SPORTS INJURY CASES IN CALIFORNIA

SPORTS INJURY CASES IN CALIFORNIA Bradford & Barthel, LLP Sports Law Division Chris P. Stettler, Esq. www.bradfordbarthel.com 1

Before we get started Certificates will be emailed w/in 48 hours MCLE credits for attorneys not offered today Access PowerPoint at: www.bradfordbarthel.com > Education > Upcoming Webinars To control background noise, attendees will be muted for entire presentation We encourage questions which can be submitted through your GoToWebinar Panel; they will be answered at the end of the presentation www.bradfordbarthel.com 2

Sports Injury Cases in California A. Professional Athlete Claims in CA B. Jurisdictional Issues C. Competent and Knowledgeable Representation D. Contract Cases E. Forum Clauses F. Labor Code Section 3600.5(b) Employees Temporarily in State Working G. New Labor Code Section 3600.5 Effective September 15, 2013 H. Constitutional Due Process Issues I. Medical/Legal J. Bifurcation of Threshold Issues K. Which Rating Schedule Applies www.bradfordbarthel.com 3

A. Professional Athlete Claims in California Although the majority of states recognize professional athletes as workers under the Worker's Compensation statutes, not all states recognize the same type of workers compensation claims. Under a cumulative trauma claim, the worker claims to suffer chronic injuries due to frequent and repetitive activities or a repeated injury. An important distinction between a specific and cumulative trauma injury is when the clock for the Statue of Limitations begins to run. Generally, for a specific injury claim, the Statue of Limitations begins on the date of injury. For cumulative trauma claims, the clock begins when the worker is diagnosed. Hence, cumulative trauma claims are particularly attractive to professional athletes because their injuries may not manifest until after their career. Only a handful of states recognize cumulative trauma claims, California being one of them. www.bradfordbarthel.com 4

A. Professional Athlete Claims in California More than two thirds of all cumulative trauma claims filed by athletes in California are from out-of-state. On average, 34 new claims are filed each month and the California Insurance Guarantee Association has paid nearly $42 million in claims to professional athletes since 2002. The average cost to settle an NFL player s workers compensation claim is over $200,000. The cost, coupled with the high volume of claims (4,500 filed against NFL teams in California since 2006) has resulted in an estimated $1,000,000,000 expense for NFL teams. (Workers Compensation and The Professional Athlete, 12/29/13.) www.bradfordbarthel.com 5

A. Professional Athlete Claims in California California Assembly Bill 1309 enacted in 2013 provides some relief to professional sports teams by limiting the eligibility of who can file a cumulative trauma claim in California. Generally, only those players that spend "more than 20% of their professional time in California or worked for a California-based team for part of their professional or semi professional career" can file a cumulative trauma claim in California. However this only applies to claims filed after September 15, 2013. The purpose of the bill was to correct abuses in the system. Workers compensation claims for professional athletes are being filed with greater creativity, the trend of which is expected to continue. www.bradfordbarthel.com 6

B. Jurisdictional Issues The California workers compensation law applies to all industrial injuries occurring within the state. It also applies to any injury occurring outside the state if the contract of employment was made in California (Labor Code Section 3203, 3600.5, 5305). An employment contract is deemed made in California if it is accepted in California. (Travelers Ins. Company vs. WCAB (1967), 68 Cal 2D 207, 32 Cal Comp Cases 527.) California's compensation statute applies to an injury received outside California if the employee is regularly employed here, even if the contract of hire was not made here. (Labor Code Section 3600.5 (a)) However, when the contract is not made in California, and the employee is not regularly employed here, the mere fact that the employee is a California resident is not sufficient to confer jurisdiction on the Appeals Board. (Johnson vs. WCAB (1988) 53 Cal Comp Cases 495 (Writ Denied)). www.bradfordbarthel.com 7

