By Jeff Birren
The Court of Appeal Speaks
Even after recent case law suggested otherwise, Workers Compensation Judges (WCJs) found California jurisdiction over non-Californian teams when no choice of forum clause existed (Anthony Mason v. Milwaukee Bucks, Cal. Wrk. Comp P.D. LEXIS 266 (2013)); (Jerome Williams v. New York Knickerbockers, Cal. Wrk. Comp. P.D. LEXIS 234 (2013)); (Toronto Raptors v. Gregory Foster, 2013 Cal. Wrk. Comp LEXIS 163 (2013)).
The California Court of Appeal finally had enough. Their published decisions are binding on the Workers’ Compensation Appeals Board (WCAB). Take the case of Federal Insurance Co. v. WCAB in which Adrienne Johnson played a single game in California for the Connecticut Sun of the WNBA. She filed a workers compensation claim in Connecticut and then filed a CT claim in California. The contract did not have a choice of forum clause, and the WCAB found liability. The Court of Appeal reversed the WCAB’s decision (221 Cal. App. 4th 1116 (2013). The court cited Matthews and concluded that California law did not apply. Johnson’s disability did not arise on the day that she played in California because she continued to play. The court found that the “temporary employment” of playing a single game in California “does not create a legitimate interest in injuries that cannot be traced factually to one game. The effect of the California game on injury is at best de minimis” (Id. at 1130).
Furthermore, the “situs of the employment relationship is often the most realistic basis for the invocation of a state’s workers’ compensation law.” Johnson cited WCAB decisions to the contrary, but as the Court of Appeal pointed out in Footnote 11, those cases, while citable, “are not binding on this court” (Id. at 1131).
The court said the issue was “which state’s worker’s compensation laws applies, not which state has personal jurisdiction” (Id. at 1122). Whether California law applied at all was a question of “the due process clause of the United States Constitution” (Id. at 1123).
Ultimately, the Court determined that “California does not have sufficient relationship with Johnson’s injuries to make the application of California’s workers compensation law reasonable. And California law has no obligation to apply the worker’s compensation law of any other state. Thus, as a matter of due process, California does not have the power to entertain Johnson’s claim” (Id. at 1130).
The WCAB Responds
The WCAB listened. Peter Forsberg played 70 out of 1,100 hockey games in California, yet the WCAB found that Johnson was “determinative” of the case: “the effect of the games in this state on applicant’s injury was at best de minimis.” As a result, “we conclude that California does not have a legitimate interest in adjudicating applicant’s cumulative injury claim” (Forsberg v. Nashville Predators, et al, WCAB No. ADJ8710981(2014)).
One WCJ did not listen, and tried to distinguish Adrienne Johnson in Maurice Johnson v. Philadelphia Eagles (ADJ7598160, Report and Recommendation” at 3 (2014)). Mr. Johnson played for the Eagles from 1991 through 1994 and played only two games in California. He testified that he felt “beat up from head to toe” and received treatment after every game (Id. at 3/4). Both Johnsons played a single game in California in their last year. For Mr. Johnson it was one out of 20; for Ms. Johnson it was one out of 34.
The WCAB found that Mr. Johnson’s post-game treatments were the equivalent of first aid, (Cal. Labor Code§§ 5401 and 5402), and that does not “give rise to a presumption of liability or compel California jurisdiction over the cumulative trauma injury” (Id. at 7/8).
The WCAB agreed that Adrienne Johnson did “not suggest the application of a rigid mathematical formula to determine jurisdiction” (Id. at 6). Rather, it will be determined “on a case-by-case basis” (Id.). There is now a “quantitative factor”, which is: “how long the injurious employment in California was in relation to the overall injurious exposure”, and a “Qualitative factor” which is: “the extent to which the microtrauma in California casually contributed to the cumulative injury, e.g., whether the microtrauma sustained in the state was relatively long, intense or severe in relation to the out-of-state work activities that also contributed to the cumulative trauma” (Id. at 8).
