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Keyword: ‘arbitration’

Horton Hears a Contribution Demand

September 7, 2012 Leave a comment

“Even though you can’t hear them or see their jig, an insurer’s a person, no matter how big.”

Such was the rule articulated in Richard Horton v. Crown Cork and Seal, a recent panel decision from the Workers’ Compensation Appeals Board.

Applicant Richard Horton received a stipulated award for a 2002 injury in 2004, entitling him to indemnity totaling $45,262.50 and future medical treatment.  In 2006, he filed a petition to reopen for new and further disability, including a new injury to the psyche.  The matter was against resolved by stipulation, this time at 66%, up from the previous award of 49%.  This time, applicant’s pay day was an additional $21,760.

Well, between the 2002 injury and the 2006 injury, employer Crown Cork and Seal switched insurers from Travelers Insurance Company to American Protection Insurance Company, so APIC naturally filed a petition for contribution from Travelers.  The petition was referred to arbitration.

The arbitrator decided this case on the term “new and distinct benefits” as used in Rex Club v. Workers’ Comp. Appeals Bd.  Rex Club noted that “[i]f the WCAB determined that SCIF could seek contribution only as to the $200,000 awarded pursuant to the 1994 order approving compromise and release, the WCAB is correct to the extent the order awarded new and distinct benefit.”

The arbitrator interpreted this to mean that APIC was barred from seeking contribution form Travelers because the benefits awarded after the 2006 petition to reopen were not new and distinct from those awarded in 2004.

The WCAB disagreed and granted APIC’s petition for reconsideration.  In arriving at its decision, the WCAB reasoned that “[t]he second award provided benefits for new and further disability arising out of the original injury as well as disability arising from an injury to the psyche as a compensable consequence of the original injury.


Categories: Uncategorized

9th Circuit Bars NFL Workers’ Comp Claim

An exciting development in the ongoing insanity that allows non-California athletes, and by extension, all visiting employees, to file workers’ compensation claims in California.  In the case of Bruce Matthews v. National Football League Management Council, the 9th Circuit Court of Appeals ruled that applicant Bruce Matthews does not have the right to file a workers’ compensation claim in California, despite the fact that he did play 13 games in the Golden State.

Matthews had tried to exploit a loophole in California’s workers’ compensation system to pursue his claim in California, despite never playing for a California team in his over-twenty-year career.  His team and the NFL Management Council sought to enforce an arbitration agreement to require Matthews to bring his claim in Tennessee.

The 9th Circuit Court of Appeal was not impressed.

The reason?  “In his application for workers’ compensation benefits, Matthews asserted that he suffered cumulative injuries incurred at “various” locations between 1983 and 2001. He did not allege any specific injury in California … Indeed, Matthews did not even allege that he played football in California, although we take judicial notice of the fact that Matthews’ teams played 13 games in California during Matthews’ 19-year career.”

So what’s the 9th Circuit looking for?  Well, it looks like an applicant needs to show signs of a discrete injury, the use of California’s medical treatment system, and perhaps the use of California’s legal system in pursuing the case.  But perhaps this means that the 9th Circuit does not recognize the legal fiction of the cumulative trauma?  After all, several states only recognized “discreet injuries.”

But, most important of all, the 9th Circuit reasoned that the claim would be barred in California…  Obviously wcdefenseca is still not considered a learned treatise.

Categories: Uncategorized

When Falcons Come Home to Roost – More NFL Drama

California is home to an impressive array of professional sports teams.  The list goes on and on of the phalanx formed by the Golden State.  Look on our works, ye Mighty, and despair!  And know this – regardless of what happens on the field, the doom of your team shall be had in our workers’ compensation courts!

Previously, your diligent blogger had occasion to cover that point in space where professional sports and California workers’ compensation intersect.  Naturally – there’s no resolution yet as to how to avoid having California squeeze employers for the alleged injuries of their California-visiting employees.

It appears, however, that the Atlanta Falcons are not going to wait for California to develop her self-restraint:  moving with the National Football League, the Falcons are suing former players to force them to litigate workers’ compensation cases in Georgia rather than in California.

An arbitrator in Georgia, much like an arbitrator in Kansas, held that the players must abandon their California cases and pursue the cases in their employer’s state.  The Falcons and the NFL are suing to get a federal judge to order the players to abide by the arbitration ruling.  The arm of the federal government has grown long indeed if it can reach from Georgia to California.

I guess we’ll have to wait and see what happens – but this may set precedent for non-professional sports cases as well.  Perhaps employment contracts can include clauses requiring workers’ compensation claims to be brought in the employer’s state, and then injuries sustained at conferences and training seminars can be dealt with appropriately.

When WCDefenseCA knows more… so will you.

Visiting California for the Workers’ Comp – Part 3 of 3

So by this point, you’ve read Parts 1 and 2 of this article.  You’ve laughed, you’ve cried, and you’ve decided not to give up on doing business in or with California, and also to stop sending your fragile blogger e-mails accusing me of actively trying to depress you.