C. Competent and Knowledgeable Representation Constitutional Issues In a case filed prior to September 15, 2013 and thus not subject to application of the 2013 amendments to Labor Code Section 3600.5, the Court of Appeal, annulling an Appeals Board decision and remanding to the Board with directions to dismiss the employee's application for workers compensation benefits, held that California did not have sufficient interest in the case to apply California workers compensation law and to retain jurisdiction over it. The case involved a professional athlete who played one of 34 games in California. The issue, the court noted, was governed by the due process and full faith and credit clauses of the United States Constitution, and the test was whether California had an interest that was legitimate and substantial. If California lacked a sufficient relationship with employee s injuries, requiring the employer to defend the case in the state of California would be a denial of due process, meaning that the courts of this state would lack the authority to act and would lack subject matter jurisdiction. The court stated that the effect of a single game on her injury was "at best de minimis." (Federal Insurance Company vs. WCAB (Johnson) (2013) 221 Cal App 4th 1116, 78 Cal Comp Cases 1257.) It is important that counsel for defendant is prepared to move beyond the WCAB to the Court of Appeal as the WCAB does not have authority to entertain Constitutional Issues. Bradford and Barthel has a dedicated and proven Appellate Dept. (See Appellate Unit at home web page Louis Larres, Esq.) www.bradfordbarthel.com 8

C. Competent and Knowledgeable Representation Ratings and Application of the AMA Guidelines Most professional athlete claims, especially football players, have ratings that are very high even when applying the AMA Fifth Edition Guidelines regarding whole person impairment. Generally, anywhere from 3 to 6 medical-legal's are obtained by an applicant pursuing a professional athlete claim to establish a wide range of injuries on a cumulative trauma basis. It is imperative to properly analyze whether the impairment assigned by the evaluating physician has been properly applied under the guidelines. Thus, rating and analysis of the reports is a critical element in defending and litigating the claims. (See Bradford and Barthel Rating Dept. at home web page Phil Billman.) www.bradfordbarthel.com 9

C. Competent and Knowledgeable Representation Anti-Merger Doctrine Most professional athlete claims are comprised of a combination of specific injury claims and one cumulative trauma claim throughout the end of their career. The Anti-Merger Doctrine in Labor Code Section 3208.2 states "when disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit." The legislative intent of Labor Code Section 3208.2 was to nullify court decisions allowing the merger of past specific injuries into a cumulative injury. The court cases giving rise to the Anti-Merger Statute addressed, for the most part, past specific injuries to a worker which were merged into a later cumulative injury thus allowing recovery benefits otherwise barred by the Statute of Limitations. Merging defeated the purpose of the Statute of Limitations and left insurance carriers and employers open to risk for lengthy periods of time. In defending professional athlete claims it is imperative to critically evaluate how many injuries, specific or cumulative trauma, are involved, and then properly apply causation and apportionment rules to the injuries. www.bradfordbarthel.com 10

C. Competent and Knowledgeable Representation New Labor Code Section 3600.5 Although new Labor Code Section 3600.5 still allows players to file cumulative trauma claims, generally only those players that spend "more than 20% of their professional time in California or work for a Californiabased team for part of their professional or semiprofessional career" can file cumulative trauma claim in California. (Labor Code Section 3600.5.) This labor code section enacted by California Assembly Bill 1309 reflects the general trend by both the legislature and courts to limit the number of professional athletes throughout the country who can file claims in California for cumulative trauma injuries. This bill, in conjunction with the recent case of Federal Insurance Company vs. WCAB (Johnson - 2013) clearly have spelled the trend of the legislature and the courts to limit such claims. A review of cases within the last year also shows greater frequency by the WCAB and Court of Appeal to find there is no California jurisdiction to adjudicate the claim. Apportionment and Causation It is critical to the legal defense of the claim to properly and thoroughly explore and apply apportionment and causation principles to make sure that the team or employer is only liable for disability or injury directly attributable to their team. www.bradfordbarthel.com 11

D. Contract Cases Allen vs. Milwaukee Bucks (2013), Cal. Wrk. Comp. P.D. Lexis 138 WCAB found jurisdiction for industrial injuries between 1995 and 1999 and returned matter to trial level for further development of record regarding whether applicant was hired in California for purposes of conferring jurisdiction pursuant to Labor Code Section 3600.5 (a) and 5305. The WCAB found that while applicant s agent negotiated the contract with defendants in California and there was some evidence that applicant authorized his agent to form a contract, it was unclear from the existing record whether the agent actually accepted contract before applicant signed written contract in Milwaukee and that in order to find jurisdiction there must be substantial evidence that employment was actually accepted in California, not merely discussed or negotiated. www.bradfordbarthel.com 12

