Flipping The Bird

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There's taking advantage of a situation.

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

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

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

Football - Of Course...

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

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

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

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

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

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

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

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

Travelers was the 49ers workers' compensation insurance company.

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

Finally in 2012, he retained the assistance of counsel.

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

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

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

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

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

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

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

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

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

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

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

It's a shame.

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

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

Super Bowl of Head Trauma

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NFL Suits Bring Awareness

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

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

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

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

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

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

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

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

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

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

NFL suits bring attention to work place safety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 ...

TN Sets Tone for Other Manufacturing States

Tennessee is moving forward with a cost-conscious driven reconstruction of its workers' compensation system, with lawmakers passing big changes to the state's work comp laws making it harder to file a claim for benefits in the state.

But at least if there's a dispute it should move along much faster after July 1, 2014.

That's the date that the state's new workers' compensation court within a revamped state Division of Workers' Compensation comes on line. This, in my opinion, will greatly improve the speed at which disputes about workers' compensation move through the judicial process which means faster benefits to workers and lower expense to carriers (which in turn should lower premiums for employers).

And there may be more disputes, at least initially, to determine just what a compensable claim is.

The legislation radically alters the definition of AOE/COE by limiting compensation to injuries that arise "primarily out of and in course of employment" only if a worker can show by a preponderance of the evidence that employment contributed more than 50% to the cause of the injury.

In order to treat injured workers, doctors would have to attest to a "reasonable degree of medical certainty" that more than 50% of the need for medical treatment was caused by in injury.

Tennessee's employers have done a masterful job of deflecting liability for work-related injuries or illnesses in this legislative session.

It seems to me that the only injuries that are going to fall within the jurisdiction of workers' compensation in Tennessee are very specific, completely uncontroverted injuries (in which case maybe that special workers' compensation court isn't going to be needed all that much anyhow...).

Otherwise, I don't see too many doctors stepping up and making any attestation as to causation. They will just provide treatment to the injured worker under an alternative payment plan such as group health or applicable Affordable Care Act plan (if in place), or cash.

Bradley Jackson, director of government affairs for the Chamber of Commerce and Industry, said Friday the 2013 session was a victory for business groups, and there is no doubt about that - particularly if a Tennessee business feels that its group health is a better bargain than workers' compensation.

The ability to deflect a claim out of the work comp arena affects not just the medical component, but also any liability for indemnity, return to work/rehabilitation requirements and "discrimination" claims as well.

But this begs the alternative - if a claim is valid (i.e. there is no dispute that there in fact is some injury) but is legally not a workers' compensation case because the worker can not show by a preponderance of the evidence that work contributed at least 50% causation - is the door open for civil liability (and attendant expenses), and will this raise the cost of other property/casualty insurance for businesses?

I don't know the answer to that, and perhaps some expert from Tennessee could opine on that issue.

Continuing the national trend to appease owners in the National Football League, the House and Senate also voted last week to approve SB 432, which was supported by the Tennessee Titans National Football League team. 

As amended by the House, the bill applies Tennessee benefits to workers injured out-of-state if they are injured in a state in which they have worked less than 14 consecutive days or 25 days a year. The bill would allow Tennessee workers assigned to another state for longer periods of time to choose the state in which they file for benefits.

These restrictions are not dissimilar to the recent restrictions passed and signed into law by Arizona, and which are pending debate in California.

Current Tennessee politics is described as dominated by Republican super majorities in both the House and Senate that helped push through the agendas of the Tennessee Chamber of Commerce and Industry and the National Federation of Independent Business.

So we have to assume that the people of Tennessee are good with these new laws - they voted in the legislators who comprise this strong voting block.

And maybe the reason is that the people of Tennessee see new jobs on the horizon, as America returns to its global status as a manufacturing prowess, beating out the countries formerly considered "emerging economies" we had relied upon for this work.

Jason Zweig, a columnist with the Wall Street Journal, on Friday wrote about Antoine van Agtmael, who is credited with inventing the term "emerging market" to describe, essentially, third world countries with cheap labor and good technology that could manufacture goods for export on a global basis.

Agtmael made fortunes for himself and others that invested with him by investing in companies that made stuff in emerging markets.

Now Agtmael is saying that the next big emerging market is the United States itself.

