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 ...
Showing posts sorted by relevance for query nfl. Sort by date Show all posts
Showing posts sorted by relevance for query nfl. Sort by date Show all posts
Thursday, October 10, 2013
Wednesday, May 30, 2012
NFL CTE Cases Uniquely American
As the various lawsuits concerning allegations of misrepresentation and violation of safety protocol against the National Football League (NFL) progress, one element that is going to provide some very interesting legal fodder is whether the teams themselves, and their carriers, will be able to subrogate for workers' compensation benefits against the NFL suits.
The cases are maturing. In May, 558 players filed 13 complaints in federal courts in Georgia, Louisiana, Pennsylvania and Texas and in district courts in Los Angeles and Fulton, Ga. More than 2,200 former players have filed 80 lawsuits against the league since Aug. 17, 2011.
The basic allegations in the lawsuits say the NFL withheld from players evidence linking multiple concussions to chronic traumatic encephalopathy (CTE), a progressive and degenerative disease that causes headaches, dizziness, dementia, depression and possibly Alzheimer’s disease.
Certainly many of those players filed for and received workers' compensation benefits against their teams. The past several years have seen quite a bit of legal, legislative and public relations maneuvering by the NFL and the player's union concerning jurisdictional issues since many players preferred to use the loose jurisdictional rules of certain states, most notably California, to take advantage of more liberal laws - primarily concerning recognition of continuous trauma injuries.
Player's head injuries fall within that category.
The civil cases appear headed for consolidation and/or class certification status. On April 26, Anita Brody, a U.S. District judge in Philadelphia, ruled that plaintiffs must submit a master administrative complaint by June 8 compiling common statements in the growing number of lawsuits filed at the federal and state level against the NFL.
The timeline for managing this litigation in Philadelphia will take the master case through the balance of the year to get to the first ruling regarding consolidation and class status:
Someone with more expertise on NFL team workers' compensation policies will have to educate me here, but my guess is that most of these policies are high deductible policies meaning that the teams have quite a bit of subrogation potential in these cases and whether or not to join the suits is going to be more of a political decision between the owners rather than a legal decision.
But certainly the carriers for the teams have no obligation to the NFL, and the decision of whether or not to join in these suits to recover payments made in related workers' compensation claims is a more pure business decision.
Whether or not the teams can exert influence on their carriers presents an interesting ethical dilemma due to the inherent conflict of interest.
The NFL concussion cases are nothing dramatic in my opinion, and reach newsworthy status only because this country loves its football. If this were some other industry there would be hardly any notice at all.
Indeed some of the sports commentators have ridiculed the lawsuits and the publicity they are drawing, stating that the players knew they were getting into a dangerous, violent game and that they are paid well to do so - basically assumption of the risk.
For legal wonks though, this is a very interesting situation because the NFL is owned by its member teams setting up a closed network that can five rise to conflicts of interest such as this potential subrogation issue.
It will be a couple of years before this all gets sorted out. I suspect eventually the game of football is going to undergo some "reform" in both equipment and rules.
The cases are maturing. In May, 558 players filed 13 complaints in federal courts in Georgia, Louisiana, Pennsylvania and Texas and in district courts in Los Angeles and Fulton, Ga. More than 2,200 former players have filed 80 lawsuits against the league since Aug. 17, 2011.
The basic allegations in the lawsuits say the NFL withheld from players evidence linking multiple concussions to chronic traumatic encephalopathy (CTE), a progressive and degenerative disease that causes headaches, dizziness, dementia, depression and possibly Alzheimer’s disease.
Certainly many of those players filed for and received workers' compensation benefits against their teams. The past several years have seen quite a bit of legal, legislative and public relations maneuvering by the NFL and the player's union concerning jurisdictional issues since many players preferred to use the loose jurisdictional rules of certain states, most notably California, to take advantage of more liberal laws - primarily concerning recognition of continuous trauma injuries.
Player's head injuries fall within that category.
The civil cases appear headed for consolidation and/or class certification status. On April 26, Anita Brody, a U.S. District judge in Philadelphia, ruled that plaintiffs must submit a master administrative complaint by June 8 compiling common statements in the growing number of lawsuits filed at the federal and state level against the NFL.
The timeline for managing this litigation in Philadelphia will take the master case through the balance of the year to get to the first ruling regarding consolidation and class status:
- Plaintiffs must submit the master complaint by June 8.
- NFL and Riddell can file briefs on the master complaint by June 19.
- Motions to dismiss filed in response to the master complaint are due Aug. 9.
- Plaintiffs’ response to the motions to dismiss are due Oct. 10.
- Replies to plaintiffs’ motions are due Nov. 26.
Someone with more expertise on NFL team workers' compensation policies will have to educate me here, but my guess is that most of these policies are high deductible policies meaning that the teams have quite a bit of subrogation potential in these cases and whether or not to join the suits is going to be more of a political decision between the owners rather than a legal decision.
But certainly the carriers for the teams have no obligation to the NFL, and the decision of whether or not to join in these suits to recover payments made in related workers' compensation claims is a more pure business decision.
Whether or not the teams can exert influence on their carriers presents an interesting ethical dilemma due to the inherent conflict of interest.
The NFL concussion cases are nothing dramatic in my opinion, and reach newsworthy status only because this country loves its football. If this were some other industry there would be hardly any notice at all.
Indeed some of the sports commentators have ridiculed the lawsuits and the publicity they are drawing, stating that the players knew they were getting into a dangerous, violent game and that they are paid well to do so - basically assumption of the risk.
