NFL workers’ comp issue expand to other sports, out-of-state workers in Florida

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Delicate compromise too delicate: ‘surprise reversal’

Last time we posted ” ‘Delicate’ compromise may avoid killing Illinois system,” as part of our ongoing coverage of workers’ comp reform movements around the country.

Apparently, the “delicate compromise” has blown up. A May 30 piece at the St. Louis Post-Dispatch’s Web site says:

In a surprise reversal of what was to have been historic workers’ compensation reform in Illinois this year, state House members killed the bill late Sunday after a bitter floor fight that pitted medical and business interests against workers.

The workers’ compensation system is a state-run program that settles cases between injured workers and employers, keeping those cases out of the courts. The system has been plagued by skyrocketing costs for employers and alleged abuses by employees.

The Democratic-sponsored bill that failed Sunday would have lowered those costs by reducing the program’s fees to doctors, and would have tightened rules for employees trying to collect. Proponents claimed it would have saved employers some $500 million a year. Critics said it unfairly attacked doctors and didn’t go far enough to stop fraud.

‘Nuclear option’ still on table

The so-called “nuclear option” remains viable. That’s the threat of simply letting the workers’ comp system die, forcing injured workers to take their cases to the court system. According to the Journal Star’s online site:

Backers of a failed plan to overhaul the Illinois workers’ compensation system prepared Tuesday to try again, while the possibility of simply eliminating the system loomed in the background.

Rep. John Bradley, a key negotiator on the proposal, filed motions that would allow another vote. The overhaul failed Sunday in the House as Republicans opposed it as a group.

Bradley, D-Marion, originally said lawmakers would only get one chance to vote on the overhaul. He said if it failed, the next step would be abolishing workers’ compensation altogether.

Bradley said that “nuclear option” is still a possibility. The Illinois Senate could vote on it Tuesday, the final day of the legislative session.

The point is to avoid costly court battles and get workers back on job

Agency under federal investigation

Besides the reform attempt, the state workers’ comp agency is also dealing with a federal investigation of its practices, an investigation launched in the wake of a series of revealing stories published in the News-Democrat: “The newspaper reported that in just three years beginning Jan. 1, 2008, almost $10 million was paid for injuries to employees at Menard Correctional Center. Most of the tax-free settlements, including one paid to the warden for $75,678, were for repetitive trauma, or injury to the wrist or elbow that guards claimed was caused by manually locking and unlocking cells.”

NFL issue spreads to other sports, out-of-state workers

We’ve also covered workers’ comp issues in the NFL, some that threaten to spill over into non-athletic workplace situations. News from Florida updates with recent events. From the May 31 Orlando Sentinel, this headline: “Prodded by sports teams, lawmakers block out-of-state workers comp claims“:

Florida workers who travel as part of their jobs may soon have a harder time claiming benefits from on-the-job accidents — thanks, in large part, to the state’s professional sports teams.

Sometime in the next few weeks, Florida Gov. Rick Scott is expected to sign into law a measure designed to ensure that workers who are injured while temporarily working in another state can’t pursue workers-compensation claims against their employer in those states.

The legislation, passed unanimously by the Florida Legislature last month, was sought by Florida’s professional sports franchises, lead by the National Basketball Association’s Orlando Magic, the National Hockey League’s Tampa Bay Lightning and the National Football League’s Jacksonville Jaguars.

Lobbyists for the teams say the law is needed to close a loophole that allows their players to seek claims in other states. Their most oft-cited statistic: From the inception of the Jaguars in 1995 through 2009, the franchise has played only five of its 224 games in California. Yet 95 percent of the team’s workers-compensation claims have been in California, where workers-comp laws are more favorable for employees. But the law could face a swift court challenge from unions representing professional athletes, which say lawmakers are attempting to take away rights from their members in Florida.

Beneath mainstream radar, issue closely watched in WC circles

This promises to be an ongoing issue in the workers’ comp arena. Sports franchises may hope to restrict language such that it applies only to professional athletes. So far, they haven’t been able to do that. Taken together, all these subjects indicate the complexity than can follow a workplace injury, whether you’re an elite “star” or simply a worker trying to make a living.

We can help you find an attorney

Frequently enough, a worker’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

An ongoing issue in the NFL concerns injured players who file for workers’ comp benefits in states where they played games rather than in the state where the team is based. We first covered the issue last year here and here, describing what was originally known as “the Bengals’ situation,” which expanded to the point that hundreds of retired, injured players were filing in California because of its unique circumstance.