As wages and commodities increase in price, improved technology and energy independence is making it much cheaper to manufacture in the United States.

"U.S. manufacturing is becoming more competitive than you would think, and China's less," Mr. van Agtmael says in Zweig's column. "And the idea that manufacturing is old-fashioned is itself old-fashioned."

Even more pointedly:

"My belief is that markets are not efficient, but they are emotional," Mr. van Agtmael says. "They are driven by raw feelings. Why has everybody been surprised by how well the U.S. stock market has done lately? Because they're only beginning to realize the glass is half-full again instead of half-empty."

And that may be so with the state of Tennessee, which has an economy with a substantial manufacturing base.

According to the National Association of Manufacturers, manufacturers in Tennessee account for almost 15 percent of the total output in the state, employing 11.4 percent of the workforce. Total output from manufacturing has ranged from $31 to $40 billion for the past several years - $36.3 billion in 2009.

In 2010 manufacturing was responsible for 92% of the state's exports.

So making stuff in Tennessee is a major component to the state's economy and we have to assume that, consequently, the changes to the state's workers' compensation laws are reflective of this reality.

But the requirement that a worker show by a preponderance of the evidence that employment contributed more than 50% to the cause of the injury seems to me like one of those emotional decisions of which van Agtmael speaks. It sounds good on paper, but after the ink dries and it is applied in real life its effect may be far from what was intended.

Tennessee may not seem like a trend setter, but for states with current, growing and/or emerging manufacturing bases to their economies, it is setting a well defined path and I believe that other states will follow its lead.

AZ Did It, CA's Next; Why Stop There?

Arizona Gov. Jan Brewer signed SB 1148 on April 3.

This new law prohibits people working for employers in the state from filing workers’ compensation claims for injuries suffered while temporarily working in other states.

SB 1148 defines temporary work as fewer than 90 continuous days out of the 365 days immediately preceding the date of injury. In addition to prohibiting an Arizona worker from claiming benefits in another state, the bill also prohibits an out-of-state worker from seeking benefits in Arizona provided:

• The employer has a policy that covers his workers while they are in Arizona.
• The laws of the state covering the workers temporarily assigned to Arizona are the sole remedy against an employer for a workplace injury.
• An Arizona employer with workers temporarily in another state is subject to Arizona workers’ compensation laws, not the laws of the other state.

Arizona is mad at California and apparently isn't going to take it anymore.

Jim Stabler, chief counsel for SCF Arizona, testified in support of the bill during a House Commerce Committee hearing in March. Stabler said SCF has to maintain a full-time third-party claims office in California because of the state’s “nebulous cumulative trauma doctrine.”

"Nebulous" is defined as "hazy, vague, indistinct, or confused."

From Sullivan on Comp, section 5.5:

A cumulative injury is commonly referred to as a cumulative trauma (CT) injury or a continuous trauma injury. Per LC 3208.1, a cumulative injury occurs as a result of "repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or the need for medical treatment." The California Supreme Court has also stated that a cumulative injury occurs "as the result of a number of minor strains over a period of time" and are "traumas which are minor in themselves but eventually result in disability." The Court of Appeal has added, "A cumulative injury is one which results from repetitive events, occurring during each day's work, which in combination cause any disability or need for medical treatment."

I don't find this doctrine "nebulous" at all - it may be disconcerting to someone not from California, or an insurance executive with uncomfortable with California law, or a professional sports team seeking to escape long term liability for traumatic brain injury medical claims - but I would not characterize it as nebulous.

Yesterday the California Applicants Attorneys Association (CAAA) issued a press release statement officially condemning AB 1309 (Perea, D-Fresno), a measure similar to the one just signed into law in Arizona.

Assemblyman Perea said in a statement after his bill was introduced that “there’s no rationale for burdening our system with thousands of claims for millions of dollars for non-specific injuries from athletes with little connection to our state.” Athletes are entitled to workers’ compensation benefits, “but they should file where they work and live, like anyone else,” he added.

Right.

So are traveling salespeople, truck drivers, flight attendants, migrant farm workers, executives with multi-state jurisdictions, etc.

Oh, and don't forget the coaches, cheerleaders, attendants and all of the other people that travel with the athletes.

Why are athletes singled out?