For legal wonks though, this is a very interesting situation because the NFL is owned by its member teams setting up a closed network that can five rise to conflicts of interest such as this potential subrogation issue.
It will be a couple of years before this all gets sorted out. I suspect eventually the game of football is going to undergo some "reform" in both equipment and rules.
In the meantime the uniquely American appeal of football extends to the legal playing field too.
Monday, February 3, 2014
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.
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...
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...
Monday, June 10, 2013
AB 1309 Fails the Common Sense Test
The California Society of Industrial Medicine and Surgery and the California Neurology Society have come out to formally oppose California Assembly Bill 1309.
AB 1309 is the professional sports athlete exclusion bill that would remove the ability of designated professional athletes in football, basketball, baseball and hockey from utilizing California's continuing trauma theory if the athlete can not prove sufficient contacts within the state, as prescribed by the bill.
The bill is promoted by Assembly Member Henry Perea (D-Fresno). Perea says the ability of professional athletes not based in California is a "loophole" in the state's workers' compensation laws. He is joined by Senator Ted W. Lieu (D-Torrance) as a principal co-author and Senator Mark Wyland (R-Escondido) who has also agreed to co-author the bill.
Perea says that AB 1309 "would set clear jurisdictional standards on claims from professional athletes and close the loophole that currently allows out-of-state players to file cumulative trauma claims in California, regardless of whether they played for a California team or ever actually entered a California field to play. It would also close the loophole that allows out-of-state athletes to place 100 percent of the cumulative trauma liability on California-based teams despite having played a minimal amount of time for that team – while playing for multiple non-California teams in subsequent years."
Perea says that the "loophole" fails the "common-sense test."
The irony is that AB 1309 itself fails the common-sense test.
First off, AB 1309 targets ONLY professional football players, hockey players, baseball players and basketball players. What about other professional athletes? How about motocross racers? What about jockeys? Why not professional cheerleaders? And why are the coaches, assistant coaches, managers and back office people still able to avail themselves of this "loophole"? All of these workers cross state lines and may file for benefits, including continuous trauma injuries, in California without restriction.
What is most despicable about this proposed law is that it is SO arbitrary and discriminatory.
The ONLY difference is that the pro athletes get REAL, life altering injuries - particularly football players that the NFL would just like to keep quiet so that this modern day version of the Roman gladiator entertainment factory remains anesthetically pleasing to the consumers so they will continue to purchase ridiculously priced tickets and support outsized television commercial contracts.
The single biggest threat to the NFL now is the growing recognition that the sport considerably shortens athletes' lives and contributes substantially to organic brain disease. Constant sustained head trauma is the single most life-altering injury these athletes face, and it is a tragedy that the NFL would like to keep away from the public the fact that so many end up with dementia, Alzheimers, Parkinson's and other serious maladies tied directly to continuously sustained brain trauma.
The argument for this ridiculous bill is that athletes rarely step into this state. That argument is absurd.
Every time a television broadcast of an NFL game occurs in California before MILLIONS of California based fans those athletes have stepped into this state.
Every time an NFL game is broadcast into the television sets of California fans to entertain the masses the NFL receives MILLIONS of dollars in television broadcast rights.
And the same can be said for every other state too.
The NFL has no problem taking revenue from broadcast rights where their employees are placed virtually into this state across millions of television sets, but apparently does not like to recognize the fact that the millions of dollars received in broadcast rights would not exist but for the fact that they are placing their athletes into California.
There is no difference between playing a game live or via television where the same net result is that millions of people contribute millions of dollars in revenue for that entertainment.
Forum conveniens is a long standing, time honored legal principal that should not be discounted. Just because California offers a legal remedy that other states don't recognize does not mean that it is out of line, out of touch, irresponsible, or wrong.
Just the opposite - California's long standing tradition of being non-traditional, thinking outside of the box, leading the way, has created the most resilient, most robust, most diverse economy of the United States and one of the most vigorous economies of the entire world.
Why would 38 million people live here otherwise, and why would California have the greatest concentration of wealth in the world? Because California does things differently and the state traditionally recognizes the contribution of working people regardless of their income, their status, their location, their domicile.
Perea says that "the bill would not limit the ability of professional athletes or any other worker to file for cumulative trauma benefits in their home state or principal state of employment."
Hey, that's a great argument ... NOT! Because no other state recognizes "cumulative trauma benefits" like California does; because no other state recognizes the contribution of PEOPLE, aka The Working Class to its economy (and yes, despite large salaries for very short careers, professional athletes are largely working people putting their bodies on the line for the entertainment of the masses).
If California politicians had ANY balls (and there aren't too many of them left in the legislature) then this state would set a precedence and tell the NFL, "No F*cking Legislation" that would alter this state's long standing tradition of recognizing that employers need to own up to their use of workers in hazardous occupations no matter where they live.
California's great economy is built on one simple fact: that as a world class economy we rely on the sweat equity of everyone that contributes.
When the NFL is in town (whether in person, on television or any other medium), the town spends. It's okay if the NFL and the other sports franchises return the favor. They can afford it. The workers' compensation obligation to California's workers is particularly acute when an employer takes so much money from willing consumers.
The NFL and other professional sports franchises owe it to their workers to protect them, regardless of their incomes, regardless of their status, regardless of their jobs.
To allow otherwise is an affront to the working people of this state.
AB 1309 is the professional sports athlete exclusion bill that would remove the ability of designated professional athletes in football, basketball, baseball and hockey from utilizing California's continuing trauma theory if the athlete can not prove sufficient contacts within the state, as prescribed by the bill.
