Flipping The Bird

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There's taking advantage of a situation.

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

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

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

Football and Work Comp Politics

Bowzer knows...

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

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

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

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

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

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

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

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

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

I was wrong. It took 5 months.

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

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

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

The proof is in the NFL and the California DWC.

Vetoes and The Bargain

Bowzer knows.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Los Angeles will finally get its team...

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

It's not a laughing matter.

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

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.

We're Back

The teaser line for the movie trailer Poltergeist II is almost universally known: "They're ba-ack."

It's now 2015, I'm back. Legislators are back. Judges are back. Workers are back. Business is back.

2014 was tumultuous for California work comp and in a few other states as well.

Heck, it was tumultuous for me!

In comp we had court challenges to many aspects of California's historic "reform" bill, SB 863, most of which are still pending.

In my life I had Dad's death and Mom's placement in a memory care facility.

In comp we saw continued increase in premium expense for employers despite promises of savings and uncertainty (WorkCompCentral's "Word on the Industry" for 2014) in nearly every aspect of California's system.

In my life I saw a kid graduate from college and enter the "real world" with nearly as much uncertainty in her future as workers' compensation.

They're ba-ack.

Some business relationships in work comp were challenged and the news was filled with prosecutions of white collar crime.

My life had business relationship challenges too, but thankfully no relations with criminals, though I was stalked a couple of times by some injured workers (and not exactly sure why).

Interest rates remained near record lows, and the stock market hit record highs. Bond yields remain at near all time lows.

Gasoline and oil nearly halved in price as Saudi Arabia sought to re-establish monopoly control over that market by forcing out new production efforts through economic warfare.

And it appears that some rogue nations are bent on other types of terrorist activity and warfare as we saw with monumental computer hacking, despicable head hacking, and Congress' ambivalence on TRIA.

Insurance rates, and premiums, along with medical expenses, continue to rise, though at a much more tepid pace than the last decade.

The economy has sucked back most of the unemployment roll since the 2008 recession, but left in its wake a large population of the unemployable.

The jobs that are coming back have more to do with controlling automation (eliminating a dozen or so jobs for each machine-monitoring job created) which is great for competitive business, but tough on those workers lacking education or skills in robotics.

There's speculation that even previously staid jobs, such as lawyers or legal clerks reviewing records, may end up automated putting pressure on white collars as well.

And workers' compensation is still here, trying to adapt to this radically changing world.

In California Professional Employee Organizations can no longer be self-insured.

Lien filers anxiously await a decision from the 9th Circuit Court of Appeals on the activation fees from SB 863.

Fee schedules for copy and interpreting services still require finality.

The vague $120M supplemental slush fund is also awaiting finishing touches.

Over on the other side of the nation a question remains as to the constitutionality of Florida's system.

New York is still grappling with sluggish implementation of fee schedule reform and challenges to authority in the system.

Illinois can't quite figure out what it wants out of "reform," Oklahoma is trying to show the rest of the nation that "opting out" into a regulated civil system can work, Texas is debating rules on its Independent Medical Review system, and the rest of the nation is busy legislating out anything other than a specifically witnessed, "old world" style of injury.

Sometimes I wonder if I'll have anything to write about. I mean, honestly, what can be so interesting about workers' compensation?

Then I read the daily headlines: a move to generic medications, challenges to 100% PD award where the worker can't leave the house, objections to fees that haven't changed in nearly 20 years, moribund legislatures ... and more.

All this turmoil, all this anxiety, and WorkCompCentral columnist Peter Rousmaniere opines that work comp is shrinking...

Yep, I'm back because the more things change, the more they stay the same: there's lots to write about, lots to debate, lots to reflect upon.

Welcome to 2015!

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.

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?

Stupor Bowl And The Numbers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Football, Common Law and Disruption

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fair enough.

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

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

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

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

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

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

AB 1309 - Told You So

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

And it's no surprise that nobody cares.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Don't Be A Professional Athelete

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Will Get Brown's Signature

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 2013 legislative session ends on Sept. 13.

The Sensitivity of Exclusive Remedy

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

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

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

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

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

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

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

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

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

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

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

I thought this was entirely interesting.

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

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

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

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

So there is no exclusive remedy threat there either.

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

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

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

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

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

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

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

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

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

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

Just The Way It Is

Workers' compensation is a statutory creature, created by special interest factions representing various elements of society in a politically negotiated manner for whatever may benefit any particular group of similarly situated constituents.

When all is said and done at the end of the day, workers' compensation simply works the way it is intended by those responsible for putting the language in the books.

There may be details that get overlooked, "loopholes" that allow some previously unanticipated activity, but overall the system operates as intended the vast majority of the time.

That is, employers pay into a risk allocation system that finances as efficiently as humanly possible the distribution of resources for medical care and income support to the few employees that sustain injuries or incur disease on the job.

Employers complain that it costs too much. Workers subject to the system complain that they don't get enough when they need it. Vendors complain that they are underpaid and under-appreciated. Insurers complain about compliance and complexity. Administrators complain that legislators don't appreciate the difficulty executing the laws.

