capitulated to the fact that there was no workers' compensation protection for the brain injury claims against it, and in the other instance it was worked diligently to create a web against such liability in the future.

The one thing that these actions fail to fully account for is that workers' compensation is not a natural creature; i.e. it did not get its genesis in what is known as The Common Law.

Common law, as we learn in law school, is largely based on social norms handed down through the centuries from our forefathers in a distant land. The Common Law recognized how society worked and was built upon case law - the recordation of facts in a case, application of social logic to that case, and publication of the result or decision.

In other words, case law is what created The Common Law, because there is no way to predict all of the myriad of factual scenarios that might comprise a "case" or claim.

Bringing this around the block, just because the NFL resolved claims against it for instigating a mode of employment that allegedly precipitates brain injury and pushed legislation to constrict the filing of workers' compensation claims doesn't mean that its members (i.e. the teams themselves) are in the clear.

Nor does it mean that the players aren't without remedy.

It simply takes someone with enough knowledge and skill to point this out and attorneys representing football players in Missouri are doing so.

Five former players for the Kansas City Chiefs are suing the professional football franchise for alleged brain injuries they suffered during their careers, jumping through a unique loophole in Missouri law that allows them to avoid workers' compensation exclusivity before it closes on Jan. 1.

Missouri allows employees to sue their employers directly for occupational diseases, something that was the product of legislative tinkering with the comp system some time ago at the bequest of employers who didn't think they should be paying for disease when the origin is not indisputable.

In 2005, state lawmakers amended the Missouri Workers' Compensation Act to narrow the definition of a compensable injury as being one that happens as a result of an "accident."

The state Supreme Court in 2009 construed this change as meaning that workers could recover under the common law for occupational disease claims because an occupational disease was not an "injury" under the act's newly limited definition.

Two of Missouri's three intermediate appellate courts have since issued decisions reiterating that injured workers could file civil suits for occupational diseases. The Western District Court of Appeals issued a decision in 2011 in the case of State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, and the Eastern District Court of Appeals came to a similar conclusion in the case of Amesquita et al. v. Gilster Mary-Lee Corp. on Sept. 10.

The plaintiffs assert that the Chiefs, as an employer, had a duty to its players to "keep abreast of the scientific developments relating to brain trauma which its employees were regularly exposed, and "to notify, inform and educate plaintiffs and the public of any potential long-term risks of repetitive head trauma."

Fair enough.

Again, workers' compensation is not a creature of natural law, and because it isn't the obliquity of its application will be challenged time and again where either the employer or the employee feels short in the bargain.

When this happens the nature of workers' compensation changes. Loopholes and exceptions are created. This is why we have swiss cheese law in workers' compensation.

These law suits are disruptive. They challenge the status quo.

These suits do not, by themselves, constitute the disruptive social technology, but I think they are the harbinger of things to come.

Just as workers' compensation itself was a disruptive social technology 100 years ago, challenges in the professional sports world are putting pressures on the current system that are provoking change.

To read the complaint, click here (subscription to WorkCompCentral required).

AB 1309 - Told You So

There's no surprise that California Governor Jerry Brown signed the National Football League's bill largely terminating workers' compensation benefits for nearly every football player that could ever make a claim, what with its draconian eligibility requirements and jurisdictional restrictions. I had predicted this bill would pass.

And it's no surprise that nobody cares.

Except Michael Hiltzik of the Los Angeles Times, who said yesterday that the NFL, “unabashedly misrepresented its effect to the soft-headed state legislators who sponsored and passed it.”

The NFL is incredibly powerful because it is the biggest, most profitable sports franchise in the world. The NFL means jobs, means taxes, means entertainment.

But most of all, the NFL means money - lots of money. Last season's estimated revenues were reported to be $9.5 billion, about 25% more than Major League Baseball. Forbes values the average NFL franchise at $1.17 billion.

I don't know what the residual economy is swirling around the NFL - sports betting, patronization of bars, travel, workers' compensation insurance premiums, etc. - but I'm sure it's billions more.

Dr. Bennett Omalu, who was the first physician to identify accurately the incredible increase in Chronic Traumatic Encephalopathy in professional football players says in the Public Broadcasting System's documentary, "League of Denial: The NFL's Concussion Crisis":

"I wish I never met Mike Webster [Webster was a former Steelers center and was the first player where the NFL, through its retirement board, acknowledge any link between football and brain trauma]. CTE has driven me into the politics of science, the politics of the NFL. You can't go against the NFL. They will squash you."

And that is really what this new law is all about - it is the culmination of a long drive to the goal by the NFL using the hefty might of its offensive line to bully, lie, intimidate and if there's too much resistance, just plow over whoever gets in the way.