So what can you, the employer, insurer, or the self-insured employer do to keep your liability down when you send your employees into California?  For starters, either purchase a California workers’ compensation insurance policy or make sure your current policy covers employees when they are out of the state.  Next, ask your attorney to secure a certificate from your state regarding its workers’ compensation reciprocity laws with California.

And what do you do if your state doesn’t have reciprocity or similar laws?  Lobby, and get them passed.  In 2011, Florida adopted House Bill 723, establishing reciprocity laws.  Michigan followed suit later that year with House Bill 5002.  If your state does not have a reciprocity law, perhaps some lobbying dollars spent now can save workers’ compensation dollars in the future.

Kansas has taken another approach.  A recent arbitration ruling in a case between the Kansas City Chiefs and the NFL Players Association held that Chiefs players must bring their workers’ compensation claims in Kansas, ordering the players to abandon their California cases.

The basis of this ruling appears to be the contract terms between the players and the team.  From noted sports-law blogger Daniel J. Friedman, of LockoutLowdown:

“Article 41 of the newly ratified NFL CBA encompasses the NFL and NFLPA’s ‘Worker Compensation’ plan.  As part of this agreement, under Art. 41, Sec. 5 states ‘The parties shall immediately establish a joint committee that will make good faith efforts to negotiate a possible California Workers’ compensation alternative dispute resolution program on a trial basis (i.e., carve out).’  However, Sec. 6 Reservation of Rights states ‘The parties shall retain the positions they held prior to this Agreement with respect to all existing litigation and arbitration involving workers’ compensation issues, including without limitation, the federal and state courses in California (Titans), Illinois (Bears) and New York (Mawae, Harvey) regarding offset issues or choice of law and forum provisions contained in NFL Player Contracts, and nothing in this Article shall affect positions taken in any such pending litigation.’    I do not think that the carve out provision has been agreed to yet but the resolution in this case likely tilts the balance of power back to the League’s favor as they continue to make ‘good faith efforts’ in coming to an agreement related to carve-out.  I would not be surprised if the players in this situation appeal.  However, because this was an arbitration, it will be very difficult to have the ruling overturned unless they can prove their was an abuse of process.”

But, given the fact that California regards contract terms waiving access to California’s workers’ compensation system to be unenforceable, it remains to be seen how effective this approach will prove.

The State of Oregon has put together a list of the reciprocity laws of various states.  You can review it here.  Your humble blogger does gently suggest you verify for yourself any citations found on this website – I certainly have not done so and can not make any claims as to its accuracy or current status.

So, will this fearless blogger, cumulatively traumatized by California’s workers’ compensation system, be seeing you in the Golden State anytime soon?

Regulating the Economy Towards Prosperity

September 8, 2011 8 comments

The refreshing winds of September are filling the air, and as they sweep in, they bring with them that rosy scent of fresh legislation: as always, fiery, thick, and perfectly half-baked.  Two pieces of would-be/will-be law have come under the popular spotlight recently.  The first is that of Assembly Bill 889 put forward by Assemblyman Tom Ammiano (D – San Francisco).

The bill would require rest-breaks, over-time pay, and (you guessed it) workers’ compensation insurance for domestic workers such as care persons, nannies, babysitters and cleaners.

While exempting babysitters under the age of 18, I expect this bill, if made law, to send presently free-lance domestic workers into the arms of organized companies.  No matter how much I want to see a perfectly good classic movie ruined by a modern-recreation in a theater, I have no intention of hiring a human resources staff to help me comply with this law while hiring a babysitter for the evening.  I imagine the typical parent in California will likely feel the same way.

So free-lancing, self-employment for babysitters and other domestic workers might decrease, insurance profits may go up, and Sacramento will press harder on small employers with its left hand while continuing to squeeze larger businesses with its right.

The second piece of legislation is Senate Bill 684, which makes it more difficult for insurance companies to have and to enforce arbitration clauses in their workers’ compensation insurance contracts, by requiring a separate disclosure of the existence of the arbitration clauses, the venue and choice of law of the arbitration, and the fact that they are negotiable.

Authored by State Senator Ellen M. Corbett (D – San Leandro), the legislation was greeted with enthusiasm by Insurance Commissioner Dave Jones in a Department of Insurance Press Release.

Many insurance companies are regional or national, and so would normally be subject to the contract laws of several states (wherever their policy holders entered into the contract).  Arbitration clauses allow all disputes to be resolved in one state, and the insurance company’s legal department needs to know only one state’s laws.

Now, insurers will have to either face increased costs in negotiating, quoting, and preparing insurance contracts, or retain different legal departments for every state in which they offer their services.  But while the costs of operation go up, workers’ compensation insurance rates are set by law and cannot be increased.

SB 684 has passed both the Assembly and the Senate and now awaits Governor Brown’s signature.  Perhaps, if the legislation is signed into law, an update will be necessary on the benefits of self-insurance.

Categories: Insurance, Legislation