11/22/2011

More Buck For The Bang

Brain trauma could be the asbestos of professional sports.

By Annmarie Geddes Lipold

Over the past 36 months, more than 3,000 former professional athletes from all over the country have filed workers' compensation claims in California. In 2011, an average of 100 new claims—worth around $200,000 each—are being filed each month by ex-NFL players alone, says Alex Fairly, a consultant with Global Sports Services, a Willis subsidiary. "Other sports are experiencing similar filing trends."

Tim Peterson, a Los Angeles attorney, estimates that currently there are "thousands" of players who have filed cumulative trauma cases long after their professional careers have ended. Peterson represents all 30 Major League Baseball teams and about 20 NFL teams. Ex-players, some who played decades ago, are also seeking relief for work-related occupational injuries outside of workers' compensation in the tort system.

Why the "gold rush" in the Golden State? Peterson points to California's generous benefits, its "toothless" statute of limitations, the acceptance of post-employment cumulative trauma claims and loose law concerning which states have claims jurisdiction as just a few of the reasons.

The uptick in claims began around 2006, Peterson says. He believes it stems from plaintiffs' attorneys who encouraged workers to file.

California does have on its books a one-year statute of limitations. However, in cases of occupational disease or cumulative injuries based on employment, a claim can be filed within a year of the date of injury or when the employee became aware of it. So, in the case of cumulative injury claims, the statute of limitations does not begin to run until the date the injury's effects are established.

Retired players seeking financial relief may consider attorneys a godsend. And indeed, many retired players settle for six-figure cash awards. But in doing so, they give up their rights to future cash benefits and medical care for their work-related ailments. The trouble is that medical costs can easily exceed the lump sum amounts over the long term. Many players will need surgeries, hip and knee replacements, treatment for permanent brain damage, ongoing pain management and pharmacy coverage.

Reversing the Trend
Peterson is trying to tighten up case law concerning jurisdictions in which a workers' compensation claim can be filed. He is behind two court rulings designed to narrow eligibility in California by jurisdiction based on 3600.5(b) in the California Labor Code. Peterson argues that, under the statute, players whose employment is primarily based out of state and who are not regularly employed in California should not have the right to file claim.

Currently under appeal, the rulings stopped former Cleveland Browns and Cincinnati Bengals players from continuing to receive benefits. Potentially, these are "landscape-changing cases," Fairly says.

As the home state of the Browns and the Bengals, Ohio bases claims on the location of the employer. Back in 2008, several Cleveland Cavaliers filed for workers' compensation benefits in California. Like some others, the Buckeye State has a two-year statute of limitations on claim filing. Also, it generally does not honor post-employment soft-tissue injuries. Its maximum weekly benefits run lower than in California. So it's easy to see why the ex-Cavs gave California a shot.
Compensation for Head Injuries
While players are filing in droves for workers' compensation in California, the most headline-generating concern stems from the long-term effects of player head injuries.

In early 2010, workers' compensation attorney Ron Feenberg filed what is considered a seminal case to determine the NFL's liability for dementia experienced by retired players. He represents plaintiff Eleanor Perfetto, who is suing on behalf of her husband, Ralph Wenzel, an ex-lineman for the Pittsburgh Steelers.

The suit represents a significant shift from the routine, lump-sum settlement cases. This case has a potential value of more than $1 million and will set a precedent in case law regarding long-tail liability for the NFL. Feenberg likens head trauma to asbestos exposure, a workplace injury that can take 20 to 40 years to become known. "Having a judge deem this [to be] work-related would move this forward and keep it very visible," Perfetto told the U.S. House Judiciary Committee in 2009.

Meanwhile, other players are seeking relief in the tort system regardless of whether or not they have received workers' compensation benefits. Last summer, two tort class-action lawsuits were filed to provide reparation for former football players suffering the long-term effects of traumatic head injuries. The lawsuits bypassed workers' compensation by seeking reparations for a class of players by going after the entire NFL rather than the teams. Among other charges, the lawsuits allege the NFL is at fault for the long-term effects of players' head injuries because it encouraged players to tackle with their heads and, thereby, did not provide proper training. The suits also charge that the NFL provided players with helmets that offered insufficient protection against the countless blows to the head players receive.

