It is rare for the paths of workers’ compensation and “The Worldwide Leader in Sports” to cross.  But that is exactly what happened over the last few months within the NFL labor dispute.  As the video of non-sanctioned player workouts rolled, and the bottom line “tweets” from players, owners, NFLPA reps, and the Commissioner scrolled, one of the major battles in the back room negotiations was the often overlooked issue of professional sports workers’ compensation claims. 

Typical of the workers’ compensation field, the issue was not flashy or headline grabbing.  Rather, it was more of a “where the rubber meets the road” point of contention.  At the crux of the battle was jurisdiction for injured players filing workers’ compensation claims, i.e., where can a player file his workers’ compensation claim.  The owners were fresh off an adverse federal court ruling in early 2011 which restricted the teams’ offset and reimbursement rights for team provided benefits and salaries when workers’ compensation benefits were also paid to injured players.  No doubt this intensified the owners’ desire to restrict the jurisdictions available to players for workers’ compensation benefits.  Conversely, the players refused to give ground on the workers’ compensation jurisdictional issue.  According to Super Bowl MVP Drew Brees, “ [we] will never let [the league] restrict our health and safety long term.”  

The NFL collective bargaining negotiations were taking place in Washington, D.C., but the epicenter of the debate was located clear across the nation in the State of California. Workers’ compensation legislation varies throughout our fifty states, and as a result, state specific benefits provided to injured workers also vary.  Some states pay higher monetary benefit rates, while others provide longer or more comprehensive medical benefit coverage.  It seems that California has both more lucrative monetary benefits and more comprehensive medical benefit coverage.  Plus, California has a very low jurisdictional threshold for filing a workers’ compensation claim.  In fact, it is reported that an NFL player who has played a game in California, even though an injury may not have occurred within that particular game, may still file a workers’ compensation lawsuit in California.  This is unlike many states where for jurisdiction to be proper there must be principal localization of employment which has as an element some degree of foreseeable future work performance. 

California and Florida currently share the highest number of professional football teams, each with three.  With professional football teams in San Francisco, San Diego, and Oakland, the comparatively high number of California team “home” games potentially expose numerous visiting franchises to literally hundreds of California workers’ compensation claims each season.  

With the low jurisdictional requirements, liberal monetary benefits and employee (and thus NFL player) friendly medical benefits, it is not surprising that team owners outside California want to restrict the locations of workers’ compensation claims.  Even if your local pro football team is located in a state where workers’ compensation benefits are more favorable to employers in general, the team will still have the added exposure for claims in a less favorable jurisdiction, such as California. The end result is a higher expense for providing workers’ compensation coverage in other states, like California. 

Ultimately, Drew Brees and the NFLPA were able to run out the clock in the collective bargaining negotiations (the new CBA does not include any restriction of workers’ comp claim locations) thus securing what will surely be hailed as an important victory for injured NFL players.  As the injury claims for repeat impact trauma and concussions with resulting mental and physical deficits increase, this will likely be a very significant and costly issue for the league.  The owners are not through fighting, though.  California legislation is currently in the works to close the jurisdictional loopholes which are being utilized by NFL players for workers’ compensation claims.  

No doubt, you will be hard pressed to find the final outcome of this issue on any SportsCenter broadcast.  But that doesn’t decrease the importance of this issue for NFL owners or regular employers throughout the nation.

Jonathan L. Berryhill, Esq. is the managing partner of Wilson & Berryhill, P.C., a Birmingham, Alabama defense litigation firm.  His practice centers on representation of employers, self-insurer funds, and insurers in all aspects of work related injuries and claims.  He is an active member of DRI and its Workers’ Compensation section, and also serves as the Vice Chair for the Workers’ Compensation Section of the Alabama State Bar.  You may contact Jonathan through the firm’s website at www.wilsonberryhill.com.

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Attorney Bill Pipkin & Robert Lewis of Crowe Paradis Services started off the morning with a thorough review of Medicare Set Aside provisions and their real life application in the WC world. New to the mix in 2010 will be a duty under §111 on employers/insurers/self-insurers to “self-report” WC claimants who are already receiving Medicare benefits.

A comprehensive review of state specific and federal challenges to benefits sought by illegal aliens was provided in the day’s second segment by Attorney David Wilson. In addition, David provided a nationally scoped state-by-state analysis of outcomes in challenged claims made by undocumented workers.

In the seminar’s last segment, sniffing out bogus claims, hilarious videos from real surveillance efforts were juxtaposed against practical pitfalls for both claims handlers and defense counsel. Steve Cassell of RSight Investigation shared his approach to surveillance efforts and his interpretation of the outcomes therefrom. Attorney Jeff Napolitano addressed the use of surveillance in WC claims before and during the legal process. Steve and Jeff were assisted by WC Committee Chair George Kagan in applying this segment's information and material to current defense files.

