The uneven playing field of workers' compensation

Bruce Matthews played offensive guard for 19 years in the NFL, first in Texas, and until 2002 with the Tennessee Titans. During his career, he played in 13 injury-free games in California. In 2008, he filed a workers' compensation claim here against the NFL/Titans for the pain and disability he experienced as a result of injuries incurred over the course of his whole career.

Adrienne Johnson played guard for three WNBA teams, in Cleveland, Orlando and Connecticut, between 1997 and 2003. In her final year, as a member of the Connecticut Sun, she played in a game in California against the Los Angeles Sparks. Later that year, she filed a Connecticut workers' compensation claim for an injury to her right knee in 2000, and won a $30,000 settlement.

In 2010, Johnson filed a workers' compensation claim against the Sun in California for cumulative injuries to her spine, shoulder and lower right extremities relating, in part, to the Sparks game.

Both of these players blamed their athletic careers for what's known in the workers' comp biz as cumulative trauma. It's a wear-and-tear thing, not an acute event, and its full effects don't manifest for a while. Long-term brain injuries resulting from multiple concussions are a prime example of cumulative injury. The military is becoming increasingly aware of this malady, and last week's NFL settlement to players suffering things like dementia confirms its insidious evolution in the sports world.

As the copy editor of "Sullivan on Comp," an objective, 12-volume analysis of California workers' compensation law, I know that this is tortuous tortious territory. Depending on your point of view, when it comes to workers' comp, we're either the Compassionate State or the Sucker State. Our heart's in the right place, and our head is ... not.

Many professional athletes who don't work in California file claims here because California is one of few states with workers' comp laws that acknowledge that cumulative trauma can result from what you do for a living. The statutes of limitations in most states are not sufficient to cover the lag time.

Our compassionate suckerism might come to a screeching halt this month if Gov. Brown signs AB 1309. It bars professional athletes who play for out-of-state teams in five major sports from filing workers' comp claims here. The Assembly has passed the measure and the Senate's on the brink; legislators seemed unified in wanting California to stop trying to fix other states' regulatory shortcomings.

California should not have to carry other states' baggage, but that doesn't mean that the non-Californian workers who file claims here routinely should be dissed as money-grubbing frauds who think the rules apply to everyone but them. Some of these workers' comp applicants have less than righteous claims, but slimy motives are more likely found not on the field of play, but in the corporate suite.

Although workers' comp is administered by the state's Labor & Workforce Development Agency, it is not funded by taxpayer dollars. Employers either self-insure or purchase private insurance policies to cover costs of workers who were injured on the job. The state determines the validity of their claims and whether they are entitled to medical care and monetary awards. Employees covered by workers' comp insurance surrender their right to sue.

Like any other insurance, the more claims there are--and the more that are successful--the higher the underwriting cost. So it's in the interest of the Dallas Cowboys, the NFL's richest franchise with a net worth of $2.3 billion, to prevent one of its players from filing an injury claim in California because if the applicant wins, the team pays. According to the Los Angeles Times, the average football player workers' comp settlement in California last year was $215,000.

For injured players, it's about money to repair physical damage, if possible, and to compensate loss. For teams and leagues, it's about money to have more money. About doing what's right for the bottom line, not for the worker who fattens it.

According to The Times, the six professional leagues affected by AB 1309--the NFL, NBA, WNBA, NHL, MLB and MLS--earn about $24 billion a year. According to Forbes, the tax-exempt NFL earned $9.5 billion in revenue last year, and wants league revenues to grow to $25 billion within the next 15 years. The brain-injury settlement last week represents less than 0.5% of the league's annual revenue, and it's paid out over 20 years.

Tell me, again, how such a successful creator of currency can't afford to subsidize a former employee's knee replacement surgery?

Plenty of people exploit workers' comp. They are criminals who deserve to be exiled to Texas, a state whose social safety net looks like the space between goalposts. But as generous, or dopey, as California appears to be, it's not as if the workers' comp system is run by rubber-stampers.

Despite robust defense by the Connecticut Sun, Adrienne Johnson's workers' comp claim was deemed by the Workers' Compensation Appeals Board to be legitimate for adjudication. The 9th U.S. District Court of Appeals ruled that the claim of Bruce Matthews was not. (If you're legal-wonky enough to want to know why, Lexis is your friend.)

The sports and corporate interests lobbying for AB 1309 want you to believe that California is a wuss, that the Division of Workers' Compensation is sagging under a flood of new out-of-state athlete claims, but as The Times reported, those cumulative trauma claims represent about half of 1% of all workers' comp claims in the last seven years.

California shouldn't be sweeping up even .005% of jock owies. But if injured players are left with no alternative, if the private interests that have a moral, if no longer a legal, obligation to take care of them don't, costs of their care in many cases will fall to taxpayers via Medicare, Social Security and other programs. Other states, team owners, league pooh-bahs and their underwriters are OK with that.

Are you?

"Sullivan on Comp" is an educational treatise; the opinions of this author do not necessarily reflect those of its writers.


More by Ellen Alperstein:
Recently on Native Intelligence
New at LA Observed

LA Observed on Twitter