The bill is promoted by Assembly Member Henry Perea (D-Fresno). Perea says the ability of professional athletes not based in California is a "loophole" in the state's workers' compensation laws. He is joined by Senator Ted W. Lieu (D-Torrance) as a principal co-author and Senator Mark Wyland (R-Escondido) who has also agreed to co-author the bill.
Perea says that AB 1309 "would set clear jurisdictional standards on claims from professional athletes and close the loophole that currently allows out-of-state players to file cumulative trauma claims in California, regardless of whether they played for a California team or ever actually entered a California field to play. It would also close the loophole that allows out-of-state athletes to place 100 percent of the cumulative trauma liability on California-based teams despite having played a minimal amount of time for that team – while playing for multiple non-California teams in subsequent years."
Perea says that the "loophole" fails the "common-sense test."
The irony is that AB 1309 itself fails the common-sense test.
First off, AB 1309 targets ONLY professional football players, hockey players, baseball players and basketball players. What about other professional athletes? How about motocross racers? What about jockeys? Why not professional cheerleaders? And why are the coaches, assistant coaches, managers and back office people still able to avail themselves of this "loophole"? All of these workers cross state lines and may file for benefits, including continuous trauma injuries, in California without restriction.
What is most despicable about this proposed law is that it is SO arbitrary and discriminatory.
The ONLY difference is that the pro athletes get REAL, life altering injuries - particularly football players that the NFL would just like to keep quiet so that this modern day version of the Roman gladiator entertainment factory remains anesthetically pleasing to the consumers so they will continue to purchase ridiculously priced tickets and support outsized television commercial contracts.
The single biggest threat to the NFL now is the growing recognition that the sport considerably shortens athletes' lives and contributes substantially to organic brain disease. Constant sustained head trauma is the single most life-altering injury these athletes face, and it is a tragedy that the NFL would like to keep away from the public the fact that so many end up with dementia, Alzheimers, Parkinson's and other serious maladies tied directly to continuously sustained brain trauma.
The argument for this ridiculous bill is that athletes rarely step into this state. That argument is absurd.
Every time a television broadcast of an NFL game occurs in California before MILLIONS of California based fans those athletes have stepped into this state.
Every time an NFL game is broadcast into the television sets of California fans to entertain the masses the NFL receives MILLIONS of dollars in television broadcast rights.
And the same can be said for every other state too.
The NFL has no problem taking revenue from broadcast rights where their employees are placed virtually into this state across millions of television sets, but apparently does not like to recognize the fact that the millions of dollars received in broadcast rights would not exist but for the fact that they are placing their athletes into California.
There is no difference between playing a game live or via television where the same net result is that millions of people contribute millions of dollars in revenue for that entertainment.
Forum conveniens is a long standing, time honored legal principal that should not be discounted. Just because California offers a legal remedy that other states don't recognize does not mean that it is out of line, out of touch, irresponsible, or wrong.
Just the opposite - California's long standing tradition of being non-traditional, thinking outside of the box, leading the way, has created the most resilient, most robust, most diverse economy of the United States and one of the most vigorous economies of the entire world.
Why would 38 million people live here otherwise, and why would California have the greatest concentration of wealth in the world? Because California does things differently and the state traditionally recognizes the contribution of working people regardless of their income, their status, their location, their domicile.
Perea says that "the bill would not limit the ability of professional athletes or any other worker to file for cumulative trauma benefits in their home state or principal state of employment."
Hey, that's a great argument ... NOT! Because no other state recognizes "cumulative trauma benefits" like California does; because no other state recognizes the contribution of PEOPLE, aka The Working Class to its economy (and yes, despite large salaries for very short careers, professional athletes are largely working people putting their bodies on the line for the entertainment of the masses).
If California politicians had ANY balls (and there aren't too many of them left in the legislature) then this state would set a precedence and tell the NFL, "No F*cking Legislation" that would alter this state's long standing tradition of recognizing that employers need to own up to their use of workers in hazardous occupations no matter where they live.
California's great economy is built on one simple fact: that as a world class economy we rely on the sweat equity of everyone that contributes.
When the NFL is in town (whether in person, on television or any other medium), the town spends. It's okay if the NFL and the other sports franchises return the favor. They can afford it. The workers' compensation obligation to California's workers is particularly acute when an employer takes so much money from willing consumers.
The NFL and other professional sports franchises owe it to their workers to protect them, regardless of their incomes, regardless of their status, regardless of their jobs.
To allow otherwise is an affront to the working people of this state.
Friday, August 30, 2013
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.
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.
Tuesday, December 27, 2011
NFL Suits and Report Cards - Transparency the Issue
I said I was taking a vacation during the week between Christmas and New Years.
I lied.
Too much going on. Maybe I just won't be as consistent in my posting, but I found after reading the news this morning that I couldn't shut up.
Two things this morning have fired up my typing fingers: Another NFL lawsuit and the WLDI annual report cards.
NFL Suit
Twenty-five former football players sued the National Football League last week - players filed two lawsuits against the NFL, one in Georgia and one in Florida federal courts.
Baltimore Ravens running back Jamal Lewis and three other players filed the first suit in the U.S. District Court for the Northern District of Georgia last Wednesday, in a case titled Lewis v. NFL. St. Louis Rams offensive lineman Kyle Turley and a group of 21 other players filed the second suit in the U.S. District Court for the Southern District of Florida on Thursday.
The two suits are the latest addition to a collection of four other concussion-related suits filed by players since last July. All of the actions allege that the league breached a duty to protect players from concussions that led to disabling brain injuries, such as chronic traumatic encephalopathy (CTE).