Now departing the 2nd Annual DRI National WC Review. Had a wonderful time; good food, good presentations, and good marketing opportunities. Got some CLEs, caught up with existing clients & DRI members, and spent some valuable face time with prospective clients. This event really offers everything you could want. Hope to see you next year.

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Well, the first day of DRI's 2nd annual WC Nat'l Review is drawing to a close. Heading back to the convention complex to catch Eddie Money in concert following the conference provided buffet dinner. Day 1 was a resounding success.

Craig Young, the seminar subcommittee chair, led off with a welcome to Orlando for attendees, and George Kagan, the WC committee chair filled in the blanks. The DRI seminar drew attendees from across the nation, emphasizing DRI & the Workers' Compensation Educational Committee's (WCEC; the DRI conference is partnered with them) theme that this ain't just for Florida folks anymore.

The opening segment featured "avoiding catastrophic claims from minor injuries." It was well attended and very thought provoking due in large part to the evidence based approach to medicine advocated by Drs. Nguyen and Randolph. Key to their presentation was an explanation of the Bradford-Hill Criteria for medical treatment, applying scientific principles to medicine. The attorneys on the panel, Bob Erlandson, Steve Habash, and Cristine Huffine translated the medical theory and evidence-based approach into practical application opportunities.

In the second segment, neuropsych Robert Barth, Ph.D. provided a fast hitting but informative list of 10 fundamental rules for attacking psychological claims. Dr. Barth also shared a website, www.asnr.org nomenclature, that defense counsel can use to decipher medical lingo on MRI & CT/myleogram reports. He shared the segment with attorney Susan Briggs, who counseled on the different approaches she's employed in defending psychological claims.

The last segment of the day was the industry panel, featuring attorney JC Roper along with Robert Johnson (McDonald's Corp) and Randy Fort (Meadowbrook). Many national topics were covered, stretching from incentivized return to work programs to developing and maintaining your defense practice, all with consideration of these trying economic times.

Time for dinner and some dancing.

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2nd Annual DRI WC National Review

Posted on August 17, 2009 09:40 by Jonathan Berryhill

Greetings from Orlando, Florida where we are eager to kick off the 2nd annual DRI WC National Review. The hustle & bustle of registration continues in what was mentioned in general conversation as the 2nd largest hotel in the U.S. As the final touches are applied, I was introduced to a DRI member from Hawaii, easily the winner of the award for farthest distance traveled. That's a long way from south Florida! If he can make it, so can you. Plan to join us next year and bring the family for the House of Mouse just down the street.

jonathan
Wilson & Berryhill, P.C.
Birmingham, Alabama
http://www.wilsonberryhill.com/

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2nd annual National WC Review

Posted on August 16, 2009 09:23 by Jonathan Berryhill

Reception was outstanding. The two hits of the event were the bowtie pasta shrimp scampi with garlic bread and Emmitt Smith and spouse mingling about. Lots of photo ops.

Dinner was at Mikado Steakhouse contained within the Orlando World Marriot complex with six other DRI members from locations stretching from Maryland to Louisiana. Eight restaurants in the complex to choose from. Passed at least four different hospitality suites, and the lobby is still full of attendees to both DRI and WCEC. Registration with DRI gains you admission to the WCEC seminar that stretches through Wednesday.

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Nationall WC Review

Posted on August 16, 2009 08:58 by Jonathan Berryhill

Greetings from sunny Orlando, FL, home of DRI's 2nd annual National Workers' Comp Review! If you haven't heard, DRI is conducting its seminar in conjunction with the 64th annual Workers' Compensation Educational Conference. Just waded through a packed lobby full of adjusters, vendors, and many familiar DRI faces from across the country. About to freshen up before the President's cocktail meet & greet. The speakers for our two day seminar met a little earlier, and everyone is looking forward to the kickoff tomorrow morning. Emmitt Smith, of Dallas Cowboy fame is the guest keynote speaker tomorrow. He's followed by the DRI speakers addressing such topics as keeping minor injuries from transforming into catastrophic claims; breaking the cycle on mental illness claims; and a panel of industry experts explaining the dynamics of claims handling and litigation in challenging economic times. You can't tell the economy's down by looking at the number of folks in the lobby!

As the seminar subcommittee vice-chair, I'll be updating this blog periodically, along with Steve Tipton. Hope you check back regularly as we fill you in on what you've missed down here. Next year, please plan to join us!

jonathan
Wilson & Berryhill, P.C.
http://www.wilsonberryhill.com/

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