That's just the way it is.

And the other 99% of the voting population doesn't care. They just want their football. Or baseball, basketball and hockey, as it may be.

Which of course leads us back to the national trend of limiting the rights of certain professional athletes to pursue workers' compensation claims, particularly in California.

Business loves California because it is such a huge economy. A lot of people with a lot of money live in California and that simple fact makes the state nearly irresistible to many businesses.

So business either imports goods and services to the state, which of course requires some sort of logistics and/or distribution system (typically employing people in California either directly or indirectly) or requires establishing operations in California, likewise engaging in employment activity in the state.

Which means that there is exposure to California law.

California law irritates a lot of people. Some complain it is too liberal. Some complain that it is too sloppy. Some complain that it is too complex.

When California law irritates enough people with enough money and power then there is pressure to change the law to fit the interests of those complaining, regardless of the impact on other interests, regardless of the logic or philosophy or culture of the state.

That's just the way it is.

AB 1309 is one of those laws. It is the California professional athlete workers' compensation constriction bill sponsored by Assemblyman Henry Perea, D-Fresno. This is the bill that would limit the ability of football, baseball, basketball and hockey players to seek redress for claimed continuing trauma injuries in California unless the athlete can prove some minimal connection, as defined by the bill, with the state.

The bill is progressing nicely through the legislature with the Senate Committee on Labor and Industrial Relations on Wednesday unanimously passing an amended version of the bill.

The amendments seek to clarify its operation and application.

Professional sports businesses support the bill. Professional athletes and employees oppose the bill.

And the vast majority of citizens, including lawmakers, really don't care.

That's just the way it is.

Public service unions typically have had a lot of power in the California legislature which is why there are workers' compensation laws granting presumptions in favor of law enforcement and fire fighting occupations.

Professional sports player unions don't have that kind of clout.

At this point in time in history, professional sports businesses have the legislative power and momentum to secure their interests into law, riding on the coattails of Big Business' success with SB 863.

I have no doubt in my mind that AB 1309 will be law. The bill's ultimate shape and form may still be tweaked, then it will be subject to the interpretive forces of the judiciary.
The workers' compensation industry, the carriers, administrators, vendors, will respond as best it can with the tools provided.

And we will move on to the next special interest demand seeking to address some other complaint because the system doesn't work the way they want it to.

That's just the way it is.

Sports Fans - Don't Stipulate in California

In many workers' compensation litigated disputes, much of the factual issues are stipulated because the legal issues are so limited.

But sometimes a stipulation will work against a party when the existing law is shifting in scope and context.

One of the noted trends sweeping the workers' compensation world is the constriction on professional athletes taking their cumulative trauma claims to California for adjudication despite minimal physical contacts to the state.

The National Football League has been aggressively seeking legislation in key states to impose jurisdictional limitations and the California Workers' Compensation Appeals Board (WCAB) this year issued two en banc decisions turning away football players who sought to bring cumulative trauma claims in California.

In fact just two weeks ago, the WCAB issued an en banc decision in which it found it did not have jurisdiction over a cumulative trauma claim by Wesley Carroll, a wide receiver who had played for the New Orleans Saints and Cincinnati Bengals, even though Carroll was time-barred from bringing a claim in Ohio.

The WCAB in that decision ruled that California's workers' compensation laws could not govern a claim by an employee who was hired outside of the state and who was only temporarily within the state to perform work for an employer.

But the WCAB ruled against the New York Knicks in asserting jurisdiction over a claim brought by power forward Jerome Williams to adjudicate his claim in California. The Knicks filed an appeal with the 4th District Court of Appeal, Division 3, on Monday.

There was debate about the Williams case in the applicant attorney circles - some stating that the WCAB was sending a mixed message.

But there isn't any mixed message - the WCAB was simply following the facts of the case as stipulated by the parties.

And one of those facts that the Knicks, rightly or wrongly, stipulated to was a continuing trauma injury in California:

"Defendant Federal Insurance Company, the insurer for the New York Knickerbockers, petitions for reconsideration of the September 17, 2012 Findings and Orders. In that decision, the workers' compensation administrative law judge (WCJ) found that the Workers' Compensation Appeals Board (WCAB) has jurisdiction over applicant's claim and that applicant was a professional athlete, occupational group 590, for purposes of compensation. The parties had stipulated that applicant sustained an industrial injury to his back, neck, shoulders, knees, right elbow and right foot from 1996 through April 20, 2005." [Emphasis added.]

In fact, the WCAB simply adopted the WCJ's report and recommendations on reconsideration because there was no dispute on the salient facts. The WCJ's report states:

"The relevant facts are not in dispute. Applicant Jerome Williams was a professional basketball player who played for four NBA teams from 1996 through April 20, 2005, most recently the New York Knickerbockers (Knicks) from November 8, 2004 through April 20, 2005. Applicant filed an Application for Adjudication alleging multiple injuries as a result of cumulative trauma throughout his career. Applicant was never hired in California and played his entire career with Eastern Conference teams. He currently lives in Nevada and has never resided in California. His agent was based in Washington, D.C. Applicant's only contacts with California, and his sole basis for asserting California jurisdiction, were 24 games played in California during his nine-year career, including three games in California during his final season with the Knicks. (Report, p. 2.)"