The suits allege the NFL's creation of the Mild Traumatic Brain Injury Committee (MTBI Committee) in 1994, which was created to research and resolve the impact of concussions in 1994. When the committee identified medical evidence suggesting that repeated concussions could result in tragic brain injuries, the NFL concealed it, the players' complaint contends.
The suits are unique because they are filed against the league rather than the teams. The teams are the players' employers so there should not be exclusivity.
What's also interesting is that these suits potentially create a little bit of a conflict between the teams and the NFL because there is certainly big subrogation potential behind the players' suits. Will the workers' compensation insurance companies for the teams seek to recoup some of their expenditures by intervening in these suits? And if so, will team owners, who essentially are the owners of the NFL, seek to quash such litigation? Who REALLY controls the money in this circuitous examination of liability?
For work comp wonks, interesting just scratches the surface regarding the issues in these suits.
Report Cards
The Work Loss Data Institute published its 2012 State Report Cards for Workers' Comp. This report intends to show insurers, state agencies and employers which states are doing well in treating workers and getting them back to work.
I'll admit to being ignorant as to the methodology of the report and how "grades" are derived.
It is interesting to me because for the most part, workers' compensation medical care completely lacks transparency.
The WLDI report doesn't resolve this lack of transparency, and in fact I think highlights the fact that there is no way anyone other than within a single entity (and likely even that is doubtful) can compare health outcomes and costs from one provider to the next.
I bring this up because I just finished "The Company That Solved Health Care" by John Torinus.
Torinus argues that the health care industry doesn't want health outcomes from vendor to vendor to be known because that would create market competition. In health care, as in workers' compensation, the health care industry goes to great lengths to ensure that the care consumer (in workers' compensation its the injured worker) has no idea who does good work on a defined quantitative schedule of comparison and what the costs are. Consumers have been trained to just rely on what their doctor tells them and follow along like dogs. The medical industry has been successful in taking the consumerism out of health care, and that is what has driven health care costs to spiral far outside the rate of inflation, unchecked, and why it will continue to worsen.
Workers' compensation is no different, and in fact its worse - the consumer, injured worker, has absolutely no financial stake in the medical equation. There is no financial reason for the injured worker to seek comparison, nor is there any way for the injured worker to make comparison.
And, since the entire bill is paid for by a third party - the nasty, antagonistic insurance company - a natural conflict is created and the medical industry takes full advantage of this by ensuring that there is acrimony between the two. The injured worker is led to believe that the medical community is really the one on the side of him or her.
WLDI's report card is a step toward rating overall system efficiency, but what it really does in my mind is graphically explain that there is no transparency in workers' compensation medical care, nor will there ever be unless the carriers band together, aggregate their data, and take the BIG risk of publicly displaying and rewarding or punishing do-gooders and bad-actors.
Carriers will never do this - their argument is that there is too much liability involved and they will get their pants sued off by the medical industry. They are probably right, they will get their pants sued off.
But in reality, the carriers don't want to make this information public because that jeopardizes the built in premium increase system of the experience modification factor. There is a conflict of interests in the exposure of VALUE in the medical equation of workers' compensation by carriers.
You will see me rant on through out this coming year on this topic because it is one that I think needs to be examined more closely. We will never have true workers' compensation "reform" unless and until there is transparency in the medical side of the system.
I lied.
Too much going on. Maybe I just won't be as consistent in my posting, but I found after reading the news this morning that I couldn't shut up.
Two things this morning have fired up my typing fingers: Another NFL lawsuit and the WLDI annual report cards.
NFL Suit
Twenty-five former football players sued the National Football League last week - players filed two lawsuits against the NFL, one in Georgia and one in Florida federal courts.
Baltimore Ravens running back Jamal Lewis and three other players filed the first suit in the U.S. District Court for the Northern District of Georgia last Wednesday, in a case titled Lewis v. NFL. St. Louis Rams offensive lineman Kyle Turley and a group of 21 other players filed the second suit in the U.S. District Court for the Southern District of Florida on Thursday.
The two suits are the latest addition to a collection of four other concussion-related suits filed by players since last July. All of the actions allege that the league breached a duty to protect players from concussions that led to disabling brain injuries, such as chronic traumatic encephalopathy (CTE).
The suits allege the NFL's creation of the Mild Traumatic Brain Injury Committee (MTBI Committee) in 1994, which was created to research and resolve the impact of concussions in 1994. When the committee identified medical evidence suggesting that repeated concussions could result in tragic brain injuries, the NFL concealed it, the players' complaint contends.
The suits are unique because they are filed against the league rather than the teams. The teams are the players' employers so there should not be exclusivity.
What's also interesting is that these suits potentially create a little bit of a conflict between the teams and the NFL because there is certainly big subrogation potential behind the players' suits. Will the workers' compensation insurance companies for the teams seek to recoup some of their expenditures by intervening in these suits? And if so, will team owners, who essentially are the owners of the NFL, seek to quash such litigation? Who REALLY controls the money in this circuitous examination of liability?
For work comp wonks, interesting just scratches the surface regarding the issues in these suits.
Report Cards
The Work Loss Data Institute published its 2012 State Report Cards for Workers' Comp. This report intends to show insurers, state agencies and employers which states are doing well in treating workers and getting them back to work.
I'll admit to being ignorant as to the methodology of the report and how "grades" are derived.
It is interesting to me because for the most part, workers' compensation medical care completely lacks transparency.
