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).

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