What is different about professional football, baseball, hockey and basketball players?

That's rhetorical - the difference is long term medical issues - like traumatic brain injury, encephalitis, hip and other joint replacements - medical issues that have root in long term abuse and over use, but otherwise would not be covered by a state's workers' compensation system (other than California's) because they are maladies that build up over time. THAT's what's different.

California recognizes that some injury modalities may not be properly recognized in the context of a single "injury".

Like it or revile it - California grew to the nation's biggest state in part because the government made a promise to the people that moved here that there was a safety net. Some of that safety net is in state disability coverage, some of it is in state unemployment benefits, and some of it is in California's workers' compensation laws.

Is it perfect?

Heck no - far from it. And we have seen the response from business groups since the early 1990s trying to rectify what they see as an impediment to their thinking of how business should be done.

The real danger with AB 1309, as CAAA rightly points out, is that it is the first step towards the entire elimination of the cumulative trauma doctrine.

As much as I dislike the multitude of presumptions that favor certain classes of workers making injury claims, I also dislike the discrimination against certain classes of workers.

And more importantly, I disfavor the disintegration of laws that seek to provide redress and remedy where an injury, as real as any other injury, doesn't fit neatly within the context of a specific event.

Arizona can have their SB 1148 (thought I think the people of that state will live to regret it). But California doesn't need AB 1309.

Supporters of AB 1309 should be truthful and admit that they'd just rather get rid of workers' compensation ... if only they could also avoid civil liability for using up the working class.

Big Business versus the EWJ

While the ongoing dispute concerning whether professional sports employees (aka athletes) in the National Football League can seek redress for their work injuries in California in contravention to collective bargaining contract provisions seems limited in scope, what happens with the NFL cases can have implications for many, many different occupations.

The most recent legal maneuvering has a federal court consolidating three lawsuits concerning 118 players in which the players have pursued their California claims despite an arbitrator's final and binding order to cease and desist.

In addition the NFL has filed a countersuit seeking attorneys fees from the players, and a declaration that the plaintiffs must file all workers’ compensation claims in the venue specified by their contracts and drop any pending claims in California.

As you likely know this controversy concerns California's recognition of cumulative trauma as an injury - a relatively unique provision of law that isn't a part of most other states work comp systems.

Cumulative trauma scares the NFL (and its insurers) because of the recent increase in claims for traumatic brain injury - these cases can involve millions of dollars in medical expense over the life of the athlete.

The arbitrator in the 118 cases found that the players pursuing claims in California all signed contracts requiring them to file workers’ compensation claims in the state where the team was located.

He ruled that there is a distinction between a claim for a specific injury occurring in California and a cumulative trauma claim. A player can’t contract away his right to file a claim in California for a distinct injury suffered in the state, but choice of forum and choice of law clauses can be invoked to prevent a player from filing a cumulative trauma claim in California, said the aribtrator.

The players' argue that the arbitrator ignored the law, denied them due-process rights and violated California public policy.

While this legal action was going on, the California Workers' Compensation Appeals Board (WCAB) ruled that it does not have jurisdiction over such injury allegations where there is a forum-selection clause in a collective bargaining agreement.

The player in the WCAB case, former Arizona Cardinals Dennis McKinley, has appealed saying the California law prohibits the enforcement of a forum-selection clause that would force a party to a jurisdiction where no relief is available. Because the statute of limitations to file a claim expired in Arizona, McKinley can’t file a claim in that state and the WCAB should have exercised jurisdiction over his case, court documents say.

The WCAB has many more NFL cases pending.

In the meantime, the NFL and its supporters from other sports leagues, have been pursuing legislative remedies in California, Arizona and other states, with bills that would limit the ability of professional athletes (specifically football, baseball, hockey and basketball) from seeking redress in any other state's work comp systems where there is a forum selection clause.

All of this activity, publicity, argument and discourse has incited passion, particularly with football fans, who are particularly passionate themselves about the game. The perception of the Everyday Working Joe (EWJ), from what I've been reading in public forums, is that the players are whiners, not content with their good fortune of playing in the NFL and making huge sums of money.

What is lost in the debate, however, is the global effect of these cases and legislative actions - if it's a football player's rights today, who's to say it's not a pipe welder's, or field worker's, or traveling salesman's rights tomorrow?