The WLDI report doesn't resolve this lack of transparency, and in fact I think highlights the fact that there is no way anyone other than within a single entity (and likely even that is doubtful) can compare health outcomes and costs from one provider to the next.
I bring this up because I just finished "The Company That Solved Health Care" by John Torinus.
Torinus argues that the health care industry doesn't want health outcomes from vendor to vendor to be known because that would create market competition. In health care, as in workers' compensation, the health care industry goes to great lengths to ensure that the care consumer (in workers' compensation its the injured worker) has no idea who does good work on a defined quantitative schedule of comparison and what the costs are. Consumers have been trained to just rely on what their doctor tells them and follow along like dogs. The medical industry has been successful in taking the consumerism out of health care, and that is what has driven health care costs to spiral far outside the rate of inflation, unchecked, and why it will continue to worsen.
Workers' compensation is no different, and in fact its worse - the consumer, injured worker, has absolutely no financial stake in the medical equation. There is no financial reason for the injured worker to seek comparison, nor is there any way for the injured worker to make comparison.
And, since the entire bill is paid for by a third party - the nasty, antagonistic insurance company - a natural conflict is created and the medical industry takes full advantage of this by ensuring that there is acrimony between the two. The injured worker is led to believe that the medical community is really the one on the side of him or her.
WLDI's report card is a step toward rating overall system efficiency, but what it really does in my mind is graphically explain that there is no transparency in workers' compensation medical care, nor will there ever be unless the carriers band together, aggregate their data, and take the BIG risk of publicly displaying and rewarding or punishing do-gooders and bad-actors.
Carriers will never do this - their argument is that there is too much liability involved and they will get their pants sued off by the medical industry. They are probably right, they will get their pants sued off.
But in reality, the carriers don't want to make this information public because that jeopardizes the built in premium increase system of the experience modification factor. There is a conflict of interests in the exposure of VALUE in the medical equation of workers' compensation by carriers.
You will see me rant on through out this coming year on this topic because it is one that I think needs to be examined more closely. We will never have true workers' compensation "reform" unless and until there is transparency in the medical side of the system.
Tuesday, March 26, 2013
Big Business versus the EWJ
While the ongoing dispute concerning whether professional sports employees (aka athletes) in the National Football League can seek redress for their work injuries in California in contravention to collective bargaining contract provisions seems limited in scope, what happens with the NFL cases can have implications for many, many different occupations.
The most recent legal maneuvering has a federal court consolidating three lawsuits concerning 118 players in which the players have pursued their California claims despite an arbitrator's final and binding order to cease and desist.
In addition the NFL has filed a countersuit seeking attorneys fees from the players, and a declaration that the plaintiffs must file all workers’ compensation claims in the venue specified by their contracts and drop any pending claims in California.
As you likely know this controversy concerns California's recognition of cumulative trauma as an injury - a relatively unique provision of law that isn't a part of most other states work comp systems.
What is lost in the debate, however, is the global effect of these cases and legislative actions - if it's a football player's rights today, who's to say it's not a pipe welder's, or field worker's, or traveling salesman's rights tomorrow?
California law already has provisions where workers under a collective bargaining agreement may be subject to alternative arrangements for work injuries, including arbitration of disputes. These are known as "carve-outs."
But there are certain limitations.
For instance, no contract can deny a worker benefits any less than what would be available under normal California law. And while disputes may be subject to arbitration, an award is always subject to review up the chain of appeal just like any award from a workers' compensation judge.
Most people don't care about the NFL cases. To the EWJ this is nothing that affects them other than the possibility of an increase in ticket prices, or perhaps the relocation (or non-location) of a sports franchise. They don't see any connection between what happens to the rights of a big time sports star and their jobs in the Daily Grind.
The old saying, ignorance is bliss, applies to most things workers' compensation for the EWJ until they actually have a work injury. Then the tune changes.
In any debate one can either sit on the sidelines, or take a side. I'm taking a side - the side of the players.
What we are seeing is nothing more than an attempt to subvert a state's laws through contract. In my mind, that is a very dangerous legal precedent to uphold, and must be examined very, very carefully for the consequences to society can be damaging beyond imagination.
In the big picture, this is not about forum selection, binding arbitration, cumulative trauma, or any of the other legal arguments.
It's about Big Business versus the EWJ.
This argument was settled 100 years ago and the verdict then was that workers' compensation was a cost of doing business.
The most recent legal maneuvering has a federal court consolidating three lawsuits concerning 118 players in which the players have pursued their California claims despite an arbitrator's final and binding order to cease and desist.
In addition the NFL has filed a countersuit seeking attorneys fees from the players, and a declaration that the plaintiffs must file all workers’ compensation claims in the venue specified by their contracts and drop any pending claims in California.
As you likely know this controversy concerns California's recognition of cumulative trauma as an injury - a relatively unique provision of law that isn't a part of most other states work comp systems.
Cumulative trauma scares the NFL (and its insurers) because of the recent increase in claims for traumatic brain injury - these cases can involve millions of dollars in medical expense over the life of the athlete.
The arbitrator in the 118 cases found that the players pursuing claims in California all signed contracts requiring them to file workers’ compensation claims in the state where the team was located.
He ruled that there is a distinction between a claim for a specific injury occurring in California and a cumulative trauma claim. A player can’t contract away his right to file a claim in California for a distinct injury suffered in the state, but choice of forum and choice of law clauses can be invoked to prevent a player from filing a cumulative trauma claim in California, said the aribtrator.
The players' argue that the arbitrator ignored the law, denied them due-process rights and violated California public policy.