Because the NFL knows that mostly everybody doesn't care about the athletes, so why should they?

For instance, a research group from Boston University published an independent report linking CTE to football and presented their research at the 2009 Super Bowl. No one showed up.

There is no rational reason for the discrimination reflected in AB 1309 other than the well planned "settlement" the league entered into with the player's union to pay for, over time, concussive brain disorders - something the league for many, many years completely disputed, even after their own study linked player's dramatic probability of brain injury. And I argue that settlement is inadequate.

Angie Wei, legislative director of the California Labor Federation and more famous to us in the work comp industry as the person who negotiated SB 863 on the Labor side of the table, told the Los Angeles Times, "This is a terrible precedent for players and a more dangerous precedent for all workers."

I was confronted at the California Workers' Compensation and Risk Conference last week by a high level insurance executive, who did not wish to be quoted, with claims administration oversight authority of his company's professional sports exposure about my stance against AB 1309. His essential argument was that the applicant's bar had taken the liberality of California work comp too far with professional players and that carriers were paying for claims decades old made by players with little connection to California.

I can sympathize with that argument, and likely wouldn't have a problem IF a) other states took care of their own players (and in my opinion they don't) AND b) AB 1309 didn't discriminate against the entertainers - the people for whom audiences actually pay to see - and who for the most part have very little earnings from their professional careers. After all, the bill covers ALL professionals in football, baseball, hockey, basketball and hockey.

For instance, minor league professional baseball players starts their first year at a MAXIMUM salary of $850 per month. If you get up to triple-A ball, then you can get $2,150 per month. In hockey a minor league player might make up to $39,000 per year, but it is pro-rated daily over the regular season. These aren't highly paid athletes, and now they are largely left with no remedy for the injuries incurred doing their jobs.

As noted in the Times article, the average professional life of a football player is only 4 years. During those 4 years one needs to make enough money to pay for his own medical insurance since the NFL doesn't provide such coverage post retirement.

The bill would cover Arena Football players who make a whopping $500 per game, or maybe $12,000 per year if they play all 18 games with bonuses and incentives.

Athletes in the National Basketball Association's D-league, or Development league, averaged between $12,000 and $24,000 per year.

One way to get the NFL to pay for the medical care needed by its employees who are the ones responsible for the $9.5 billion/year juggernaut we see on television is through workers' compensation.

But NO - instead now the rest of the nation gets to pay, even more, for its entertainment through social security, Medicare and other social programs.

Just another way for Big Business to stick it to the Little Guy, and the Little Guys just bends over - just read the comments to the LA Times article; there's no comprehension of workers' compensation, of athlete pay, or of league profits. People just want their football.

The NFL knows that America is populated mostly by the ignorant and that it has the most powerful marketing machine known to corporate America. The league's marketers are true professionals, turning a negative (unwanted attention to head trauma) and spinning it with the Head Health Initiative suckering GE into sponsoring it with a $60 million deal.

Dr. Omalu is right. You can't go against the NFL. Even Jerry Brown, probably one of the most independent politicians to run California in a long time, is a sucker for football.

The question in my mind is how far will this go? How many other special interest industries will see what the NFL accomplished and seek the demise of certain provisions of California workers' compensation law that cover and assist the working people of this state?

Time will tell of course. The door is opened however and I don't see it getting shut any time soon. Until some really smart plaintiff's lawyer figures out how to sue a team civilly ...

Don't Be A Professional Athelete

Sitting on the desk of California Governor Jerry Brown, among other legislation sent his way this month, is the NFL Bill, AB 1309, by Assemblyman Henry Perea, D-Fresno.

I have come out against this bill since the beginning and I know that my rants here won't make a rat's arse difference to the Governor; he's going to sign it because my words are not as powerful as the NFL lobby.

But that won't preclude me from pointing out what a travesty this piece of thoughtless legislation is, and how it not only will deny professional athletes from rightly deserved workers' compensation, but likely will increase the cost of providing coverage because of the litigation that is going to follow.

The reason is that professional athletes move around a lot, and there is always going to be a debate about what happened when and where.

Not only that, but in order to preserve rights in California, athletes are going to file claims much earlier, and more frequently, to ensure they are protected against the new statute of limitations in the bill.

AB 1309 provides that an athlete who spent fewer than 20% of his "duty days" in California in the year preceding an on-the-field injury, must file a claim in his home state. Additionally, the bill says an athlete must spend at least 20% of his career duty days or two years for a California team, and spend fewer than seven years with an out-of-state team to file such an occupational disease or cumulative trauma claim in California.

Our report on the bill this morning includes vignettes of popular athletes that would create such litigation over these restrictions after a review of a database of professional athlete work comp claims in California published by the Los Angeles Times.