California law already has provisions where workers under a collective bargaining agreement may be subject to alternative arrangements for work injuries, including arbitration of disputes. These are known as "carve-outs."

But there are certain limitations.

For instance, no contract can deny a worker benefits any less than what would be available under normal California law. And while disputes may be subject to arbitration, an award is always subject to review up the chain of appeal just like any award from a workers' compensation judge.

Most people don't care about the NFL cases. To the EWJ this is nothing that affects them other than the possibility of an increase in ticket prices, or perhaps the relocation (or non-location) of a sports franchise. They don't see any connection between what happens to the rights of a big time sports star and their jobs in the Daily Grind.

The old saying, ignorance is bliss, applies to most things workers' compensation for the EWJ until they actually have a work injury. Then the tune changes.

In any debate one can either sit on the sidelines, or take a side. I'm taking a side - the side of the players.

What we are seeing is nothing more than an attempt to subvert a state's laws through contract. In my mind, that is a very dangerous legal precedent to uphold, and must be examined very, very carefully for the consequences to society can be damaging beyond imagination.

In the big picture, this is not about forum selection, binding arbitration, cumulative trauma, or any of the other legal arguments.

It's about Big Business versus the EWJ.

This argument was settled 100 years ago and the verdict then was that workers' compensation was a cost of doing business.

Why Chip Away at Work Comp? Let's Just Get Rid of It

California Assembly Insurance Committee Chairman Henry Perea (D-Fresno) introduced AB 1309 late Friday, February 22.

AB 1309 seeks to exempt professional athletes that are temporarily in California from coming under the state's jurisdiction for workers' compensation benefits.

The bill would amend Labor Code section 3600.5, a code section that otherwise extends extraterritorial jurisdiction on claims that arise due to causation in California, regardless of the extent of California connection and whether or not the employer is based in the state.

According to the bill preamble:

This bill would provide that an employee hired outside of this state, his or her dependents, and his or her employer shall be exempt from this state's workers' compensation laws if the employee is a professional athlete, defined, for purposes of these provisions, to include an athlete who is employed at the minor or major league level in the sport of baseball, basketball, football, hockey, or soccer, and that professional athlete is temporarily within this state doing work for his or her employer. This bill would deem a professional athlete to be temporarily within the state doing work for his or her employer if, during the 365 days immediately preceding either the professional athlete's date of injury, or, in the case of an occupational disease or cumulative injury claim, the professional athlete's last date of injurious exposure while employed anywhere as a professional athlete, the professional athlete performs less than 90 total days of required services within the state under the direction and control of the employer. The bill would provide that if the employee is a professional athlete, the date of injury in cases of occupational diseases or cumulative injuries is the date of the employee's last injurious exposure while employed anywhere as a professional athlete, or the date of diagnosis, as defined, by a licensed physician, whichever occurs later.

The bill would also provide that an employer of a professional athlete that is subject to California's workers' compensation laws is not liable for occupational disease or cumulative injury if at the time application for benefits is made the professional athlete performed his or her last year of work in an occupation that exposed him or her to the occupational disease or cumulative injury as an employee of one or more other employers that are exempt from California's workers' compensation laws or pursuant to the above provisions or any other law. The bill would provide that these changes apply to all pending claims for benefits, as specified.

The proposed amendment defines "professional athlete" as "an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, hockey, or soccer."

According to the Los Angeles Times, Perea said that AB 1309 is expected to be a "starting point" for a lively legislative debate over whether claims from out-of-state retired players represent abuse of the California workers' compensation system and wind up hitting all California employers with higher premiums and surcharges that pay for outstanding claims left by failed insurance companies.

Puh-leez.

While some professional athletes have outsized salaries compared to the Average Working Joe (AWJ) the truth is that indemnity benefits are capped so Kobe Bryant can't get any more in benefits than the AWJ.

By the way, according to the U.S. Bureau of Labor Statistics (BLS), the average annual salary of professional athletes is only $79,460.

And do professional athletes really comprise that much of the work force that their alleged "abuse of the California workers' compensation system" really affect other employers?

What a sad, inaccurate and tired argument that is.

Again, according to the BLS in 2008, only about 16,500 held jobs as professional athletes and sports competitors.