While this legal action was going on, the California Workers' Compensation Appeals Board (WCAB) ruled that it does not have jurisdiction over such injury allegations where there is a forum-selection clause in a collective bargaining agreement.
The player in the WCAB case, former Arizona Cardinals Dennis McKinley, has appealed saying the California law prohibits the enforcement of a forum-selection clause that would force a party to a jurisdiction where no relief is available. Because the statute of limitations to file a claim expired in Arizona, McKinley can’t file a claim in that state and the WCAB should have exercised jurisdiction over his case, court documents say.
The arbitrator in the 118 cases found that the players pursuing claims in California all signed contracts requiring them to file workers’ compensation claims in the state where the team was located.
He ruled that there is a distinction between a claim for a specific injury occurring in California and a cumulative trauma claim. A player can’t contract away his right to file a claim in California for a distinct injury suffered in the state, but choice of forum and choice of law clauses can be invoked to prevent a player from filing a cumulative trauma claim in California, said the aribtrator.
The players' argue that the arbitrator ignored the law, denied them due-process rights and violated California public policy.
While this legal action was going on, the California Workers' Compensation Appeals Board (WCAB) ruled that it does not have jurisdiction over such injury allegations where there is a forum-selection clause in a collective bargaining agreement.
The player in the WCAB case, former Arizona Cardinals Dennis McKinley, has appealed saying the California law prohibits the enforcement of a forum-selection clause that would force a party to a jurisdiction where no relief is available. Because the statute of limitations to file a claim expired in Arizona, McKinley can’t file a claim in that state and the WCAB should have exercised jurisdiction over his case, court documents say.
The WCAB has many more NFL cases pending.
In the meantime, the NFL and its supporters from other sports leagues, have been pursuing legislative remedies in California, Arizona and other states, with bills that would limit the ability of professional athletes (specifically football, baseball, hockey and basketball) from seeking redress in any other state's work comp systems where there is a forum selection clause.
All of this activity, publicity, argument and discourse has incited passion, particularly with football fans, who are particularly passionate themselves about the game. The perception of the Everyday Working Joe (EWJ), from what I've been reading in public forums, is that the players are whiners, not content with their good fortune of playing in the NFL and making huge sums of money.
In the meantime, the NFL and its supporters from other sports leagues, have been pursuing legislative remedies in California, Arizona and other states, with bills that would limit the ability of professional athletes (specifically football, baseball, hockey and basketball) from seeking redress in any other state's work comp systems where there is a forum selection clause.
All of this activity, publicity, argument and discourse has incited passion, particularly with football fans, who are particularly passionate themselves about the game. The perception of the Everyday Working Joe (EWJ), from what I've been reading in public forums, is that the players are whiners, not content with their good fortune of playing in the NFL and making huge sums of money.
What is lost in the debate, however, is the global effect of these cases and legislative actions - if it's a football player's rights today, who's to say it's not a pipe welder's, or field worker's, or traveling salesman's rights tomorrow?
California law already has provisions where workers under a collective bargaining agreement may be subject to alternative arrangements for work injuries, including arbitration of disputes. These are known as "carve-outs."
But there are certain limitations.
For instance, no contract can deny a worker benefits any less than what would be available under normal California law. And while disputes may be subject to arbitration, an award is always subject to review up the chain of appeal just like any award from a workers' compensation judge.
Most people don't care about the NFL cases. To the EWJ this is nothing that affects them other than the possibility of an increase in ticket prices, or perhaps the relocation (or non-location) of a sports franchise. They don't see any connection between what happens to the rights of a big time sports star and their jobs in the Daily Grind.
The old saying, ignorance is bliss, applies to most things workers' compensation for the EWJ until they actually have a work injury. Then the tune changes.
In any debate one can either sit on the sidelines, or take a side. I'm taking a side - the side of the players.
What we are seeing is nothing more than an attempt to subvert a state's laws through contract. In my mind, that is a very dangerous legal precedent to uphold, and must be examined very, very carefully for the consequences to society can be damaging beyond imagination.
In the big picture, this is not about forum selection, binding arbitration, cumulative trauma, or any of the other legal arguments.
It's about Big Business versus the EWJ.
This argument was settled 100 years ago and the verdict then was that workers' compensation was a cost of doing business.
Monday, April 28, 2014
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.
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.
Monday, February 2, 2015
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.
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.
Wednesday, May 21, 2014
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.
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.
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.
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.
Thursday, December 8, 2011
Professional Sports and the Relevancy of Comp
Professional sports represents an odd situation for workers' compensation schemes. There is a high degree of risk of injury or even death, especially for the more violent sports such as football, or sports involving speed and/or endurance such as cycling.
Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).
Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).
In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.
This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.
Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.
This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.
"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"
Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.
"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."
The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.
The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.
Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.
To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.
Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.
We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.
I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.
Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).
Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).
In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.
This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.
Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.
This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.
"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"
Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.
"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."
The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.
The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.
Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.
To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.
Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.
We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.
I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.
Thursday, December 5, 2013
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).
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).
Monday, February 8, 2016
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.
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.
Tuesday, January 10, 2012
The NFL, Apportionment and Substantial Evidence
It's playoff season in the National Football League so it is only fitting that we get workers' compensation news concerning professional football claims.
In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.
The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.
The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.
The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.
The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.
But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.
The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:
"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."
Here's my take-aways from this case:
In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.
The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.
The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.
The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.
The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.
But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.
The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:
"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."