D. Contract Cases Jenkins vs. Arizona Cardinals (2012), Cal. Wrk. Comp. P.D. Lexis 189 WCAB affirmed its prior decision in the same case determining that under Labor Code Section 3600.5(a) and 5305 the WCAB did not have jurisdiction over applicant s claim against the Arizona Rattlers for injuries to multiple body parts while playing professional football, notwithstanding that applicant s agent negotiated and signed the contract for hire in California. The WCAB found that applicant had the ability to decline the contract negotiated by his agent if he did not want the job, that applicant s signature on contract was not a mere condition subsequent that did not prevent formation of contract, and that when an employee has a right to entirely reject a written contract and does not unequivocally accept contract until signing it outside of California, then contract of hire is not made in California. www.bradfordbarthel.com 13

D. Contract Cases Johnson vs San Diego Chargers (2012), Cal. Wrk. Comp. P.D. Lexis 354 (WCAB panel decision finding no California subject matter jurisdiction) WCAB held there was no jurisdiction under Labor Code Section 3600.5(a) and 5305 over professional football player s claim against three different NFL teams for cumulative trauma when the WCAB found: 1. Applicant was not located in California at the time applicant s contract for hire was accepted, 2. Only connection between applicant s contract and state of California was location of applicant s agent, 3. Agent s signature on contract before applicant signed contract in Kansas City was not determinative of contract s acceptance, as contract for hire expressly stated that the agent did not have authority to bind applicant and that applicant was only one authorized to accept contract and 4. WCAB found the contract was not accepted by applicant s agent in California but rather by applicant outside of the state, thereby depriving the WCAB of jurisdiction. Johnson vs. WCAB (1988), 53 Cal. Comp. Cases 495 (Writ denied). The Appeals Board did not have jurisdiction over injuries sustained by California resident off coast of Oregon where applicant was neither hired in California, nor regularly employed in California. www.bradfordbarthel.com 14

D. Contract Cases Douglas vs. New York Giants (2012), Cal. Wrk. Comp. P.D. Lexis 510 (2012) (WCAB panel decision) WCAB found there was jurisdiction over professional football ballplayer s claim against NFL Europe during period June 13, 2000 to June 30, 2001 when offer of employment occurred by phone at applicant s home in California and he accepted essential terms of employment by phone prior to traveling to Florida. The WCAB found that the offer and acceptance by phone constituted a contract for hire made in California for purposes of jurisdiction over applicant s out-of-state injuries pursuant to Labor Code Section 3600.5(a) and 5305. The fact that applicant signed the actual contract in Florida, had to complete a physical examination outside of California, had to compete in training camp for a position were not dispositive of whether he entered into an agreement with NFL Europe over the phone in California. Also, the fact that the contract could be terminated by applicant or by NFL Europe did not negate existence of the contract. www.bradfordbarthel.com 15

E. Forum Selection Clauses in Contract Matthews vs. National Football League Management Council, 77 Cal. Comp. Cases 711 (2012 United States Court of Appeals for the 9th Circuit) Applicant sought Workers Compensation benefits in California and defendants contended that the application violated the player's employment contract which requires that all workers compensation claims be decided under Tennessee law. The parties submitted the dispute to arbitration and the arbitrator found that the player violated his employment contract by filing a California workers compensation claim. On appeal the court rejected applicant s argument that the arbitration award contravened California's workers compensation policy, federal labor policy, and the full faith and credit clause. The court rejected these arguments and further stated it was not even clear that California would extend workers compensation benefits regarding the player s alleged injuries due to his limited contacts with the state. www.bradfordbarthel.com 16

E. Forum Selection Clauses in Contract McKinley vs. Workers' Compensation Appeals Board (Arizona Cardinals), 78 Cal. Comp. Cases 872, (2013 Writ of Review denied) WCAB En Banc declined to exercise jurisdiction over the claim of a professional football player s cumulative trauma injury when there was a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers compensation must be filed in forum other than California and there was limited connection to California with regard to applicant s employment and claimed injuries. The WCAB also found that it had jurisdiction to determine if it was the proper forum to adjudicate applicant s workers compensation claim because California had personal jurisdiction over defendant. The WCAB further found that applicant was not a resident of California when he contracted to play for defendant, that his contracts of employment were made in Arizona, that the majority of applicant s work duties were performed in Arizona and that the forum selection clause is presumed valid as it was not a product of fraud or overreaching. The WCAB further found that the forum selection clause was not contrary to California fundamental public policy and the applicant as the party challenging the validity of the mandatory forum selection clause, did not carry his burden of showing the clause was unreasonable. www.bradfordbarthel.com 17