The California system vs. newer contracts

We quoted from an April piece from The New York Times: “California provides the only workers’ compensation system that allows retired pro athletes to file claims for long-term injuries sustained on playing fields years or even decades before. Quietly, hundreds of football players have received awards or settlements worth at least $100,000 and 700 more players are pursuing claims, many of them by satisfying California’s unique requirement that they played at least one game within state borders.”

By last spring, teams that were watching or fighting similar actions included at least the Bengals, Dolphins, Saints, Titans and Rams. The Titans and Bengals had already begun inserting specific language into player contracts restricting workers’ comp actions to their home states.

The battle expands

Now, the Miami Dolphins are fighting on another front. According to a Feb. 14 article in the Pittsburgh Post-Gazette the workers’ comp issue has become part of “the war” between owners and players:

Kendall M. Newson caught just two passes in his National Football League career, but now the former Miami Dolphin is the star of a legal battle, fought Downtown last week, in the war between the teams and players.

Lawyers for the Dolphins asked U.S. Magistrate Judge Lisa Pupo Lenihan to put the kibosh on Mr. Newson’s workers’ compensation case related to a 2005 knee injury, sustained in a preseason game at Heinz Field, that ended his career. They said the claim should be decided by an arbitrator, not by Workers’ Compensation Judge Pamela L. Briston.

Lawyers for Mr. Newson and the NFL Players Association countered that there was no legal precedent for a federal judge stopping a state workers’ compensation case and added that such a measure would be especially damaging due to the current contract dispute between the league and players.

In other words, the scenario is escalating. For Newson, prevailing under Pennsylvania law would mean the difference of nearly $4,000 a year plus medical benefits that his attorneys say are better than those available in Florida. Dolphins’ management wants the case to be settled via arbitration in Florida: one player’s benefits may not seem like much, but increased benefits for hundreds of players, over time, add up significantly.

Florida’s new workers’ comp bill

An unrelated issue in Florida is a new bill that is designed to:

• modernize and set standards for certain underwriting ratings
• create a new position within the Office of Insurance Regulation, called the Worker’s Compensation Administrator, which would
• reduce overlap among current responsibilities spread over several offices.

According to a Feb. 10 piece at InsuranceJournal.com, “In 2003, lawmakers created a new subplan D that was designed to provide coverage to small employees with 15 or fewer employees and non-profit organizations. Primarily, the subplan was provided as a safety net for small contractors after lawmakers ended workers’ compensation exemptions in the construction industry. Unlike the other three subplans that had actuarially sound rates, subplan D rates were capped at a small percentage above rates charged in the voluntary market and were assessable policies. The subplan quickly ran up a deficit and in 2004 lawmakers appropriated money from the state’s Workers’ Compensation Administrative Trust Fund to retire the shortage. They also eliminated the subplans in favor of a three tier rating plan.”

In other words, the former “fix” for small contractors didn’t work out. Reportedly, this bill is on a fast-track to becoming new legislation. We’ll keep tracking it and report as developments are known.

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Frequently enough, a worker’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim

From the serious to the flat-out ridonculous, in this installment we’ll update a few former posts and take a look at a few new stories in the sometimes bizarre world of workers comp cases.

On April 20, we discussed a previously little-known battle within NFL ranks, involving mostly ex-players who have been filing for workers comp benefits in California. State law allows the players to file if they played at least one game in California, and the benefit awards often are more generous than in other states, which costs franchises more money.

From the Bengals to the Saints

Insiders following the story had labeled it “the Bengals situation,” but then the Louisiana state legislature intervened, intending to help its native Super Bowl Champions with a little personnel problem.

Ooops.

The proposed legislation got skewed in the process, potentially affecting every worker in the state. What had been  a barely discussed industry issue suddenly was making regional, even national headlines.

But according to a May 4 article in Bloomberg Businessweek, the Louisiana lege has decided to stand down.

“The Saints had been pushing a bill to lessen its workers’ compensation costs for injured players. But Rep. Cameron Henry shelved the proposal Monday and said he doesn’t expect to bring it up again for the session that ends in June.

” ‘It became clear to all of the parties that it would be easier to work this particular issue out through contracts and the collective bargaining process,’ said Henry, R-Jefferson, after he declined to hear the bill on the House floor as scheduled.”

The players union may have influenced the lawmakers.

“The NFL Players Association argued that the claims complaints should be addressed in the collective bargaining agreement between players and team owners and that Henry’s bill will end up in court if it passes.

“Players union general counsel Richard Berthelsen said many of these claims were being filed decades later because the teams didn’t properly notify players of their workers’ compensation rights to make those claims.”

California employers and ‘safety contests’

What’s with California, anyway?

Maybe it’s because of being so populous, but the Golden State seems to generate more than its fair share of workers comp news. Our most recent California-related report concerned two former managers of a Smurfit-Stone facility who are set to be sentenced later this month after pleading guilty to a screwball scheme to steer injured workers away from proper treatment.