Let's say that the BLS stats are erroneous and there are twice as many professional athletes and sports competitors than reported. Let's say that the stats are grossly erroneous and that there are ten times as many professional athletes.

Even at 10 times the BLS stats, the professional athlete population is SO small that it doesn't even represent a drop in the bucket of the total employed population. Heck, it doesn't even represent a molecule of water vapor...

In addition, according to the Times article, only about 4,500 out-of-state players have won workers' compensation judgments or settlements since the early 1980s.

So Perea's argument that there is any connection between "claims from out-of-state retired players" driving up costs for all state employers and causing the failure of insurance companies is completely preposterous.

What is really behind this legislation?

The rumors I have heard point the finger at the National Football League (NFL) in a retaliatory move against players that are seeking to hold the league, its owners and the teams accountable for some serious injuries that have more recently come to light, in particular following the suicide death of popular San Diego Chargers player Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case.

AB 1309 is bad law. There is no compelling social benefit from this law, and worse, I believe it opens the spigot even further towards the decimation of workers' compensation coverage for most all employees.

If employers don't want to pay for workers' compensation in California then employers should just seek to terminate the system.

Boom. Gone. Done.

Then there would be no more "higher premiums and surcharges that pay for outstanding claims left by failed insurance companies."

If that's what the employers who do business in California, or any state for that matter, want then let's just get it over with. Professional sports is leading the way in making workers' compensation irrelevant to modern society.

Let's just get it over with and end the debate - get rid of work comp.

Otherwise let's find something a bit more substantial to debate in Sacramento, or any other state capital for that matter, like our sad state of economic affairs, out of control taxation and poor financial decision making.

Perea should be truthful with us: AB 1309 is a red herring that's really intended to open the debate on the elimination of ALL continuous trauma claims and ALL extraterritorial recognition of injurious causation - not just those of professional athletes.

I'm calling BS on this measure. You should too.

Head Injuries and Cruel Behavior

The National Football League is big business, big entertainment, big athletes, big everything.

Its workers' compensation issues are big too.

The American football watching public takes for granted the hazards frequented by professional football players since the dazzle of big screen LED and pageantry of spectacle that surrounds every game cloud the reality of the sports dangers.

But the occupational hazard of protracted physical contact is becoming more and more public, and with the recent suicide death of San Diego darling, Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case, more pressure is on the league than ever before to provide a "safe" workplace for the players.

Traumatic brain injury is little understood by the public, until someone close sustains it, then one realizes how much life changes.

I had a friend who committed suicide by jumping from a bridge following a very difficult number of years post traumatic brain injury.

My friend was a very successful businessman, and a very gifted athlete. He lived life big - everything he did was outsized and he took as much from life as he could.

Then he fell on his head on a motocross track and sustained a very serious concussion.

After he recuperated his wife noticed he wasn't the same. His friends also noted the he behaved differently. He was moody, thought processes became cloudy, decision making was ineffective, questionable and prolonged.

The depression brought about by traumatic brain injury eventually took over his life and he decided to end it.

I can't help but think that this was went through Junior Seau's mind. Head injuries accumulate, and alter thought processes.

Junior knew his mind wasn't right - that must be why he shot himself in the chest. If he shot himself in the head then science would not be able to study his brain.

Seau's death followed the suicide of former Falcons safety Ray Easterling on April 19 of what police called a self-inflicted gunshot wound. He was one of the plaintiffs in a class action concussion lawsuit brought by a large group of former NFL players.

Just one year ago Boston University researchers issued a report on the autopsy of former Chicago Bears defensive back Dave Duerson. Duerson months earlier had shot himself in the chest – like Seau – and wrote a note to his family, asking that his brain be sent to doctors for study.

The report came back that Duerson had brain damage common to chronic traumatic encephalopathy, head trauma also found in more than 20 other deceased players.

In the meantime teams combat workers' compensation claims by players seeking to minimize the financial damage of claims being filed in "liberal" states, such as California, which recognize injuries through continuous trauma (CT), rather than just single injury incidents.

Many in business denigrate California's liberal recognition of CT claims because, like many legal issues, the scope and context of a CT injury gets blown out of proportion and abused by people who should not be entitled to benefits.

