By Alla Barbalat, Esq.
California Workers’ Compensation benefits can provide relief for retired professional athletes who often have no other option for covering their medical expenses. California recognizes cumulative trauma claims allowing employees to recover for work-related injuries that occur as a result of repetitive stress on the body as opposed to a single or specific incident.
The ability for athletes to file for benefits for wear and tear endured during professional sports play has been especially helpful to retired sports players. As a result, for many years, professional athletes relied on the California Workers’ Compensation system to cover ever-increasing medical bills.
However, changes in California Workers’ Compensation law mean that many retired professional athletes will no longer be eligible for California workers’ compensation benefits. On the heels of new legislation that will block many pro-athlete applicants from applying for California workers’ compensation benefits comes Fed. Ins. Co. vs. WCAB, (Johnson) 78 CCC 1257.
On October 8, 2013, via AB 1309, and applied retroactively to September 15, 2013, California restricted access to the California workers’ compensation system to pro athletes who have less than two years of play for a California team or 20% of their duty days in California.
The legislation was not meant to affect thousands of currently pending cases, which were reasonably filed in good faith under the California Labor Code Section 3600.5 as codified prior to the October 8, 2013 amendment. These older cases were to be treated the same any other workers’ compensation claim. However, as a result of the Johnson decision, the courts continue to cut away at the jurisdictional bases of older cases which were filed prior to the effective date of AB 1309.
In Johnson, the Court denied applicant basketball player Adrienne Johnson’s application for workers’ compensation benefits because of a lack of sufficient minimum California contacts. The Court explicitly focused on the lack of injurious exposure in California. Johnson, a WNBA player, played a total of 34 games in the WNBA — only one of which was played in the State of California. Further, during that game, Ms. Johnson played for less than five minutes.
Specifically, the court noted, “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.” Ms. Johnson never testified at her trial, nor did she present any medical evidence to establish a connection between her injuries and her California play. But, Ms. Johnson had the opportunity to furnish the court with evidence that during her five minutes of California play, she experienced injuries that were identifiable in her cumulative trauma claim.
The Court in Johnson examined many other factors outside of the amount of time spent by Ms. Johnson in California such as the applicant’s residency, where the applicant’s contract was formed, whether any acute injuries occurred during California play or practice, and whether medical treatment was sought in California. Ms. Johnson’s case relied solely on her California practice and play because none of the other factors connected her sports career to California.
Even though not settled law, defendant employers and insurance carriers are attempting to use Johnson as a shield against sports claims at trial and as a sword by trying jurisdiction prior to a full case on the merits.. Their interpretation of Johnson as a wall closing off access to California workers’ compensation for cumulative trauma claims overreaches for three principle reasons.
First, in Injured Workers’ Insurance Fund of the State of Maryland v. WCAB (2001) (Crosby), the court ruled that applicant Cleveland Crosby, who had only played one game for the Baltimore Colts could proceed with a cumulative trauma claim in California. Therefore, California jurisdiction arose from just one game. Prior to Johnson, this case set the relevant standard for jurisdiction in a pre AB 1309 sports claim for workers’ compensation benefits.
The deviance in the Johnson decision from the Crosby case creates an uncertain standard. If one game out of thirty-four games is not enough, then how many California games are needed for California subject matter jurisdiction?
If the answer is that twenty percent of duty days must occur in California, then the legislature’s intent in crafting AB 1309 as retroactive only to September 15, 2013 becomes meaningless. Ultimately, Johnson renders an uncertain standard that lies in square opposition to prior case authority and the legislature’s intended effective date for AB 1309.
Second, a determination of jurisdiction cannot be resolved absent an inquiry into the medical causation of an applicant’s cumulative sports trauma. Under Johnson, an applicant must show that California practice or play contributed to a player’s cumulative trauma claim. Medical evidence is needed to make such a determination.
Problematically, the courts that permit consider the issue of jurisdiction in a vacuum will prevent applicants from proving medical causation for their cumulative trauma claims. Proof of medical causation is generally the product of special medical legal evaluations conducted by qualified medical examiners licensed by the state. These types of reports are rarely generated outside of the workers’ compensation discovery process.
As a result, applicants subjected to an initial inquiry solely on the issue of jurisdiction, will not be afforded the opportunity to establish that injurious exposure occurred in the state of California. Therefore, their due process rights to prove their claims will be curtailed.
Third, the analysis in Johnson diverges from the fundamental principle of a liberal construction of the workers’ compensation law in favor of providing benefits to injured workers. Workers’ Compensation is meant to be interpreted to extend benefits to employees suffering industrial injuries. This public policy underlies the goal of the workers’ compensation to encourage employers to provide employees with safe work environments.
In Beaida v WCAB, 263 Cal. App 2d 204 (1968), this public policy objective became the law, later codified in Labor Code Section 3202. Then, in Bowen v WCAB,64 Cal. Comp. Cases 175 (1999), the court specifically noted the applicability of this principle to sports injury cases.
In Johnson, the court deviates from this policy despite previous case law establishing jurisdiction on the basis of play by an athlete in only one California game. Denial of a claim despite proof of an industrial injury and proof of California play time pave the way for an applicant unfriendly workers’ compensation system.
However, many of the legal concepts underpinning the Johnson decision rely on federal law and other non-California sources of law like the Restatements. The application of the Restatement and other federal law ahead of a well-established California law has resulted in a decision that values the interest of employers over those of employees.
Another interesting development springing from the Johnson decision is the potential impact on non-athlete claims. Unlike AB 1309, Johnson applies to the cumulative trauma claims of employees who worked temporarily within the state of California even if they were not athletes. Therefore, the implications of the Johnson decision may flow well outside of the area of sports litigation.
The strain of burgeoning medical costs on retired professional athletes does not appear to have an end in sight. Until sports leagues take measures to ensure proper medical care for ex-athletes, the workers’ compensation system in California remains one of the few alternatives for athletes seeking to treat debilitating chronic sports injuries.
While California law generally stands for the absorption of long-term treatment costs of devastating illnesses by employers, both the legislature and the workers’ compensation appeals board are carving out an exception excluding ex-professional athletes. Consequently, the resulting burden of the extensive medical expenses borne by retired professional athletes may shift from insured sports teams to taxpayers.
Alla Barbalat is an Associate Attorney at Farber & Company where she specializes in issues for Athletes. Farber & Company is a full service California boutique law firm with offices in Oakland and Sherman Oaks. The firm is a proud supporter of the Gridiron Greats and the Kevin Turner Foundation.