E. Forum Selection Clauses in Contract Williams vs. Jacksonville Jaguars (2013), Cal. Wrk. Comp. P.D. Lexis 88 (2013 panel decision) The WCAB declined to exercise jurisdiction over applicant s claimed industrial cumulative trauma injury. The WCAB found that applicant was bound by the forum selection clause in the contracts between himself and the Jaguars from 2007 through 2011 under which the parties contractually agreed that any workers compensation claims will be brought in the state of Florida. The WCAB further found there was no indication that the clause was a product of fraud or overreaching, that enforcement of the clause would be unreasonable or unjust given that applicant selected the forum where his team was located and where he resided, and that proceeding with the claim in Florida would not be gravely difficult or that enforcement of the clause would contravene any public policy. The WCAB further found that the applicant filed his claim in California solely because California s laws, particularly the statute of limitations, were more favorable to his claim injury. www.bradfordbarthel.com 18

F. Labor Code Section 3600.5(b) - Employees Temporarily in State Working An employee who has been hired outside of this state and his or her employer shall be exempt from the provisions of this division while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers compensation insurance coverage under the workers compensation insurance or similar laws of the state other than California, so as to cover the employee s work while in this state if both of the following apply: The Extraterritorial provisions of this division are recognized in the other state The employers and employees who are covered in the state are likewise exempt from the application of the workers compensation insurance or similar laws of the other state. In any case in which Paragraph 1 above is satisfied, the benefits under the workers compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury whether resulting in death or not, received by the employee while working for the employer in this state. It should be noted that the wording in Labor Code Section 3600.5(b) was changed in 2014. The cases below reflect the prior language. www.bradfordbarthel.com 19

F. Labor Code Section 3600.5(b) - Employees Temporarily in State Working Carol vs. Cincinnati Bengals, 78 Cal. Comp. Cases 655; 2013 Cal. Wrk. Comp. Lexis 102 (2013 En Banc WCAB decision) The Appeals Board En Banc, rescinding the Workers Compensation Judge's order and dismissing the defendant as a party, held that the employee and the employer are exempted by Labor Code Section 3600.5(b) from the California workers compensation laws, when the employee was hired outside of California and: 1. The employee is temporarily within California doing work for the employer 2. The employer furnished coverage under the workers compensation or similar laws of another state that covers the employees employment while in California 3. The other state recognizes California's extraterritorial provisions and 4. The other state likewise exempts California employers and employees covered by California's workers compensation laws from the application of its workers compensation or similar laws. www.bradfordbarthel.com 20

F. Labor Code Section 3600.5(b) - Employees Temporarily in State Working The applicant was a former professional football player and was hired outside California. The employee and the employer were temporarily in California for one game. The employer furnished workers compensation under Ohio law that covered the employee's employment while in California. Ohio recognized the extraterritorial provisions of other states, including California, and Ohio likewise exempts California employers and employees covered by California workers compensation laws from application of its workers compensation laws. www.bradfordbarthel.com 21

F. Labor Code Section 3600.5(b) - Employees Temporarily in State Working Foster vs. Toronto Raptors (2013), Cal. Wrk. Comp. P.D. Lexis 253 (2013 WCAB panel decision) The WCAB held that the WCAB had jurisdiction over professional basketball player s claim against various defendants and that it did not matter whether applicant was "regularly employed" in California as described in Labor Code Section 3600.5(a) because jurisdiction was found based upon work related injuries that applicant sustained while temporarily in California playing basketball. The WCAB further found it was irrelevant if applicant was "temporarily" in California within the meaning of Labor Code Section 3600.5(b) while he was playing basketball because defendant did not prove all elements necessary to obtain exemption provided in Labor Code Section 3600.5(b). Lastly, the WCAB did not endorse the Workers Compensation Judge's view that applicant s payment of California income tax on California earnings provided a basis for jurisdiction. www.bradfordbarthel.com 22