It is emphasized again in the WCAB's opinion that the "parties stipulated that applicant sustained a cumulative industrial injury to his back, neck, shoulders, knees, right elbow, and right foot from 1996 through April 20, 2005 at various locations in California."

There was dispute about some other body parts.

"At trial, defendant stipulated to industrial injury in California. (Citation.) Although defendant argues incorrectly that the de minimis standard precludes jurisdiction, it concedes that applicant sustained 'mictrotraumas' in California which contributed to his cumulative injury. (Citation.) The WCJ therefore properly exercised jurisdiction over applicant's claim." [Emphasis original.]

The WCAB also noted that there was no forum selection clause governing industrial injury claims.

The WCAB did its job correctly in the Williams case. If the defendant didn't feel that there was an injury in California, microtrauma or not, it should have not stipulated to such.

But it did and as a consequence, based on long standing, well established California law, jurisdiction was asserted.

I doubt the Court of Appeals will find differently.

How A Federal Take Over Could Occur

Last week I wrote about the expanding influence, and perhaps, jurisdiction of the federal government over our lives, and in particular (of course) workers' compensation.

Yesterday I argued that California Assembly Bill 1309 was bad law and should not get to the governor's desk.

The two may come together - when we look at the various legal and legislative/ regulatory actions going on regarding professional athlete injuries and the politics across the nation concerning the limitation of jurisdiction - we see argument why workers' compensation may need uniformity and consolidation; ergo, federal control.

I'm not saying I'm in favor of a federal take over of workers' compensation, but look at these facts and tell me whether or not, if you were a federal legislator, you would be inclined to mandate a federal system of workers' compensation, at least for professional sports that cross state lines whether via live participation or virtually via television or other media, and other migratory industries.

After arbitrator Michael H. Beck on Dec. 12 issued a decision saying football players signed contracts agreeing to file work comp claims in the state where the team was located, rejecting the player's arguments that the order violated a federal court ruling stating that there needs to be an opportunity to demonstrate where the injuries occurred, a federal judge has granted a hearing on a proposed order that would overturn Beck's decision.

In July, a federal judge in Philadelphia is expected to rule on whether former players can sue the National Football League about concussion-related injuries. An estimated 4,300 former players have filed lawsuits that have been consolidated in the U.S. District Court for Eastern Pennsylvania but the NFL seeks dismissal on the argument that the suits are preempted by the collective-bargaining agreement between the league and the NFL Players Association.

In April, Arizona Gov. Jan Brewer signed a bill similar to California's AB 1309 that prohibits people working for employers in the state from filing work comp claims for injuries sustained while working temporarily in another state.

Other states have also passed laws limiting the ability of professional sports athletes to seek redress in states other than that of the players' contractual domicile, most recently Florida and Tennessee.

Then on Thursday a district court judge in Washington, D.C., allowed Bryan Namoff, a former soccer player to proceed with a $12 million civil suit against his former team for medical negligence alleging his former team, D.C. United, allowed him to play too soon after a head injury.

Judge Natalia M. Combs Greene said D.C. United didn’t have insurance and wasn’t exempt from suit as a consequence.

“The liability of D.C. Soccer is clearly outside the coverage of the WCA,” she wrote. “D.C. Soccer failed to secure workmen’s compensation insurance coverage for Namoff and the WCA grants an employee the right to bring a case at law against an employer who fails to secure such coverage.”

Don't forget the disparity between state jurisdictions on how to handle the ongoing issue of opioids and other prescription drugs.

Some states have drug monitoring programs, others don't. Some states restrict drug repackaging, most others don't.

The migration of drugs across state lines occurs as soon as a neighboring state implements restrictions that impede the prescription, procurement, delivery or ingestion of drugs.

Where's the Food and Drug Administration in all of this?

And don't forget the financial impact of big insurance across state lines, in particular when an insurance company is "too big to fail" and the federal government is inclined to bail that company out, all while evidence mounts that there was surreptitious use of questionable financial instruments to avoid premium taxes and other state obligations.

Still to this day, there are fights between states regarding failed workers' compensation carriers - New York's Liquidation Bureau has filed a petition in New York Supreme Court seeking to be appointed ancillary receiver of Ullico Casualty Co. while in Illinois the Circuit Court of Cook County has refused to stay proceedings involving Ullico despite a Delaware court order to the contrary.

Fights between jurisdictions, big money on the line, worker rights over safety and benefits, inconsistency in awards or order enforcement, migratory claims and drugs - the list can go on why some federal lawmakers may want to carve out certain jobs and industries and make them subject solely to federal jurisdiction.

Combine the above with a federal agency examining workers' compensation across the nation, a federal insurance oversight office, and overall expansion of the federal government and it's not hard to see how a federal take over of at least a portion of state workers' compensation systems could occur.

I'm not saying this is inevitable, desirable or reprehensible. I'm just saying ...

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.