By Jeffrey Birren
California’s workers’ compensation laws are among the most generous in the nation. The California Legislature created a system to protect employees and their counsel. Thus, the workers’ compensation statute at Labor Code § 3200 (“Cal. Lab.”) states that:
“This division and Division 5 (commencing at Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.”
In theory, each party must “meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law” (Cal. Lab. § 3202.5). As a practical matter, many workers’ compensation judges construed both the law and the facts in the retired athlete’s favor in order to maximize benefits whenever possible. Celebrity-status has its benefits.
The Legislature recognized that the United States Constitution did theoretically limit the power of the state’s workers’ compensation statute for those engaged in interstate commerce, “except in so far as these divisions are permitted to apply under the Constitution or laws of the United States” (Cal. Lab. § 3203). In reality, that section rarely prevented a non-California professional athlete from filing and collecting in California against non-California teams. Historically, all jurisdiction required was a single game in California over a career.
In addition, there has been virtually no statute of limitations in “cumulative trauma” claims as the statute has been construed to not begin until a doctor informs the retired athlete that he or she has “cumulative trauma” as opposed to what the athlete already knows—that he or she suffered specific injuries. Consequently, for highly compensated, out-of-state professional athletes, California has traditionally been the most generous state in the nation by a large margin. For decades, these athletes filed their claims in California and were mailed checks for tens of millions of dollars (See, “Golden State, Golden Payouts” Sports Litigation Alert, 12-12-14; “A New Approach” Sports Litigation Alert, 12-26-14; “California Court of Appeal Keeps Them Guessing When It Comes to Workers Compensation” Sports Litigation Alert, 10-13-15). Only recently has the gravy train been mildly disrupted (See, “Golden State, Golden Payouts, Sports Litigation Alert, 10-30-15).
The Legislature also gave “Applicants” another powerful tool: the election. In cases involving multiple employers, an Applicant may elect to proceed against a single employer (Cal. Lab. § 5500.5). Thereafter, the employer stuck with the entire bill can go after the other employers, either for partial or total contribution, while the Applicant sits at home counting the money. All the elected-against employer can do is prosecute subsequent proceedings against one or more of the other former employers. This article now focuses on such a case.
Marcus Knight played wide receiver and punt returner at Michigan from 1996 through 1999. During his career, he scored ten touchdowns. He signed as an undrafted rookie free agent with the Oakland Raiders in 2000. He was cut, and then re-signed to the “Practice Squad” during summer camp, meaning that he could practice but not participate in games. He signed again in 2001 and spent most of the year being placed on the “Inactive” list for games. After the 2001 season he was made available for NFL Europe, but no team in that league took him. He then made the Raiders’ active roster for 2002. He was released during summer camp in 2003.
He had four unsuccessful tryouts in 2003, and signed with Tampa Bay in January 2004. He was released on September 5 and re-signed on September 29. He was with Tampa Bay for 14 days and was “Inactive” for both games. He was cut on October 12, re-signed on October 20, placed on the “Inactive” List before being released on October 27.
He then turned to the Arena League. He played for the Philadelphia Soul in 2005 and part of the 2006 before being released. At the time, Jon Bon Jovi was the owner. A group headed by Ron Jaworski now owns it. Arena League players must be versatile, and Knight, played receiver, returned kicks and played defense, and that continued for his entire AFL playing tenure.
He signed with the Columbus Destroyers for the remainder of the 2006 season and stayed with the team through the 2007 season. The Destroyers folded after the 2008 Arena League season, but workers’ compensation insurance survives the demise of the employing-organization.
Knight then took up coaching, joining Valparaiso as wide receivers coach for 2007. As a football coach, he would be required to engage in several strenuous physical activities, including running around the field, holding bags while receivers hit them, sitting for long hours watching film, standing for long periods of time at practice, traveling during recruiting, among others. In 2012 he moved on to Northern Michigan where he remains the Pass Game Coordinator/Receivers Coach.
Knight filed a workers’ compensation claim against the Raiders, Soul and Destroyers, his professional football club employers. He filed an Amended Application on July 24, 2014 that stated that the consecutive trauma (“CT”) period ran from 6-15-01 until 7-15-07. His application ignored the fact that the job duties of a receivers’ coach an also be quite strenuous. One wonders if he told Valparaiso that he believed he suffered disabilities to his head, neck, back, shoulder, hands, wrist, knees, knees, feet, internal, and a host of other parts that are not legible on his Application. Was any of his physical activities as a coach observable? If the answer is no, it shows yet again that California workers compensation’s disability rating system uses words and concepts very differently from the rest of the known world.
The Soul and Destroyers were joined by Court Order, “Order Joining Party Defendant, Marcus Knight v. Oakland Raiders, et al, ADJ 7205561, August 4, 2011), but the Soul never appeared. Rather than taking a default against the Soul, Knight instead “elected against” the Raiders (Arbitrator’s Findings and Order, May 11, 2016 in Marcus Knight v Oakland Raiders and Philadelphia Soul, ADJ 7205561 at 1, (“Arbitrator’s F&A”)). That meant the Raiders were stuck with the entire bill, pending a future proceeding against the Soul and Destroyers.