Basketball star Bill Walton would not have been allowed to file his two cumulative trauma claims that are included in the L.A. Times database. While in college at UCLA, Walton led the Bruins to two national championships. But because of injuries he saw limited action while on the roster for the San Diego / Los Angeles Clippers from 1979 to 1985, after playing or the Portland Trail Blazers from 1974 to 1978, and for the Boston Celtics from 1985 to 1987.

Walton's case would exceed the requirement to play fewer than seven years for an out-of-state team despite the fact that the end of his career was in California.

Walton has filed 14 claims for specific injuries reflected in the L.A. Times list of about 800 NBA players who have filed claims in California. Would Walton be excluded from those claims because of the "duty day" requirement?

Bo Jackson, the cross-sport wonder, played football for the Los Angeles Raiders and baseball for the Kansas City Royals. He dislocated his hip in 1990 during a playoff game in the Los Angeles Memorial Coliseum ending his professional football career after just four years.

At the time, he had played five seasons for the Royals and then went on to play three years for the Chicago White Sox and another season for the California Angels.

The L.A. Times database shows Jackson filed a cumulative trauma claim against the Chicago White Sox and another claim against the Los Angeles Angels.

Because Jackson played baseball for eight years for teams outside of California, Jackson would be prohibited from filing a claim in California, even though his last year in baseball was in California and even though his football career ended with his injury in Los Angeles.

The Los Angeles Times points out other absurd results under the bill because of the perception that professional athletes earn big money - that's not the case for most athletes covered by AB 1309.

For instance, hockey player David Cousineau, who skated for teams such as the Las Vegas Wranglers, Phoenix Roadrunners and Long Beach Ice Dogs, earned just $650 a week toward the end of his five-year career.

Though he never made the NHL, The LA Times database reflects a string of traumas to his head, shoulders, back and legs. In 2010, Cousineau settled claims against his last two teams for $68,000 by compromise and release thus agreeing to cover his own medical expenses for these injuries.

The professional sports franchises are banking that the general public doesn't know or care about the athletes; they want their entertainment and they want it fast, furious, competitive. The more damage the better.

The only way to make an impact against what I feel is not only poor legislation and a draconian law is for the player's unions to organize strikes and refuse to play. Whether the unions have the resources, and the support of their members, to do that is questionable.

Athletes generally tend to be in a state of denial with regard to injuries - that's built into their mentality through years of training while young, supple, and able to quickly recover.

I think it's a forgone conclusion that Brown will sign AB 1309. I also think it's foolish for anyone to be a professional athlete in football, baseball, basketball, hockey or soccer.

What Will Get Brown's Signature

There are 2 weeks left in the 2013 California legislative session with a few bills pending relating to workers' compensation. Here's my list of what's going to be sent to the Governor's desk, and will obtain his signature.

AB 1373, by Speaker John A. Perez, D-Los Angeles, would double to 480 weeks the current 240-week window in which dependents of public safety officers can seek benefits for deaths caused by cancer, tuberculosis, methicillin-resistant Staphylococcus aureus or a blood-borne infectious disease.

This bill will get out of the legislature - it passed the Appropriations Committee 5-2 on Friday despite lack of a cost projection - but Gov. Brown will not sign it. He vetoed a similar measure last year for lack of cost projections.

AB 454, by Roger Dickinson, D-Sacramento, would require that indemnity benefits for a worker injured on a project subject to federal, state or city prevailing wage requirements be calculated at the prevailing wage rate, regardless of what the worker actually was paid.

This bill is backed by powerful labor unions and building/contracting lobbies to "even the playing field" against contractors who engage in unfair competition tactics with their employees on government projects. I give it an 80% chance of getting Gov. Brown's signature to help dissuade unfair competition.

AB 1309, by Henry Perea, D-Fresno, would impose restrictions on cumulative trauma and occupational disease claims by professional athletes in addition to imposing tighter jurisdictional requirements on claims made by football, baseball, hockey and basketball players.

The NFL's unprecedented settlement of the class action brain injury lawsuit in federal court last week was just a warmer for this bill - an obstacle that could have derailed NFL's ambitions because AB 1309 could be seen as an attempt to skirt responsibility for the league's players.

Consequently, I'm calling AB 1309 a slam dunk, a touch down, a goal, a home run; the Governor has pen in hand ready to sign.

And Los Angeles will thus eventually get a football team...

Senate Bill 258, a bill by Sen. Ted Lieu, D-Torrance is an SB 863 clean up bill that clarifies the prohibition against selling liens unless the service provider has gone out of business to apply only to liens that were sold after the reform bill took effect on Jan. 1, 2013. In addition the bill would require that all seven members of the Workers’ Compensation Appeals Board be experienced attorneys.

