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Dr. Eleanor Perfetto, the wife of Ralph Wenzel, who retired from playing in the National Football League in 1973, has filed a claim under the California workers' compensation system for coverage of her husband's brain injury suffered when he was a professional football player. His repeated head traumas, which cannot be proven to have happened when he played a game in California, have led to his severe dementia and need for institutionalization.

California has the only workers' compensation system that allows retired pro athletes to file workers' compensation claims for long-term injuries sustained while playing years or decades before--even if they only played one game within state borders or merely had a California agent.

And California's statute of limitations does not begin until the employer formally advises the injured worker of their right to workers' compensation.

Originally, the law was meant to protect transient workers, such as flight attendants and truckers, who were injured or become ill while working in California.

The result is that California, it is believed, has attracted more football-related claims than all other states--an estimated 1,500 cases in the past two years.

On May 24, 2010, a decision in California suggested that there were criteria in which another jurisdiction could control these types of cases. The criteria include that the player was in the state temporarily; that the employer is covered by traditional or self-insurance; and that the home state in question reciprocates with California. (see "Plugging the Line," on Riskandinsurance.com for more background).

In addition to jurisdictional issues, arguments also circle around causation in head trauma cases. With chronic traumatic encephalopathy, or CTE, doctors cannot provide definite proof that an injured worker had CTE until the patient is deceased and the brain is studied.

HEAD TRAUMA AND THE WORKPLACE

Although the U.S. Bureau of Labor and Statistics (BLS) has reported that nonfatal work-related injuries have declined since 2007, according to the National Center for Injury Prevention, each year 50,000 Americans die of a traumatic brain injury and 235,000 are hospitalized. At least 5.3 million Americans currently need long-term or lifelong help to perform daily living activities as a result of a traumatic brain injury. The National Safety Council reports that there are more than 300 head injuries sustained every day on the job, or greater than 120,000 every year. More than 50 percent of these cases required days away from work or job transfers or restrictions.

If dementia, in such cases as Wenzel's, is legally tied to head trauma and brain injury, what happens when those types of injuries occur at the workplace? Head trauma could be likened to asbestos exposure with the effects of workplace danger taking years to manifest.

And keep in mind that, if an insurance company goes out of business due to an increase in severe claims such as these, a state fund will serve as backup--a fund typically paid for by businesses and insurers doing business in that state.

NEXT STEP FOR EMPLOYERS

Employers, including the NFL and its teams, need to be proactive with issues surrounding head trauma instead of waiting for a law to be enacted--or for a final ruling in California court system.

This case is more than a NFL workers' compensation debate. The larger issue this case brings to light is: What happens if Wenzel's dementia is determined to be a work-related condition? What happens to employers with former employees who suffer from dementia? Could their illness be tied back to a past work-related injury and then covered by workers' compensation? Would the exclusive remedy provision of workers' compensation come into play, giving health insurers the means to refuse payment for treatment? If the federal government has a chance to move the costs of caring for dementia patients out of the Medicare system, will they do so?

This new workers' compensation issue will continue to gain attention across all states. Louisiana, for example, introduced a similar bill that the New Orleans Saints were advocating because it would require professional athletes that play for Louisiana teams to accept Louisiana workers' compensation benefits if they are injured in a game or practice. The proposed bill gained more debate as the carve-out for athletes was removed and it was broadened to apply to all workers in Louisiana.

Although Louisiana House Bill 1097 was shelved for the 2010 Louisiana legislative session, this is not the last time employers--in all states--will be faced with the new workers' compensation issues involving head trauma created by the California case. Employers should keep abreast of potential reform legislation, support limits on forum shopping, and be mindful that head trauma remains a significant workplace injury that can be minimized by training, vigilance and safety equipment.

MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.

Read more at the WorkersComp Forum homepage.

August 5, 2010

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