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DePaolo's Work Comp World - Big Business versus the EWJ

 

FOR IMMEDIATE RELEASE: Wednesday, March 27, 2013
Contact: Steve Hopcraft 916/457-5546, Steve@hopcraft.com; Twitter: @shopcraft
 
In case you missed it…
DePaolo's Work Comp World


Big Business versus the EWJ

By David DePaolo
Originally Published Tuesday, March 26, 2013

 
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 occurringin 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.

 
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