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, annuling 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.)

  • 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.)

  • 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.

  • 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 California-based team for part of their professional or semi-professional 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.