Here's my take-aways from this case:
- The "good old days" of "expert opinion" are gone - medical opinion must be supported by both fact and science. Just saying it is, because one is an expert, doesn't make it so. If the Raider's QME was apportioning to other exposure then there needs to be supporting evidence upon which to base that opinion and in this case just dividing up the liability without some evidence in the record that indicates an exposure is not substantial evidence. We see this all the time.
- When you don't have substantial evidence to support your case, and the other side has better evidence (remember that substantial evidence is evidence that is "good enough"), then there should be an attempt to challenge that evidence. In this case, either get a change in opinion that supports apportionment or disqualifies the opinion completely so you can start over.
- Professional football is brutal and the players come out of their careers with significant injuries and disabilities. workers compensation, work comp, injured worker
Monday, May 7, 2012
Head Injuries and Cruel Behavior
The National Football League is big business, big entertainment, big athletes, big everything.
Its workers' compensation issues are big too.
The American football watching public takes for granted the hazards frequented by professional football players since the dazzle of big screen LED and pageantry of spectacle that surrounds every game cloud the reality of the sports dangers.
But the occupational hazard of protracted physical contact is becoming more and more public, and with the recent suicide death of San Diego darling, Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case, more pressure is on the league than ever before to provide a "safe" workplace for the players.
Traumatic brain injury is little understood by the public, until someone close sustains it, then one realizes how much life changes.
I had a friend who committed suicide by jumping from a bridge following a very difficult number of years post traumatic brain injury.
My friend was a very successful businessman, and a very gifted athlete. He lived life big - everything he did was outsized and he took as much from life as he could.
Then he fell on his head on a motocross track and sustained a very serious concussion.
After he recuperated his wife noticed he wasn't the same. His friends also noted the he behaved differently. He was moody, thought processes became cloudy, decision making was ineffective, questionable and prolonged.
The depression brought about by traumatic brain injury eventually took over his life and he decided to end it.
I can't help but think that this was went through Junior Seau's mind. Head injuries accumulate, and alter thought processes.
Junior knew his mind wasn't right - that must be why he shot himself in the chest. If he shot himself in the head then science would not be able to study his brain.
Seau's death followed the suicide of former Falcons safety Ray Easterling on April 19 of what police called a self-inflicted gunshot wound. He was one of the plaintiffs in a class action concussion lawsuit brought by a large group of former NFL players.
Just one year ago Boston University researchers issued a report on the autopsy of former Chicago Bears defensive back Dave Duerson. Duerson months earlier had shot himself in the chest – like Seau – and wrote a note to his family, asking that his brain be sent to doctors for study.
The report came back that Duerson had brain damage common to chronic traumatic encephalopathy, head trauma also found in more than 20 other deceased players.
In the meantime teams combat workers' compensation claims by players seeking to minimize the financial damage of claims being filed in "liberal" states, such as California, which recognize injuries through continuous trauma (CT), rather than just single injury incidents.
Many in business denigrate California's liberal recognition of CT claims because, like many legal issues, the scope and context of a CT injury gets blown out of proportion and abused by people who should not be entitled to benefits.
But there is legitimacy to the CT theory - at least in the game of football and for chronic traumatic encephalopathy.
The NFL has been making a lot of news lately by fining and suspending players, coaches and support staff for illegal hits and other damaging play activity. This is offensive to many fans, who complain that football is by its nature a violent sport, that players are paid a lot of money to engage in the sport and that they should stop crying.
The collective bargaining agreements that the players sign contain jurisdictional clauses for workers' compensation purposes to limit forum shopping so that players can not avail themselves of California law or other liberal work comp state laws.
WorkCompCentral legal editor, Sherri Okamoto, this morning writes about this jurisdictional wrangling and points to the fight between Maryland and Virginia as the Maryland Court of Appeals heard oral arguments in Pro-Football Inc. et al. v. McCants, No. 116, on Thursday. The case involves a claim by former Washington Redskins wide receiver Darnerien McCants against the franchise, which is incorporated in Virginia as Pro-Football Inc.
It is the second case brought by a former Washington Redskins player against the team in Maryland. Last February, the Court of Special Appeals ruled that the Maryland workers' compensation system had jurisdiction over a claim filed by punter Thomas Tupa Jr. for an injury sustained at FedEx Field in Landover, Md.
In February the California Workers' Compensation Appeals Board ruled that Labor Code Section 3600.5(b) foreclosed its ability to take jurisdiction over Vaughn Booker's claim for cumulative injuries allegedly caused, at least in part, by his one professional football game in California.
Booker had signed a contract with the Bengals covering five football seasons. An addendum to this contract provided that Booker "promise(d) and agree(d) that any workers' compensation claim, dispute or cause of action arising out of (Booker)'s employment with the (Bengals) shall be subject to the workers' compensation laws of Ohio exclusively."
After signing the contract, Booker played three seasons with the Bengals. Of the 48 games he played with the team during this time, only one was in California. Booker later filed a claim for workers' compensation benefits in California, claiming to have suffered cumulative injury to various body parts that resulted, at least in part, from the game he played in California.
The Cincinnati Bengals also used Labor Code 3600.5(b) to obtain two panel decisions in 2010 rescinding administrative decisions favoring former wide receivers Eddie Brown and Wesley Carroll.
Legal arguments aside, former Saints and Browns offensive lineman LeCharles Bentley dramatically brought the issue home on Twitter shortly after Seau’s body was found:
“Any other smart ass player want to question why the league is cracking down? One of the baddest dudes may have just killed himself …
“And saved his brain so it can be studied to save future generations from suffering same fate. Yeah, y’all real tough. Life after football is REAL … grown ass men struggle emotionally … young boys don’t see the end … it’s coming. Life lesson today."
