An Interview with Judge Raymond Correio (Retired) by Therese DaSilva, Workers’ Compensation Judge (Oakland District Office of the WCAB)

Retired Workers’ Compensation Judge Raymond F. Corrieo is living proof that a workaholic can never really retire.  From 1997 until 2009, Judge Corrieo held court at DWC Santa Monica and DWC Marina Del Rey.  Upon retirement in 2009 with barely a two-week break, he assumed a position and a full case load with the defense firm Pearlman, Brown and Wax in Los Angeles.  Since then, retired Judge Corrieo has authored California Workers’ Compensation Sports Law Cases and Apportionment Case Law Updates, comprehensive guides with case summaries and analysis.  The outlines are updated on a semi-annual basis and are circulated among the workers’ compensation judges and within the workers’ compensation community.  Retired Judge Corrieo actively participates in the speaker circuit including many presentations for the California Lawyers Association.  Recently, retired Judge Corrieo took time out of his busy schedule to discuss Sports Law. 

It has been almost ten years since Assembly Bill 1309 created Labor Code section 3600.5 in 2013.  Section 3600.5 in part addresses professional athletes, including minor or major league players of baseball, basketball, football, ice hockey and soccer. It also operates to exempt and bar certain cumulative trauma claims filed in California.  Did changes in the law affect litigation of workers’ compensation cumulative trauma claims filed by professional athletes in California?

Tremendously! AB 1309 and Labor Code section 3600.5 made it more difficult for professional athletes hired outside of California and with minimum contacts with California such as only working temporarily in the state to pursue a cumulative trauma claim in California, but not impossible.  Practitioners must have a thorough understanding of the sports subspecialty in order to effectively navigate the complex issues of subject matter and personal jurisdiction and effectively represent their clients.  If an athlete is able to prove a contract was established in California, then California has subject matter jurisdiction over multiple teams/defendants and other complex workers’ compensation legal constructs such as whether there may be  separate cumulative trauma periods.  It is challenging for practitioners as well as the WCJ’s to determine the correct date of injury under Labor Code section 5412 as well as the corresponding liability period under Labor Code section 5500.5.  It is complicated!  For every case, it is really necessary to review and study section 3600.5, subdivisions (b), (c), and (d) since they are intertwined.  Subject matter jurisdiction is derivative while general or specific personal jurisdiction is not. 

Am I correct that in workers’ compensation sports cases a lot of the litigation involves jurisdictional issues?

Many sports cases deal with out of state teams.  In a cumulative trauma or CT claim you may have several defendants with a mix of a California team or teams and multiple out of state teams. This gives rise to inherent and often complex subject and personal jurisdictional issues.  Subject matter jurisdiction in a CT claim is derivative in nature. By that I mean when subject matter jurisdiction is established over one defendant in a multi-defendant CT claim it will generally apply to all defendants in the case. In contrast, general and specific personal jurisdiction is not derivative, it must be established as to each individual defendant in a multi-defendant sports CT claim.  A lack of personal jurisdiction will always trump subject matter jurisdiction over a specific defendant.  Trying to establish or refute personal jurisdiction is an extremely complex area of law both substantively and procedurally.  Easy to raise as an issue but very difficult to litigate correctly.  For example, in the case of  Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the U.S. Supreme court held that California lacked specific personal jurisdiction over defendant on claims by out of state plaintiffs who did not suffer their alleged injury in California. The non-California residents could not pursue their claims over the blood-thinning drug Plavix in California under the due process clause of the Fourteenth Amendment.  The U.S. Supreme court found that four justices of the California Supreme Court, the majority in this decision and who found California personal jurisdiction over Bristol-Myers got it completely wrong!

In sports cases there seems to be a lot of litigation related to formation of employment contracts or contracts for hire. Why is that?

This is an issue not only with respect to sports cases but also with respect to non-sports cases and is attributable in part to the “flexible” rules of contract formation for purposes of workers’ compensation. A contract for hire in workers’ compensation may be formed when where there is an oral acceptance by the athlete that takes place in the state.  If so, there is subject matter jurisdiction.  Contract formation cases in sports and non-sports cases are very fact-specific and fact-intensive.  It is all or nothing and that’s why the parties litigate these cases so passionately.  A valid oral contract that occurs in California first and is executed in writing out of state later may give rise to California subject matter jurisdiction.  The case Tripplett v. Workers’ Comp. Appeals Board, Indianapolis Colts et al. (2018) 25 Cal. Appl 5^th 556, 83 Cal. Comp. Cases 1175, 1108 Cal. App. LEXIS 652, was very helpful in clarifying contract formation requirements including the role of the agent/contract advisor to determine whether a contract is formed for purposes of workers’ compensation.  Again, the facts are crucial. 

In trying cases involving contract formation, witness credibility must play an important role.

Credibility is an issue in every case and even more so in contract cases, especially those cases involving an oral employment contract.  Even when testimony is not rebutted, it still must be credible.  As a WCJ, I would routinely make very specific credibility determinations with supporting reasons in my written decisions.  It is important for a judge to state specifically the reasons why they find a witness credible or not.  If the witness was equivocal, non-responsive, or consistently evasive during cross-examination these factors weigh against credibility.  Many retired athletes do not file claims for years after they stop playing.  If a witness’s explanation is implausible or contradictory, this impacts on their credibility.  As a judge, I would note this.   Witnesses are often nervous, but there is a difference between being nervous and being intentionally evasive.    If, on cross-examination, the witness is evasive and repeatedly refuses to answer key questions with a simple yes or no, it’s more than just nerves.  Judges try to create an atmosphere to facilitate testimony in order to make a clear and complete record.  Therefore, if the witness ignores repeated advisements by the WCJ that continuing to be non-responsive to questions by counsel will affect their credibility and believability as a witness but despite such advisements persists in doing so, this should be to their detriment.

There is a concentration of professional athlete workers’ compensation cases at certain Boards.  How did this occur?

Most of the cases are filed at the Anaheim and Santa Ana Boards because there is a concentration of applicant attorneys who file there. This goes back decades because applicant attorney firms felt the workers’ compensation judges at these Boards understood the issues and that trend has continued.  More recently, the Boards in Van Nuys, San Diego, and Oakland have seen an increase in sports cases.  Interestingly, when I was on the bench in Santa Monica and Marina Del Rey, I heard exactly zero sports cases.  After my retirement as a judge, I learned sports law from the ground up.   Retirement is great!

Retired WCJ Raymond F. Corrieo is supposedly working part time, but there’s no sign that he’s slowing down.   He has generously provided access to his California Workers’ Compensation Sports Law Cases and Apportionment Case Law Updates at the Pearlman, Brown & Wax website:   Education Materials – Pearlman, Brown & Wax, LLP (pbw-law.com)