But there is legitimacy to the CT theory - at least in the game of football and for chronic traumatic encephalopathy.

The NFL has been making a lot of news lately by fining and suspending players, coaches and support staff for illegal hits and other damaging play activity. This is offensive to many fans, who complain that football is by its nature a violent sport, that players are paid a lot of money to engage in the sport and that they should stop crying.

The collective bargaining agreements that the players sign contain jurisdictional clauses for workers' compensation purposes to limit forum shopping so that players can not avail themselves of California law or other liberal work comp state laws.

WorkCompCentral legal editor, Sherri Okamoto, this morning writes about this jurisdictional wrangling and points to the fight between Maryland and Virginia as the Maryland Court of Appeals heard oral arguments in Pro-Football Inc. et al. v. McCants, No. 116, on Thursday. The case involves a claim by former Washington Redskins wide receiver Darnerien McCants against the franchise, which is incorporated in Virginia as Pro-Football Inc.

It is the second case brought by a former Washington Redskins player against the team in Maryland. Last February, the Court of Special Appeals ruled that the Maryland workers' compensation system had jurisdiction over a claim filed by punter Thomas Tupa Jr. for an injury sustained at FedEx Field in Landover, Md.

In February the California Workers' Compensation Appeals Board ruled that Labor Code Section 3600.5(b) foreclosed its ability to take jurisdiction over Vaughn Booker's claim for cumulative injuries allegedly caused, at least in part, by his one professional football game in California.

Booker had signed a contract with the Bengals covering five football seasons. An addendum to this contract provided that Booker "promise(d) and agree(d) that any workers' compensation claim, dispute or cause of action arising out of (Booker)'s employment with the (Bengals) shall be subject to the workers' compensation laws of Ohio exclusively."

After signing the contract, Booker played three seasons with the Bengals. Of the 48 games he played with the team during this time, only one was in California. Booker later filed a claim for workers' compensation benefits in California, claiming to have suffered cumulative injury to various body parts that resulted, at least in part, from the game he played in California.

The Cincinnati Bengals also used Labor Code 3600.5(b) to obtain two panel decisions in 2010 rescinding administrative decisions favoring former wide receivers Eddie Brown and Wesley Carroll.

Legal arguments aside, former Saints and Browns offensive lineman LeCharles Bentley dramatically brought the issue home on Twitter shortly after Seau’s body was found:

“Any other smart ass player want to question why the league is cracking down? One of the baddest dudes may have just killed himself …

“And saved his brain so it can be studied to save future generations from suffering same fate. Yeah, y’all real tough. Life after football is REAL … grown ass men struggle emotionally … young boys don’t see the end … it’s coming. Life lesson today."

These football cases are no different than the one I pointed out several posts ago about the Herman Blair case and the shameful shenanigans Erie Indemnity Co. engaged in to deny this man his benefits because his traumatic brain injury prevented him from remembering the circumstances of his fall from a ladder.

Depression, suicide, bizarre behavior, episodic amnesia - head injuries, specific OR cumulative, produce serious cognitive and emotional issues that can't be taken lightly and unfortunately suicide seems to be a common way out for those who suffer the trauma. Employers and carriers selfishly seeking to limit their monetary obligations when verifiable head injury claims are presented show how cruel mankind can be.

The NFL, Apportionment and Substantial Evidence

It's playoff season in the National Football League so it is only fitting that we get workers' compensation news concerning professional football claims.

In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.

The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.

The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.

The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.

The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.

But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.

The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:

"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."

Here's my take-aways from this case:

1. The "good old days" of "expert opinion" are gone - medical opinion must be supported by both fact and science. Just saying it is, because one is an expert, doesn't make it so. If the Raider's QME was apportioning to other exposure then there needs to be supporting evidence upon which to base that opinion and in this case just dividing up the liability without some evidence in the record that indicates an exposure is not substantial evidence. We see this all the time.
2. When you don't have substantial evidence to support your case, and the other side has better evidence (remember that substantial evidence is evidence that is "good enough"), then there should be an attempt to challenge that evidence. In this case, either get a change in opinion that supports apportionment or disqualifies the opinion completely so you can start over.
3. Professional football is brutal and the players come out of their careers with significant injuries and disabilities. workers compensation, work comp, injured worker