The WCAB, however, disagreed that Adrienne Johnson was distinguishable. The WCAB stated: “the applicant has the burden of proving that the connection between the claimed injury and California is sufficient to invoke jurisdiction of the WCAB” (Id. at 7). That is a major departure from the past, when virtually all burdens of proof were placed on the employer. The WCAB also stated that CIGA had not waived the defense of subject matter jurisdiction, as it may not be waived, or created by consent or estoppel (Id. at 8). Consistent with Adrienne Johnson, the WCAB held: “California does not have a legitimate interest in applicant’s injury and we order that he take nothing on his WCAB claim” (Id.).
The California Legislature Acts
Assemblyman Henry Perea introduced AB 1309 in February 2013. His research determined that California workers compensation courts had already ordered payments of $747,000,000 to 4,500 players, that there were currently 5,000 player-cases pending, and that CIGA had paid out $41,000,000 to retired players since 2002 (“Pro Athletes Gaming Work Comp Benefits”, SFGate, 6-25-13).
The amended bill passed overwhelmingly in the Assembly and State Senate, and was signed by Governor Brown. AB 1309 applies to professional baseball, basketball, football, hockey and soccer and only to their CT claims. Athletes from non-California teams can no longer file in California if the athlete performs less than 20% of his or her duty days in California. The statute exempts players who worked for two or more seasons for a California team and who worked for fewer than seven seasons for a non-California team. There is no Constitutional or common law right to workers compensation. It is a creation of the legislature, and they can amend the statue at their pleasure.
AB 1309 addressed three prior decisions. “It is the intent of the Legislature that the changes made by this act shall have no impact or alter in any the way the decision of the court in Bowen v, WCAB 73, 73 Cal. App. 4th 15 (1999),” (SEC. 3); or McKinley, (SEC. 4). The Legislature also stated that it was their intent that Wesley Carroll “is now limited to professional athletes, as defined in this act. “ (SEC. 4).
None of the above steps closed the doors completely. Employees of non-California teams can still file CT claims in California if their contract was made in California (Cal. Labor. Code § 3600.5(a)). The Miami Marlins drafted Michael Bowen at the end of his high school career; they sent Bowen a contract by mail. He signed it, and mailed it back to the Marlins. The contracts had not yet been signed by the Marlins or approved by the MLB Commissioner (Id.). He never played in California, and was injured in Florida (Bowen, 73 Cal. App. 4th at 18). The Marlins argued that the contract had not been made in California because they had not signed it when it was sent to Bowen. The Court set aside common law definitions of contract formation, and replaced it with California’s traditional expansive view of workers compensation law:
“We conclude that under sections 3600.5 and 5305 an employee who is a professional athlete residing in California, such as Bowen, who signs a player’s contract in California furnished to the athlete here by an out-of-state team, is entitled to benefits under the act for injuries received while playing out of state under the contract. This is so even though the team has not yet signed the contract, and, as a condition of the contract, a third party such as the commissioner of the sport must approve the contract” (Id. at 27).
Finally, AB 1309 applies only to occupational disease and CT. An athlete injured in California can still file a specific injury claim in California. The Matthews court stated:
California’s workers’ compensation law covers an employee who suffers a discrete injury in California, at least where the costs associated with the employee’s injury may impact California’s medical system and other resources. See id. at 576—78, 75 P.2d 1058. If Matthews had suffered an injury requiring medical treatment while playing a game in California, Pacific Employers would appear to foreclose enforcement of the Tennessee choice of law clause in his employment contract (and thus the arbitration award) (Matthews, 688 F.3d at 1113).
AB 1309 did not change that.
Michael Stratton and the Statute of Limitations
The WCJ’s Ruling
Michael Stratton played for the Bills and Chargers from 1962 through 1973. He filed a CT claim in June, 2012 (Stratton v. Buffalo Bills et al, WCAB No. ADJ8485371, at 3 (2014)). Stratton testified that he “always had hurts,” that “he did get hurt in every game and conceded that he must have know back then, that this was happening.” During his career he had surgery on his knee and left heel. Stratton knew that he was injured as a result of playing football, and that “his symptoms in his neck first manifested themselves back during the late 1960’s and early 1970’s” (Id. at 4/5).