F. Labor Code Section 3600.5(b) - Employees Temporarily in State Working Booker vs. Cincinnati Bengals (2012), Cal. Wrk. Comp. P.D. Lexis 113 (2012 panel decision) The WCAB held that they did not have subject matter jurisdiction over applicant s claim against Cincinnati Bengals for industrial injuries suffered by applicant while playing professional football in California for the period specified when WCAB found no basis for territorial jurisdiction over Bengals pursuant to "temporarily" employed provisions of Labor Code Section 3600.5(b) because all four conditions of that labor code section were met as applicant was temporarily employed in California because he played only one game in California during his three seasons playing. The Bengals provided prima facie evidence of self-insurance under the laws of Ohio, which are similar to workers compensation laws of California, the Bengals offered evidence that players injured while playing in California were covered by Ohio's worker's compensation laws, and Ohio recognizes California's extraterritorial provisions and exempts California employers and employees covered by California's workers compensation laws from application of Ohio's workers compensation laws. The WCAB further found it would not exercise jurisdiction based on the parties forum selection clause. www.bradfordbarthel.com 23

G. New Labor Code Section 3600.5 - Effective 3600.5. September 15, 2013 (a) If an employee who has been hired or is regularly working in the state receives personal injury by accident arising out of and in the course of employment outside of this state, he or she, or his or her dependents, in the case of his or her death, shall be entitled to compensation according to the law of this state. (b) (1) An employee who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers compensation insurance coverage under the workers' compensation insurance or similar laws of a state other than California, so as to cover the employee's work while in this state if both of the following apply: (A) The extraterritorial provisions of this division are recognized in the other state. (B) The employers and employees who are covered in this state are likewise exempted from the application of the workers' compensation insurance or similar laws of the other state. (b) (2) In any case in which paragraph (1) is satisfied, the benefits under the workers' compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any injury, whether resulting in death or not, received by the employee while working for the employer in this state. www.bradfordbarthel.com 24

G. New Labor Code Section 3600.5 - Effective September 15, 2013 (c) (1) With respect to an occupational disease or cumulative injury, a professional athlete who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the professional athlete is temporarily within this state doing work for his or her employer if both of the following are satisfied: (A) The employer has furnished workers' compensation insurance coverage or its equivalent under the laws of a state other than California. (B) The employer's workers' compensation insurance or its equivalent covers the professional athlete's work while in this state. (c) (2) In any case in which paragraph (1) is satisfied, the benefits under the workers' compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any occupational disease or cumulative injury, whether resulting in death or not, received by the employee while working for the employer in this state. (c) (3) A professional athlete shall be deemed, for purposes of this subdivision, to be temporarily within this state doing work for his or her employer if, during the 365 consecutive days immediately preceding the professional athlete's last day of work for the employer within the state, the professional athlete performs less than 20 percent of his or her duty days in California during that 365-day period in California. www.bradfordbarthel.com 25

G. New Labor Code Section 3600.5 - Effective September 15, 2013 (d) (1) With respect to an occupational disease or cumulative injury, a professional athlete and his or her employer shall be exempt from this division when all of the professional athlete's employers in his or her last year of work as a professional athlete are exempt from this division pursuant to subdivision (c) or any other law, unless both of the following conditions are satisfied: (A) The professional athlete has, over the course of his or her professional athletic career, worked for two or more seasons for a California-based team or teams, or the professional athlete has, over the course of his or her professional athletic career, worked 20 percent or more of his or her duty days either in California or for a California-based team. The percentage of a professional athletic career worked either within California or for a Californiabased team shall be determined solely by taking the number of duty days the professional athlete worked for a California-based team or teams, plus the number of duty days the professional athlete worked as a professional athlete in California for any team other than a California-based team, and dividing that number by the total number of duty days the professional athlete was employed anywhere as a professional athlete. (B) The professional athlete has, over the course of his or her professional athletic career, worked for fewer than seven seasons for any team or teams other than a California-based team or teams as defined in this section. (d) (2) When subparagraphs (A) and (B) of paragraph (1) are both satisfied, liability for the professional athlete's occupational disease or cumulative injury shall be determined in accordance with Section 5500.5. (e) An employer of professional athletes, other than a Californiabased team, shall be exempt from Article 4 (commencing with Section 3550) of Chapter 2, and subdivisions (a) to (c), inclusive, of Section 5401. www.bradfordbarthel.com 26

