Recently in Workers' Compensation Category

Under what circumstances may an injured professional athlete employed by team in different state receive California workers' compensation benefits?

December 13, 2013

Recently, public attention has been drawn to out-of-state professional athletes, who have performed at times in California, seeking the benefits of workers' compensation under California law. Several of these cases have now emerged from the appellate courts. One such case is that of Federal Insurance Company v. WCAB and Johnson (filed 12/3/13) B249201. There, the Court of Appeal, Second Appellate District, Division Five, ruled the state did not have a sufficient interest in the matter to apply its workers' compensation law and retain jurisdiction over the matter.

Adrienne Johnson journeyed to several Women's National Basketball Association teams from 1997 through 2005: teams in the states of Ohio, Florida, Connecticut and Washington. She lived in those states during those times except she resided in New Jersey while playing for the Connecticut Sun franchise. She injured her right knee and Achilles tendon in 1999 while playing for the Orlando Miracle, had surgery in 2000 in Florida, and missed the entire 2001 season. She reinjured her knee in 2003. Through her Ohio-based agent, she signed a 2-year contract in 2003 with Connecticut, and played in 34 games that year. For the next two years she practiced with teams but played in no games. During 2003, she played her only game in California. Later that same year, she received a $30,000 settlement for a workers' compensation claim filed in Connecticut concerning her right knee.

After leaving professional basketball and while working and residing in the state of Kentucky in 2010, Johnson complained of various discomforts in her knee, hip and shoulder. She filed for Workers' Comp benefits against the Sun team in California. She was supported by an agreed medical examiner's opinion that her injuries were chronic, that she suffered from irritable bowel syndrome related to her orthopedic problems, and these injuries at least in part stemmed from her professional basketball playing days with the Sun. The California Workers' Compensation Judge awarded disability indemnity; this ruling was partially rescinded by the WCAB which returned the award to the WCJ for apportionment. Employer Sun and its insurer, Federal Insurance Company petitioned and received a writ of review from the Court of Appeal, contending the California WCAB had no jurisdiction. The Court of Appeal agreed.

The appellate court saw the dispositive issues as whether one or more state compensation laws apply and whether this case is one where California may provide a forum for the claim. The court saw the WCJ's statement that"[p]laying in even one professional basketball game in California is sufficient to establish jurisdiction" as mischaracterizing the controversy. This is more a matter of subject matter jurisdiction than it is one of personal jurisdiction. And a big part of determining whether California law governs is a question of due process. If an employer or insurer is to be subject to this state's workers' comp law, due process requires that the state have sufficient contact with the matter. The U.S. Supreme Court cases of Bradford Electric Light Co. v. Clapper (1932) 286 U.S. 145, and Alaska Packers Assn. v. Industrial Acc. Comm. (1935) 294 U.S. 532 have long supported the principle that the place of the injury as a single factor is insufficient to permit coverage by a state when the employee's presence in the state is temporary.

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Discharge of employee in violation of statutory prohibition of firing for filing work-comp claim cannot form basis for common law civil action based on public policy.

Thumbnail image for work-comp claim.jpgDutra v. Mercy Medical Center Mt. Shasta (filed September 26, 2012) 2012 DJDAR 13447, plaintiff Dutra claimed defendant wrongfully terminated her employment in violation of public policy codified in California Labor Code section 132a, which generally prohibits discharge of an employee for filing a workers'compensation claim. After jury selection, the trial court granted defendant's motion to dismiss the claim because the Workers' Compensation Appeal Board (WCAB) had exclusive jurisdiction to adjudicate the claim; plaintiff declined the court's offer allowing amendment of her complaint. The Court of Appeal, Third Appellate District, affirmed.

The appellate court rejected plaintiff's legal argument that the California Supreme Court, in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, provided that a plaintiff could pursue common law remedies as an alternative to the Labor Code's vesting of jurisdiction in the WCAB. As the court put it, "City of Moorpark does not go as far as plaintiff suggests. " While the high court did say a plaintiff is not precluded from pursuing remedies under FEHA statutory provisions and common law wrongful termination, the other half of the analysis in that case was to decide whether a violation of FEHA could serve as a basis for a claim of wrongful termination in violation of public policy. On this point, the Supreme Court wrote that when a statute stating a public policy also includes certain substantive limitations in scope and remedy, these limitations also circumscribe the common law cause of action.

Here, Section 132a has the limitation of establishing a specific procedure and forum for addressing a violation with limited remedies. A claim in common law tort bootstrapping a violation of this statute would give a broader remedy than the statute allows. To the extent that this plaintiff claims the wrong committed against her fell outside of the "compensation bargain," she could have alleged different causes of actions which she chose not to.

I see three important lessons that are suggested by this opinion. First, if you seek a common law remedy, do not try to infuse it with a statutory theory of recovery that is limited in scope, and may end up getting the cause of action dismissed. Second, never give short shrift to a trial court's invitation to amend your complaint. And third, more generally, if you wish to quote from a case opinion, make sure you have the proper context.

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Bar of Workers' Compensation claim based on personnel action includes migraines as manifestation of claimed psychiatric injury

Workers' Compensation.JPGLabor Code section 3208.3, subdivision (h), states that an employer is not required to compensate an employee for a psychiatric injury substantially caused by a lawful, nondiscriminatory, good faith personnel action. What about such a claim of injury in the form of migraine headaches?

In County of San Bernardino v. Workers' Comp. Appeals Bd. (filed March 2, 2012) 2012 DJDAR 2833, County employee John McCoy claimed he suffered migraine headaches as a result of on-the-job stress caused by friction with his supervisor. The WCJ found the injury not compensable, agreeing with County's argument that his psychiatric injuries were caused by lawful, nondiscriminatory, good faith personnel action. The WCAB granted reconsideration to McCoy and concluded section 3208 (h) did not bar compensation for migraines. Then in its denying the further reconsideration request of County, the board noted migraine headaches are not classified by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders as a "psychiatric injury."

County petitioned for Writ of Review. The petition was granted by the Court of Appeal, Fourth Appellate District, Division Two, which annulled the board's order.

The appellate court felt guided by legislative intent rather than the non-inclusion of migraine headaches in the cited psychiatric manual category. It viewed the intent of 3208.3 (h) to exclude from compensability claimed injuries directly and solely resulting from psychological suffering due to good-faith actions because the subjectivity of such injury claims bears a great potential for fraud and abuse. Telling in this case was the fact that McCoy added his claim of migraine headaches on the first day of his trial.