Knight had been released by the Raiders in 2000, passed his physical and did not file a claim. He passed a preseason physical and post season physical in 2001 and 2002. He passed a preseason physical in 2003, passed his exit physical and did not file a claim. He passed Tampa’s physical before signing in 2004, when he was released for the first time, when he was released for the second time, and did not file a claim. He passed the Soul’s initial physical and end of year physical. He passed their physical when he was released, and when he signed with the Destroyers. He passed the physical at the end of the year and did not file a claim, and the process was repeated in 2007. He never made a claim of any kind, including an injury grievance until he filed a workers’ compensation claim years later. So despite the fact that he acknowledged that he was healthy when he left the Raiders, California law forced the Raiders to pay Knight for all claimed injuries that occurred for five full years after he left the Raiders and California, plus the expenses for medical evaluations and travel that are part of the workers’ compensation costs placed on California employers.
The Raiders agreed to pay Knight $100,000 (Id.), in 2013. The Workers Compensation Court (“WCAB”) approved the settlement on February 25, 2013, and held open the Raiders’ “right” to seek reimbursement from the Soul, (Knight v Raiders et al, Order Approving Compromise and Release, ADJ7205561, (February 25, 2013)). Three years later, the Raiders finally were able to arbitrate the claim for contribution from the Soul, meaning the $85,000 paid to Knight and $15,000 paid to his counsel, but not any of the costs previously paid by the club. The WCAB sent the case out for mandatory arbitration to determine that liability, (Id.).
The issue is not who is liable for a workers’ compensation claim but who is liable for the California workers’ compensation claim. That is a very different thing, as many states enforce a statute of limitations, and many only recognize specific injury claims and not CT claims. In a rational world, the Destroyers would be liable as he last played there, or Northern Michigan as the last employer, However, as to Northern Michigan, California typically ignores any CT that might arise from coaching, unless of course, a coach who never played professional sports files the claim. In theory should leave the Destroyers, but no.
Liability for CT claims is supposed to be imposed only on employers who are in the last year of CT exposure (Cal. Lab. § 5500.5). However, California law in certain instances recognizes “reciprocity” statutes from other states. If the other state (i.e. Ohio) has a specific statute that recognizes California law, then Cal. Lab. § 3600.5 divests the California court over jurisdiction, not over the claim as should be the case, but over the Ohio defendant. Ohio’s statute is Ohio Revised Statute 4123.54. Thus the Destroyers escaped California jurisdiction, even while Knight’s claims for injuries suffered while playing for the Destroyers continued in California against prior employers (Arbitration F&A at 2).
This is due to yet another one of California’s eccentricities. In the event that the last employer does not have insurance, or where there is no jurisdiction over that employer, then liability “rolls back” to the next potential employer (Cal. Lab. § 5500.5, Portland Trailblazers v. WCAB (Whatley) 72 CCC 212, Tampa Bay Buccaneers v. WCAB (Curry) 73 CCC 994). So, rather than tell Mr. Knight to take his claim to Ohio, California turns to the next prior employer.
Nicole Bryson, Esq. of Shaw, Jacobsmeyer, Crain and Claffey represented the Raiders in the arbitration against the Soul. California law put her into a position where her only options were to arbitrate against the Soul or walk away, as so many have done. She litigated. The case between the Raiders and the Soul began on March 15, 2016; three years after Knight elected against the Raiders and made it pay his claim. None of the other employers bothered to appear. That worked well for the Destroyers, as there was no jurisdiction over that club due to the reciprocity statute, and Tampa Bay, as they were not in the last year of CT exposure, and there was also a question of jurisdiction, since Knight never played in California for Tampa, (Arbitrator’s F&A at 2).
On the other hand, the Arbitrator found that California did have jurisdiction over the Soul. He seemingly ignored that Knight played for the Soul in San Jose, California on March 11, 2005. Instead, the Arbitrator noted that Knight had been a California resident during a portion of the CT period, owned land in California during a portion of the CT period, had medical treatment in California during the CT period and had played for the Raiders during a portion of the CT period. “Therefore, it is clear that California can assert jurisdiction over this defendant (the Soul)” (Id. at 2). Yet all of that is also true over Tampa, and the only difference is the game played in California.
The Arbitrator noted that the Raiders’ Arbitration Brief stated that the Soul had workers’ compensation coverage through the Pennsylvania Insurance Fund (Id. at 2/3). However, since neither the Fund nor the Soul bothered to appear, in despite of the fact that the Soul had been in the case since 2011, the Arbitrator stated that without proof of insurance, he could not find against the Fund. Thus, “(l)iablity will fall solely on the Philadelphia Soul,” (Id. at 4).
Should the Soul seek to set aside the arbitration decision, they will have a lot of ‘splaining to do as to why they never showed. The next step for the Raiders will be to get an enforceable judgment.
California workers’ compensation laws bedevil California companies so it is hardly a surprise that periodic visitors to the state can become ensnared in its tentacles. Fortunately for the Soul, $100,000 is small by California CT standards, but it should put all out of state teams on notice as to may await in the Golden State, with its golden payouts for workers’ compensation awards.