A question in that case was whether the managers were simply overzealous in pursuing company safety standards or whether company policy itself was at fault.  According to the Monterrey County Herald, “Part of the motivation, said the DA, was an incentive program that paid bonuses to managers and other employees if the number of reported injuries was minimized.”

Similar questions may apply in a recent settlement between six counties and the Raley’s grocery chain that operates as Raley’s, Bel Air Markets, Nob Hill supermarkets and Food Source stores, employing about 14,000.

According to a May 4 piece in The Sacramento Bee, the $550,000 settlement resulted from a 2007  investigation that began at one store in Amador County.

The Amador County DA’s office and the state insurance department “began a criminal investigation of a complaint that store managers at the store on Foothills Boulevard had tried to stop an injured employee from filing a claim. Bel Air is owned by Raley’s.

“Two managers eventually were charged with multiple counts of insurance fraud.

“Investigators said they acted on an anonymous tip and learned that the managers dissuaded injured employees from filing state workers’ comp claims in order to earn bonuses for themselves by maintaining the store’s injury-free record.”

The managers eventually pleaded guilty to misdemeanors, drawing substantial fines,  probation and community service. However, the one-store investigation led authorities to widen the inquiry that led to the settlement, which includes neither admission of guilt nor denial of charges–but also contains a provision for “a $150,000 sanction if other violations occur in the next five years.”

The next case also involves a purveyor of food, apparently a well-known bagel chain. Here’s the lede from a May 5 post at examiner.com: “If you live in the Bay Area, you’ve probably seen a Posh Bagel store. If you live in prison, you may soon see Posh Bagel’s management on your cell block.”

It seems the California Department of Insurance (CDI) has powers of arrest–in late April CDI agents “slapped . . . the bracelets” on the top three execs of the chain, who now stand charged in what looks like yet another slipshod scheme to  game the system.

“The trio stands accused of what is commonly known as workers’ compensation premium fraud. To understand this crime, you must know that workers’ compensation insurance premiums are determined by such factors as the number of employees on a company’s payroll, the amount the employees are paid, and how frequently the employees get injured on the job.

“All employers in California are required by law to carry workers’ comp insurance, and it isn’t cheap. Employers that aim to lower their workers’ comp expense through dishonest means try all sorts of tricks, from under-reporting payroll to lying about the state in which their employees work.”

The examiner.com account is pithy and more than a bit sassy, well worth reading for the writer’s take on how ill-advised it is to concoct bozo attempts to cheat a system that has necessarily evolved systems to detect cheaters, whether the cheaters be employers or employees, or  insurance or medical providers.

Others may disagree, but this seems to be the “nut graf”:

“Speaking of dumb, CDI alleges that in June 2006, Posh inadvertently sent its former workers’ comp insurance carrier, Applied Underwriters, an internal spreadsheet that showed different payroll data than the company had previously reported to the insurer. When Applied asked Lee what gives, she allegedly said the insurer was mistaken and canceled the policy, CDI said. Posh turned around and took out a new policy from Endurance Reinsurance Corporation of America.”

Like we said in the Smurfit-Stone case: dumb & dumberer…

Although, to be fair–as the examiner.com post reminds us–these accusations are only allegations. We will follow along.<

OK, one last case for this post, involving this time not an employer, but an employee.

‘Stripper Stripped of Her Disability Check, Charged with Insurance Fraud’

Won’t even comment on this, much; if you’re interested, read here.

Here’s the small comment: Strippers provide a legal service, one which many seem willing to subsidize. But doesn’t it test the limits of goofy to swear that you can’t move well…and then go swing on the pole? naked? in a place where anybody might walk in?

In an April 6 article, The New York Times reported on what was then an under-the-radar, developing story involving the NFL and workers comp benefits in California.

At the time, apparently only a few league insiders and legal types were following the developments of what was being cast as “the Bengals situation,” involving hundreds of retired, injured players getting better benefits by filing under California’s surprising set of rules:

Hundreds of players pursuing claims

“California provides the only workers’ compensation system that allows retired pro athletes to file claims for long-term injuries sustained on playing fields years or even decades before. Quietly, hundreds of football players have received awards or settlements worth at least $100,000 and 700 more players are pursuing claims, many of them by satisfying California’s unique requirement that they played at least one game within state borders.”