The WCJ found that the statute of limitations was tolled as to the Bills as the club had not given Stratton the requisite Reynolds notice that he was entitled to file a worker’s compensation claim, and therefore the CT claim was not time-barred (Id. at 6). Stratton retired prior to the 1974 Reynolds decision, yet the WCJ decided that Reynolds “should be applied retroactively here, as doing so would serve to extend injured workers benefits, rather than to restrict them…” (Id.). There is no authority for the ipse dixit proposition that Reynolds should be applied retroactively.
The WCJ also found that that since Stratton “wanted to stay in the game and on the field, he would not report anything when he hurt himself during a game” (Id. at 5). Stratton consistently failed his disclose his injuries, yet the WCJ found that the Bills had an obligation to inform Stratton that he had rights under case law that did not yet exist. Why would the Bills inform Stratton about rights connected to injuries that he actively concealed?
Furthermore, Stratton induced the Bills not to act, and thereby had the statute of limitations tolled in his favor, violating the maxim: “No one can take advantage of his own wrong” (Cal. Civil Code §3517). The standard player contract requires players to promptly report all injuries; a provision breached by Stratton. Only in a California worker’s compensation court would a party be penalized for not acting on information that has been concealed by the other party.
The WCAB Reverses
The WCAB noted that a CT claim must be brought within one year of when “the employee first, (1) suffered disability and (2) knew or reasonably should have know that the disability was industrially caused” (Id. at 8). The WCAB found Stratton was “of the opinion as of his first day off work that his injury was industrially caused and he himself suggested the possibility of industrial…causes of his condition to the physicians who first treated him” (Punctuation in the original.)(Id. at 6). The WCAB stated: “the question in this case is what the nature of that duty was at the time applicant ended his employment with Buffalo in 1973 and ended his employment with San Diego in 1974.” (Id. at 12_.
When Stratton retired, there was a “regulatory duty to give various notices” but only when “the employer had notice of knowledge of an injury which ‘requires hospitalization, or results in disability of more than seven days’” (Id. at 12). The WCAB found that the Bills had a duty to provide notice for his specific ruptured left heel cord in 1970. However, “we have found no case, statute, or regulation that provides that the breach of a duty to give notice concerning earlier specific injuries tolls the statute of limitations for a cumulative injury with a later date of injury” (Id.). Since “there is no evidence that either employer breached an existing statutory or regulatory duty to provide applicant with notice of workers’ compensation rights regarding the injury… it is ordered that he take nothing on his claim in this case” (Id. at 12/13).
Conclusion
California worker’s compensation will continue to ebb and flow. For example, the WCAB ruled several years ago that a California agent was not enough to confer California jurisdiction (Ioane v. Oakland Raiders, et al, WCAB No. ADJ171639 (2010)). Recently, the WCAB found that a California agent was sufficient to create jurisdiction for a contract was signed in Florida (Soward v. Jacksonville Jaguars, WCAB No. ADJ7607650, (2014)), which is consistent with Bowen.
The passage of AB 1309, Matthews, and McKinley all suggest that California teams can expect to see an increase in cases. As increasing numbers of non-Californian defendants are dismissed, liability may roll back to a prior California employer (and/or CIGA), who may have only had the athlete for a game, or perhaps even offseason conditioning.
Stratton’s logic should apply to any case brought before Reynolds. Applicants historically list numerous injuries that they knew were caused by playing the sport. If it is no longer enough to say: “I knew I was injured but not that I could file a CT claim,” hundreds of pre Reynolds claims could be doomed.
WCJs will continue to stand the law on its head to reach their preferred result, as happened in Maurice Johnson and Michael Stratton. Fortunately, the current WCAB reads the law—statutes, cases and regulatory duties—and tries to apply the law rather than ignore it. The WCAB will likely spend years reversing such WCJs.
As a result of the applicant playing a single game in California, it appears that the days of imposing liability on non-California clubs are over.
The last two years have seen dramatic changes brought by arbitrators and the Federal Courts, the WCAB, the Court of Appeal, and the California Legislature. California closed the courthouse to thousands of retired athletes from around the country, and every California business should be thankful because they subsidized claims through the CIGA surcharge.
Mr. Birren is a frequent contributor to these Sports Litigation Alert.