The first lawsuit, filed in California in July, involves about 75 players. Since then, more suits have been filed. All will be joined together and involve some 220 players, says attorney Tom Girardi. The other case, filed in federal court in Philadelphia, makes very similar assertions, but it has the potential to be more damaging because, if it is certified as a class, it could include thousands of retired NFL players who claim to suffer neurological injuries after playing for the NFL, wrote Mike McCann, a sports law professor and director of the Sports Law Institute at Vermont Law School and a blogger for Sports Illustrated.

"The potential damages in such a suit could rise to the hundreds of millions of dollars and primarily reflect health care costs unpaid by the league and the pain and suffering caused by neurological injuries," he wrote in a blog post.
But where does workers' compensation fit into this? Neither Girardi nor Larry Coben, who filed the Philadelphia case, could answer. Both say they do not know much about workers' compensation. Players are not barred from receiving workers' comp benefits and later bringing a tort action against an alleged third party, says Roger Thompson, author of the monograph entitled, "Recovery Available Following Sports-Related Injuries and the Potential Implications for the Workers Compensation Program," which was published through the American Society of Workers Comp Professionals.

If a tort action is successful, the payor of workers' compensation benefits would be entitled to recovery of any payments that have been made as well, Thompson, retired director of the workers' compensation unit of Travelers Insurance, says. Exclusive remedy is applicable only for the employer when workers' compensation benefits have been paid. "Once players go after the NFL, it is a whole new ballgame where they need only establish negligence on the part of the third party," Thompson says.

The NFL and the helmet manufacturers are third parties that played a role in the situation, Girardi argues. Coben agrees: "The NFL has always maintained that the repercussions of concussions are unrelated to playing football." The NFL, however, did begin acknowledging a connection last year. The league did not respond to interview requests from Claims Advisor.

For his part, Coben says his clients are not getting much in terms of benefits. Professional athletes receive salaries and benefits, including healthcare, short-term disability and long-term disability through collective bargaining and individually agreed-upon contracts.

Of course, all workers are entitled to workers' compensation benefits, but players have even more possibilities. Professional football players may be entitled to benefits from the NFL Player Care Foundation that include limited annual benefits for custodial care through the "88 Plan," Thompson says. That plan, funded by the league's 32 clubs, provides in-home care for up to $50,000 a year or assisted living benefits up to $88,000 annually for former players diagnosed with dementia. To qualify, players must be vested under a collective bargaining agreement by playing a minimum number of NFL seasons. "These additional benefits available today are a reflection of increased awareness of the dire circumstances being experienced by some of the former players," he says.

Getting benefits from such possible sources depends on the player's individual circumstance. Whatever the case, bypassing the workers' compensation system and addressing work-related ailments in the tort system reintroduces the very issues that led to the formation of the exclusive remedy doctrine in the first place.
Workers' compensation removes from the argument the concept of causation, or who is at fault for the work-related ailment. A century ago, if a worker made a poor decision at work that caused an injury, the worker suffered all the consequences without relief from the employer. It was difficult for workers to win tort suits because few could afford legal counsel as their employers could.

This move outside workers' compensation also introduces assumption of risk on the part of players, which is not a consideration in workers' compensation. In this instance, it means that professional football players took a risk they could get hurt and that this risk could cause lifelong problems.

While the courts sort through the complexities, players are likely to be compensated differently depending on various state laws and the skill and success of their attorneys. And this inconsistency that professional athletes experience in the tort system will be every bit as tragic as the stories they tell of their lives after they have played their last games.
Annmarie Geddes Lipold is a contributing writer to Claims Advisor.


Annmarie Geddes Lipold is a contributing writer for Claims Advisor.

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