That “one game” thang seems to be the crux of the dust-up.  So much so, that some NFL teams have challenged the status quo:

“ ‘It was the sheer number of claims that really started to get the attention of certainly the Bengals and, I think, of other clubs as well; it became an extreme cost,’ said Sam Duran, a lawyer based in Cincinnati who represents the Bengals in workers’ compensation matters. ‘These players have workers’ compensation rights. Those rights happen to be in Ohio.’ ”

In other words, NFL teams are pushing to bring the cases back to their states of origin: If you played for a team based in Ohio, file in Ohio, etc.

The problem, of course, is that the “home states’” benefits that get awarded are often meager, compared to what the former players can get by filing in California.  So injured players have often ignored contract clauses that were “aimed at restricting workers’ compensation option” and filed in California, leading teams to sue players in state court.

A legal maze

The result? “The Bengals situation, as it has become known among the few people paying attention to it, has developed into a knot of legal strings, cases, venues and precedents that even those involved have difficulty untying.”

For example, the Miami Dolphins are taking the tack that such matters must be decided via the arbitration regs in place as part of the players union’s collective bargaining agreement. (Florida law, apparently, does not recognize professional athletes as “employees.”)

From the union’s point of view, contract clauses such as used by the Bengals and Titans are legally unenforceable because of certain California statutes; furthermore, neither “could the union itself bargain away those rights on behalf of players collectively in current negotiations over a new labor agreement.” Perhaps even more compelling, union attorneys contend that the players are backed up by decades-old U.S. Supreme Court rulings that allow “employees from states with limited workers’ compensation benefits . . . [to] file in any state that will accept them.”

The cases of dozens of former Bengals’ players started in state court but got moved to federal court (still in Ohio) and may be decided later this month.

In some cases, state courts have even crossed swords: “After an Ohio judge granted the Bengals’ motion to vacate the California awards pursued by Wilson and other Bengals, the California workers’ compensation judge Joanne M. Coane rebuked not only the team but the Ohio court for issuing the ruling, saying the [Ohio] court was ‘not legally empowered’ and that the ruling ‘has no legal effect.’ ”

Proposed bill could affect all Louisiana workers

More recently, the “Bengals situation” has lost its low-key status. From the April 16 BusinessWeek: “An attempt by the New Orleans Saints to lessen its workers’ compensation costs for injured players mushroomed Thursday into an issue that would apply to all businesses and employees in Louisiana.”

From an April 15 nola.com piece via the Times-Picayune: “A bill that started out trying to lower the New Orleans Saints’ payouts of workers compensation benefits to injured players was expanded in a House committee Thursday to apply to all employers and employees in the state.”

Wow–how’d that happen?

BusinessWeek says, “The Saints were pushing a bill by Rep. Cameron Henry that would require professional athletes for Louisiana teams to be subject to workers’ compensation benefits under Louisiana law if they are injured in a game or practice.”

The Times-Picayune piece says, “Because of possible ‘legal infirmities’ of carving out a niche in the law only for professional athletes, Henry got the panel to amend it to apply to all Louisiana companies whose workers are injured while working out of state.”

Players union disputes bill’s legality

BusinessWeek also makes a distinction not found in the NYT article, which mentions the Dolphins’ preference for arbitration via collective bargaining. According to BW, the players union favors arbitration, too, and in fact disputes the legitimacy of the bill: “The NFL Players Association argued that the claims complaints should be addressed in the collective bargaining agreement between players and team owners and that Henry’s bill will end up in court if it passes.

” ‘With all due respect to Louisiana and any other state, you can’t deal with our issues in California. Only we can deal with that,’ said players union general counsel Richard Berthelsen.”

Some question the need for filing claims for injuries that may go back decades. Berthelsen is indirectly quoted in the BW account, indicating that “many of these claims are being filed decades later because the teams didn’t properly notify players of their workers’ compensation rights to make those claims.”

Another state rep wants to slow down, according to the TP: “Rep. Herbert Dixon, D-Alexandria, the committee’s vice chairman, urged Henry to delay action on his bill since the amended version deals ‘with all employees in Louisiana’ who work out of state, not just athletes. Ponti [another state rep, who voted against the bill] agreed: ‘It leaves a lot of questions unanswered.’ ”

‘Unintended consequences’

BW quoted Ponti:  ” ‘I’m concerned about passing something that we don’t know the unintended consequences of. Is this not something the players and owners could work out in their contract negotiations?’ said Rep. Erich Ponti, R-Baton Rouge, chairman of the committee.”

Sounds like this complicated issue will take quite a while to work through the courts, so it just may be up to collective bargaining to address it in the next NFL-players union negotiations.

Meanwhile, oddly enough,  Rep. Henry’s out-of-date Web page makes no mention of House Bill 1097, but a copy can be found here.

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Whether you’re an injured employee or an aggrieved employer, if you’re facing legal problems regarding workplace injuries, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Choosing an attorney