An amendment to the bill posted on the Legislature’s website on Friday clarifies that the employer or carrier is required to reimburse a lien claimant for the $150 filing fee if the claimant prevails.

I'm also giving this bill a high probability of signature by the Governor, assuming it can get out of the Legislature without additional amendment that would require debate.

SB 375 corrects erroneous references in SB 863 to sections of the Government Code and the Labor Code. The bill would also replace a reference to “administrative hearing” interpreters to “medical examination” interpreters. This is an obvious candidate for Brown's pen.

Brown has already signed SB 527, by Marty Block, D-San Diego, that would give full-time lifeguards in San Diego the same enhanced temporary disability benefits as other safety officers and another to simplify pharmacy billing requirements.

And Brown has already signed SB 146 by Ricardo Lara, D-Long Beach, which eliminates the requirement to include a copy of an original prescription when submitting invoices to work comp payers that got in the way of submitting bills electronically.

The 2013 legislative session ends on Sept. 13.

The Sensitivity of Exclusive Remedy

I got a LinkedIn post notification yesterday that gave me some pause for concern...brief pause.

The LinkedIn post referenced an article that was authored in large part to promote a company's product for baseline testing, but used the threat of the possible demise of workers' compensation's exclusive remedy in the threat of several RICO lawsuits that had been making the rounds in the country.

RICO, as you may know, is the Racketeer Influenced and Corrupt Organizations Act and was made law way back when I was a young lawyer so that government and private parties could take gangsters to court and civilly remove the fruits of their corruption.

But the law was broadly drafted and soon was being used against "ordinary" citizens and businesses who ran afoul of its conscriptions.

The article said that the exclusive remedy of workers' compensation faced compromise because of the ability to pierce that protection where it could be shown that there was collusion between, for example, an employer, a carrier and a physician to deny benefits to a claimant.

Curiously, and quite surprisingly, it was announced yesterday that the National Football League has entered into a huge settlement to provide compensation to players that have demonstrated evidence of brain injury.

Under the terms of the proposed agreement between the parties, $675 million will go to the players and their families if the player presents medical evidence of severe cognitive impairment, dementia, Alzheimer's, or Lou Gehrig's disease.

Any of the league's approximately 18,000 former players would be eligible for an award, but the size of that award will depend upon the player's specific diagnosis, as well as other factors, including the player's age, the number of seasons he played in the NFL, and other relevant medical conditions.

If a retired player's condition worsens over time, he can apply for a supplemental payment.

The settlement also allocates $10 million toward medical, safety, and injury-prevention research. A portion of this amount will be used to support joint efforts by the NFL and retired NFL players to promote education and safety initiatives in youth football.

The rest of the money will go towards the cost of administering baseline medical exams to the players, legal fees, and the costs of administering the settlement.

I thought this was entirely interesting.

So what gives? Is the exclusive remedy of workers' compensation dying?

I don't think so. There have always been exceptions.

The RICO cases basically deal with criminal conduct - if parties to workers' compensation claims collude illegally to deny benefits then certainly they can not escape penalty by hiding under the veil of exclusive remedy. That has been the state of the law for some time. RICO or no RICO.

The NFL settlement could be more problematic relative to exclusive remedy, except for the fact that the NFL is NOT the employer of the players. Workers' compensation applies only to the teams that employ the players.

So there is no exclusive remedy threat there either.

I think that what these two stories have in common is that there are still many pitfalls for business other than workers' compensation. While work comp is a concern to business, there are a multitude of larger, more serious risks to manage that some workers' compensation issues.

The NFL settled the case before the discovery process, which in my mind is quite telling. Three quarters of a billion dollars committed before any interrogatories, any medical testimony, any reports, any depositions?

Perhaps the NFL and its teams were afraid of some RICO action themselves.

Or perhaps the NFL doesn't want to wait to find out what a jury thinks.

Regardless, from my vantage point, the exclusive remedy of workers' compensation has become stronger over the years.

While it seems that the legislative trend across the nation is to make qualification for workers' compensation benefits more difficult, once a claim gets into the work comp system, or it is determined that it should have been in the work comp system, it stays there.

The cost of workers' compensation is always going to generate debate, and there will always be friction due to the many moving parts.

By the same token, the premium dollar buys a good amount of risk management - the risk of getting side blinded by a big negligence suit is hugely ameliorated.

We tweak work comp from time to time seeking to curb abuses, rein in certain costs, smooth out the trends - but we can count on the century-long concept of exclusive remedy to stay the course.

Exclusive remedy isn't dying. We're just more sensitive to it now.