Thursday, February 13, 2014

Jurisdiction and Compensable Consequence

I have posted quite a bit in this blog about the futility of specialty legislation - from my observations of 30 years in this industry, specialty legislation never really works as intended and there always seems to be some way around it.

Last year the National Football League and its compatriots in other professional sports leagues pushed for and got the Governor's signature on AB 1309 - that's the bill that limits California jurisdiction over out-of-state player claims with minimal contacts to the state.

The intent was to restrict access to California's liberal workers' compensation laws, so AB 1309 amended Labor Code section 3600.5 with the following:

***********(c) (1) With respect to an occupational disease or cumulative injury, a professional athlete who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the professional athlete is temporarily within this state doing work for his or her employer if both of the following are satisfied:

(A) The employer has furnished workers’ compensation insurance coverage or its equivalent under the laws of a state other than California.

(B) The employer’s workers’ compensation insurance or its equivalent covers the professional athlete’s work while in this state.

(2) In any case in which paragraph (1) is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any occupational disease or cumulative injury, whether resulting in death or not, received by the employee while working for the employer in this state.

(3) A professional athlete shall be deemed, for purposes of this subdivision, to be temporarily within this state doing work for his or her employer if, during the 365 consecutive days immediately preceding the professional athlete’s last day of work for the employer within the state, the professional athlete performs less than 20 percent of his or her duty days in California during that 365-day period in California.

(d) (1) With respect to an occupational disease or cumulative injury, a professional athlete and his or her employer shall be exempt from this division when all of the professional athlete’s employers in his or her last year of work as a professional athlete are exempt from this division pursuant to subdivision (c) or any other law, unless both of the following conditions are satisfied:

(A) The professional athlete has, over the course of his or her professional athletic career, worked for two or more seasons for a California-based team or teams, or the professional athlete has, over the course of his or her professional athletic career, worked 20 percent or more of his or her duty days either in California or for a California-based team. The percentage of a professional athletic career worked either within California or for a California-based team shall be determined solely by taking the number of duty days the professional athlete worked for a California-based team or teams, plus the number of duty days the professional athlete worked as a professional athlete in California for any team other than a California-based team, and dividing that number by the total number of duty days the professional athlete was employed anywhere as a professional athlete.

(B) The professional athlete has, over the course of his or her professional athletic career, worked for fewer than seven seasons for any team or teams other than a California-based team or teams as defined in this section.

(2) When subparagraphs (A) and (B) of paragraph (1) are both satisfied, liability for the professional athlete’s occupational disease or cumulative injury shall be determined in accordance with Section 5500.5.

(e) An employer of professional athletes, other than a California-based team, shall be exempt from Article 4 (commencing with Section 3550) of Chapter 2, and subdivisions (a) to (c), inclusive, of Section 5401.

The section was also amended to define "professional athlete."

Note that the amendment to 3600.5 deals only with cumulative trauma or occupational disease claims.

An athlete who sustains a specific injury, or at least alleges a specific injury, would not be precluded for filing in California.

And this is easily evidenced by the receipt of medical treatment or other medical attention in this state.

Which of course damn near every football player, hockey player or other contact sport athlete gets when that athlete sees the team doctor for some pain or ache, or worse, during a game or practice...

See where I'm going with this?

Once the specific injury is filed and jurisdiction has been implicated in California, it is not any stretch to start adding "compensable consequences" to the claim.

Indeed, this is what the Workers' Compensation Appeals Board seems to be hinting at in some recent panel opinions (though I'm sure the commissioners aren't actually saying this, but it is a reasonable interpretation).

Reginald Slater filed a claim with the Minnesota Timberwolves seeking California jurisdiction.

Slater had played professional basketball for the Denver Nuggets, Portland Trail Blazers, Dallas Mavericks, Toronto Raptors, Minnesota Timberwolves, New Jersey Nets and Atlanta Hawks from 1994–1999 and 2000-2003. He also spent two years playing basketball in Europe.

Slater was with the Minnesota Timberwolves from 2002 until 2003 and that year, he came to California four times for games.

He filed a claim for benefits in California, asserting that he had hurt a finger during a game in California while he was playing for the Denver Nuggets, and that he suffered wear and tear on his knees in the games he played for the Timberwolves in California.

Slater said he reported his knee complaints to the Timberwolves' trainer, and he was examined by the trainer while in California.

The Workers' Compensation Judge found jurisdiction under the version of LC 3600.5 in effect at the time (prior to AB 1309 amendment). On reconsideration, the WCAB said that finding was erroneous, as there was no allegation or evidence that Slater was hired in California or that he was "regularly working" in California.

But, the panel concluded that Slater could still bring his claim in California because there was "substantial evidence that (he) was injured in California" and required medical treatment within the state.

Another case, also prior to AB 1309, found jurisdiction where the contract for hire was negotiated in California even though the employer/team was out of state (this has long been the law in California regardless of whether the employee was an athlete, a sales person, executive or whatever occupation).

John Randle had been a defensive tackle for the Seattle Seahawks from 2001 through 2004.

He claimed that he played eight to 10 games in California while he was with the Seahawks, and about 15 or 16 games in California over the course of his entire career. The workers' compensation judge's determination that this was enough to establish that Randle was "regularly employed" in the state was refuted by the WCAB.

But, the WCAB panel said that California still had jurisdiction over his claim because his agent negotiated all his athletic contracts in California.

"An employment contract that is formed over the telephone is deemed a California contract of hire if it is accepted in California," the panel explained. Since Randle and his agent were in California when they agreed to the contract that Randle would later travel to Seattle to sign, the WCAB panel ruled that acceptance took place in California, ergo California jurisdiction.

So we can see how a professional athlete for an out of state employer can still get California jurisdiction: 1) medical treatment for an injury in the state and/or 2) contract of hire negotiated in the state.a

I'm sure there are many other ways to invoke jurisdiction regardless of AB 1309's restrictions.

And once jurisdiction is established the long standing rule of compensable consequence will certainly be invoked to cover other body parts - it just takes substantial medical evidence.

And if you don't understand the concept of substantial evidence (i.e. "good enough") then please read my postings on that concept as well.

Yes, since AB 1309 claims filed by professional athletes are down substantially - but that's only because the law hasn't really been figure out yet by claimant/athletes and their lawyers.

Trust me, they'll figure it out, another "crisis" will be pronounced by some special interest group of employers, and we'll have more specialty legislation that will reset the cycle.

Isn't work comp grand?

No comments:

Post a Comment