G. New Labor Code Section 3600.5 - Effective September 15, 2013 (f) For purposes of this section, a certificate from the duly authorized officer of the appeals board or similar department of another state certifying that the employer of the other state is insured in that state and has provided extraterritorial coverage insuring his or her employees while working within this state shall be prima facie evidence that the employer carries workers' compensation insurance. (g) For purposes of this section, the following definitions apply: (1) The term "professional athlete" means an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, ice hockey, or soccer. (2) The term "California-based team" means a team that plays a majority of its home games in California. (3) The term "duty day" means a day in which any services are performed by a professional athlete under the direction and control of his or her employer pursuant to a player contract. (4) The term "season" means the period from the date of the first preseason team activity for that contract year, through the date of the last game the professional athlete's team played during the same contract year. (h) The amendments made to this section by the act adding this subdivision apply to all claims for benefits pursuant to this division filed on or after September 15, 2013. The amendments made to this section by the act adding this subdivision shall not constitute good cause to reopen any final decision, order, or award. (i) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are severable. www.bradfordbarthel.com 27

H. Constitutional Due Process Issues Federal Insurance Company vs. Workers' Compensation Appeals Board (Adrian Johnson), 221 Cal. App. 4th 1116; 78 Cal. Comp. Cases 1257 (2013, Court of Appeal of California, 2nd Appellate District, Division 5) Applicant, a former professional basketball player, filed a cumulative trauma workers compensation claim in California. The court held California did not have a significant or sufficient interest in the matter to apply its workers compensation law and to retain jurisdiction over the case. The employment relationship is in Connecticut where the team the applicant played for was located. She signed her contract in New Jersey. The court found that the places of the applicant's injuries, employment relationship, employment contract, and residence, all potential connections for the application of a state's workers compensation law, did not have any relationship to California. California did not have a significant enough relationship with applicant s injuries for the application of California's workers compensation laws to be reasonable. California had no obligation to apply the workers compensation law of any other state. As a matter of due process, California cannot have power to entertain the applicant's claim. www.bradfordbarthel.com 28

H. Constitutional Due Process Issues The court began its analysis indicating that certain threshold issues are reviewable by way of a Writ of Review before there is a final order in the case. Examples of such issues include whether the injuries arose out of and in the course of employment, the territorial jurisdiction of the board, the existence of an employment relationship, and the applicability of the statute of limitations. The court noted these are threshold issues that are potentially dispositive of the case. Review of such issues may resolve the case without the time, effort, and expense of fully litigating a case. Where the employer or carrier asserts in good faith and with reasonable cause that it has no statutory liability at all, and the board has decided that issue on review after bifurcated hearing, prompt judicial review, may avoid the necessity of further litigation. The court identified the issue as to which state s workers compensation laws applied. The court characterized the issue as a "conflicts issue," which arises when there are contacts in multiple states. www.bradfordbarthel.com 29

H. Constitutional Due Process Issues Under general principles, the court stated if an employer or insurer are subject to workers compensation law of a state that does not have a sufficient connection to the matter they are deprived of due process. The court noted that if the workers compensation law of another state exclusively should apply California does not have a sufficient contact with the matter, California must, under the full faith and credit clause, accede to the other state to provide a forum. Regarding jurisdiction, the court stated that the test is not whether the interest of the forum state is relatively greater, but only whether it is legitimate and substantial in itself. The court stated that the forum state can grant relief if it has some substantial interest in the matter. The court then summarized when a state court may award relief to a person under its workers compensation laws. The court stated that a state may do so if the injury occurred in the state; if the employment is principally located in the state; if the employer supervised the employee s actions from a place of business in the state; if the state is that of the most significant relationship to the contract of employment with respect to the issue of the workers compensation rules; if the parties have agreed in the contract of employment or otherwise that the forum should be determined under the Workers Compensation Act of the state; or if the state has some other reasonable relationship to the occurrence, the parties, and the employment. The court noted under the due process clause of the 14th amendment, a state of the United States may apply its local law to affect legal interest if its relationship to a person, thing or occurrence is sufficient to make such application reasonable. www.bradfordbarthel.com 30