Its workers' compensation issues are big too.
The American football watching public takes for granted the hazards frequented by professional football players since the dazzle of big screen LED and pageantry of spectacle that surrounds every game cloud the reality of the sports dangers.
But the occupational hazard of protracted physical contact is becoming more and more public, and with the recent suicide death of San Diego darling, Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case, more pressure is on the league than ever before to provide a "safe" workplace for the players.
Traumatic brain injury is little understood by the public, until someone close sustains it, then one realizes how much life changes.
I had a friend who committed suicide by jumping from a bridge following a very difficult number of years post traumatic brain injury.
My friend was a very successful businessman, and a very gifted athlete. He lived life big - everything he did was outsized and he took as much from life as he could.
Then he fell on his head on a motocross track and sustained a very serious concussion.
After he recuperated his wife noticed he wasn't the same. His friends also noted the he behaved differently. He was moody, thought processes became cloudy, decision making was ineffective, questionable and prolonged.
The depression brought about by traumatic brain injury eventually took over his life and he decided to end it.
I can't help but think that this was went through Junior Seau's mind. Head injuries accumulate, and alter thought processes.
Junior knew his mind wasn't right - that must be why he shot himself in the chest. If he shot himself in the head then science would not be able to study his brain.
Seau's death followed the suicide of former Falcons safety Ray Easterling on April 19 of what police called a self-inflicted gunshot wound. He was one of the plaintiffs in a class action concussion lawsuit brought by a large group of former NFL players.
Just one year ago Boston University researchers issued a report on the autopsy of former Chicago Bears defensive back Dave Duerson. Duerson months earlier had shot himself in the chest – like Seau – and wrote a note to his family, asking that his brain be sent to doctors for study.
The report came back that Duerson had brain damage common to chronic traumatic encephalopathy, head trauma also found in more than 20 other deceased players.
In the meantime teams combat workers' compensation claims by players seeking to minimize the financial damage of claims being filed in "liberal" states, such as California, which recognize injuries through continuous trauma (CT), rather than just single injury incidents.
Many in business denigrate California's liberal recognition of CT claims because, like many legal issues, the scope and context of a CT injury gets blown out of proportion and abused by people who should not be entitled to benefits.
But there is legitimacy to the CT theory - at least in the game of football and for chronic traumatic encephalopathy.
The NFL has been making a lot of news lately by fining and suspending players, coaches and support staff for illegal hits and other damaging play activity. This is offensive to many fans, who complain that football is by its nature a violent sport, that players are paid a lot of money to engage in the sport and that they should stop crying.
The collective bargaining agreements that the players sign contain jurisdictional clauses for workers' compensation purposes to limit forum shopping so that players can not avail themselves of California law or other liberal work comp state laws.
WorkCompCentral legal editor, Sherri Okamoto, this morning writes about this jurisdictional wrangling and points to the fight between Maryland and Virginia as the Maryland Court of Appeals heard oral arguments in Pro-Football Inc. et al. v. McCants, No. 116, on Thursday. The case involves a claim by former Washington Redskins wide receiver Darnerien McCants against the franchise, which is incorporated in Virginia as Pro-Football Inc.
It is the second case brought by a former Washington Redskins player against the team in Maryland. Last February, the Court of Special Appeals ruled that the Maryland workers' compensation system had jurisdiction over a claim filed by punter Thomas Tupa Jr. for an injury sustained at FedEx Field in Landover, Md.
In February the California Workers' Compensation Appeals Board ruled that Labor Code Section 3600.5(b) foreclosed its ability to take jurisdiction over Vaughn Booker's claim for cumulative injuries allegedly caused, at least in part, by his one professional football game in California.
Booker had signed a contract with the Bengals covering five football seasons. An addendum to this contract provided that Booker "promise(d) and agree(d) that any workers' compensation claim, dispute or cause of action arising out of (Booker)'s employment with the (Bengals) shall be subject to the workers' compensation laws of Ohio exclusively."
After signing the contract, Booker played three seasons with the Bengals. Of the 48 games he played with the team during this time, only one was in California. Booker later filed a claim for workers' compensation benefits in California, claiming to have suffered cumulative injury to various body parts that resulted, at least in part, from the game he played in California.
The Cincinnati Bengals also used Labor Code 3600.5(b) to obtain two panel decisions in 2010 rescinding administrative decisions favoring former wide receivers Eddie Brown and Wesley Carroll.
Legal arguments aside, former Saints and Browns offensive lineman LeCharles Bentley dramatically brought the issue home on Twitter shortly after Seau’s body was found:
“Any other smart ass player want to question why the league is cracking down? One of the baddest dudes may have just killed himself …
“And saved his brain so it can be studied to save future generations from suffering same fate. Yeah, y’all real tough. Life after football is REAL … grown ass men struggle emotionally … young boys don’t see the end … it’s coming. Life lesson today."
These football cases are no different than the one I pointed out several posts ago about the Herman Blair case and the shameful shenanigans Erie Indemnity Co. engaged in to deny this man his benefits because his traumatic brain injury prevented him from remembering the circumstances of his fall from a ladder.
Depression, suicide, bizarre behavior, episodic amnesia - head injuries, specific OR cumulative, produce serious cognitive and emotional issues that can't be taken lightly and unfortunately suicide seems to be a common way out for those who suffer the trauma. Employers and carriers selfishly seeking to limit their monetary obligations when verifiable head injury claims are presented show how cruel mankind can be.
Subscribe to:
Posts (Atom)