H. Constitutional Due Process Issues The court then commented that if multiple states laws apply it is widely accepted that the "rights created by the compensation act of one state cannot ordinarily be enforced in another state or in a federal court." The court went on to state the test of jurisdiction is whether the forum state has a legitimate interest. If it does, that state will grant relief. If it does not, it will deny relief. Thus, if the forum state lacks a sufficient connection to the matter, it will, in effect, give full faith and credit to the workers compensation law of another state that has such sufficient connection to the matter. Regarding the facts in the case, the court stated the effects of participating in one of 34 games do not amount to a cumulative injury warranting the implication of California law. A state must have a legitimate interest in the injury. A single basketball game played by a professional player does not create a legitimate interest in injuries that cannot be traced factually to one game. The court summarized the facts and stated that the places of Johnson's injuries, employment relationship, and employment contract, residence, all possible connections for the application of the state's workers compensation laws, do not have any relationship to California. The court therefore found that as a matter of due process, California does not have the power to entertain Johnson's claim. www.bradfordbarthel.com 31

I. Medical/Legal Ransom vs. Jacksonville Jaguars, 2013 Cal. Wrk. Comp. P.D. Lexis 122 (2013 - panel decision) WCAB found that when California jurisdiction is being contested a defendant should not be held liable to pay lien claims and advance medicallegal expenses on a claim. Additionally, a Petition for Reconsideration is proper when a party is found liable for payment of certain expenses, including expenses not yet incurred. Regarding the medical-legals, the WCAB found the issue of jurisdiction should be determined prior to concluding defendant is liable for payment. Alternatively, the court noted that the Appeals Board does have limited jurisdiction to determine whether it is the proper forum to adjudicate an injury claim. The WCAB stated additionally that if a case cannot proceed without payment of medical legal expenses, the workers compensation judge may issue an award against another defendant subject to jurisdiction, which can later be the subject to contribution proceedings. www.bradfordbarthel.com 32

J. Bifurcation of Threshold Issues Ortega vs. Hinas Mercy Southwest Pharmacy, 2013 Cal. Wrk. Comp. P.D. Lexis 335 (2013 - panel decision) The WCAB held that while 8 California Code of Regulations Section 10560 generally requires parties to try all issues in a single proceeding, defendant in the case showed good cause to bifurcate the statute of limitations issue because disposition of that issue would clarify the posture of all three of applicant s cases and potentially allow defendant to avoid litigation expenses. The court cited WCAB rule 10560 which provides the parties are expected to submit for decision all matters properly at issue at a single trial. However, a workers compensation judge may order that the issues in a case be bifurcated and tried separately upon a showing of good cause. www.bradfordbarthel.com 33

K. Which Rating Schedule Applies Nittel vs. San Jose Sharks (2010), Cal. Wrk. Comp. P.D. Lexus 596 (2010 - panel decision) The WCAB found that the 2005 Permanent Disability Rating Schedule applied to rate permanent disability incurred by a professional hockey player and that the exception to application of the 2005 schedule did not apply under Labor Code Section 4660(d). The WCAB found that there was no evidence defendant had a duty to provide a Labor Code Section 4061 notice to applicant following payment of temporary disability benefits or salary continuation. The court went on to describe the requirements of Section 4660(d) which indicates that the 2005 schedule should be applied to injuries on or after January 1, 2005 effective date of the Rating Schedule, subject to the specified exceptions for "compensable claims arising before January 1, 2005 The court stated that the 1997 Rating Schedule may only be used to rate permanent disability arising from compensable injuries that occur prior to January 1, 2005 were one of the exceptions described in the third sentence of section 4660(d) has been established. If none of the exceptions exist than the 2005 Rating Schedule applies. In this particular case applicant did not carry his burden of proof to establish that he received salary continuation in lieu of temporary disability benefits for the injuries he alleged and therefore the 2005 Rating Schedule applied. www.bradfordbarthel.com 34

Christopher P. Stettler, Esq. Bradford & Barthel, LLP 404 Camino del Rio South, Suite 510 San Diego, California 92108 (619) 641-7942 cstettler@bradfordbarthel.com www.bradfordbarthel.com 35

Certificates emailed w/in 48 hrs Access PPT at www.bradfordbarthel.com Did you submit a question we did not have time to answer? A response will be emailed to you directly. A video recording of this Webinar will be posted on our website w/in 48 hrs. Register for our next Webinar on Dec. 16th on Harmony & Analytics Building the Predictive Business Process with Eric Hunter at www.bradfordbarthel.com. www.bradfordbarthel.com 36