By JOSHUA CLIFTON, a Chicago-based writer who covers workers' comp and disability issues
Former professional football players, many injured years ago during their playing days, have gained the home field advantage in California for their disability claims.
The National Football League appears on the defense in this high-stakes contest, which threatens to burden the league whose team owners and their insurers could eventually face as much as $1 billion in claims payments.
Under the state's expansive workers' compensation code, players can file cumulative trauma claims for permanent disability even if they only practiced in the state at some point in their careers.
The code doesn't require former athletes to show a specific injury, only that they suffered cumulative injuries while playing in the NFL.
As a result, California has seen a surge in claims by out-of-state athletes, some of whom haven't played in the league since the 1960s, and other former sports stars who've barely played in the state.
Since 2008, nearly 1,600 cumulative trauma claims have been filed by NFL players in California. While injuries are commonplace for athletes in professional football, the nature of the claims vaults the issue into a whole other league.
California's statute of limitations only begins from the date which an employer notifies the worker of his right to file a workers' comp claim in the state.
That means the thousands of athletes who have played in the league since its official birth on June 24, 1922, are potentially eligible.
Who and what is behind the surge in claims? Venue shopping on behalf of plaintiffs' attorneys, for starters.
Take lawyer Mel Owens, for example, a former player with the Los Angeles Rams in the 1980s and now a partner with the law firm of Namanny, Byrne & Owens.
Owens, who didn't return phone calls, is culling the NFL Players Association's records of retired injured players. Since cumulative trauma claims are not covered under other states, sending the cases back to states where an NFL team is based would likely be thrown out. Hence efforts by attorneys like Owens who specialize in helping athletes pursue cumulative trauma claims in the Golden State.
The cost of those nearly 1,600 claims filed since 2008 is more than $375 million, said Robert Murphy, global sports and events practice leader at Marsh in Philadelphia. The projected cost of these future physical cumulative trauma injuries is likely to surpass the billion-dollar mark.
New claims are being filed at a rate of more than 500 annually, and research by insurance brokerage Marsh indicates that the average cost of those claims is between $150,000 and $200,000 per claim.
"We're looking at right now costs accruing between $75 million and $100 million," Murphy said. "That equals out to about $3.5 million per team."
Allowing players to file cumulative trauma claims in California could eventually spell big trouble for NFL and other sports franchise owners, said Alex Fairly, senior vice president for Willis insurance brokerage in Amarillo, Texas.
"No one has really contemplated this problem, but I think there will be enterprising attorneys out there who see the bigger opportunity," Fairly said. "In the end the sports world is just a speck on the wall."
Taking into account the number of potential claimants, cumulative trauma claims against the NFL's 32 teams could even surpass the $1 billion mark, and this for a league that collects $8.5 billion in annual revenue, said Fairly, who heads his firm's global sports practice.
Is California powerless to stop the flow of cumulative trauma claims? Let's wait and see.
In May, the California Workers' Compensation Appeals Board granted a petition for reconsideration in the case of 43-year-old Wesley Carroll. A second round draft pick, the wide receiver played for the New Orleans Saints from 1991-1992, and then for the Cincinnati Bengals in 1993.
During his short career, Carroll claims to have sustained injuries to his head, neck, back, shoulders, elbows, wrists, hands, knees, ankles, and feet, as well as hypertension and internal damage to his liver. Other than playing a few games in California, Carroll never worked in the Golden State during his football years.
Carroll filed a disability claim in California on the grounds that he suffered from cumulative trauma, and was entitled to 46 percent permanent disability, but the board reconsidered following an appeal by the lawyer representing team owners.
Timothy Peterson, the lawyer representing the owners of the Cincinnati Bengals and the New Orleans Saints, argued that California's reciprocity clause allows cases to be sent back to other states.
Sending cases back to other states where the teams are based, and where cumulative trauma claims would not qualify for workers' comp due to stricter comp laws, would allow team owners to avoid paying disability payments.
The reciprocity provision, Section 3600.5(b) of California's labor code, states that when an employer sends a worker to California on behalf of the employer, the employee must go back to their home state to file an injury claim, as long as the home state has a statute which recognizes California's reciprocity provisions.
A decision by the California Worker's Compensation Appeals Board, which is expected to rule on the Carroll case this fall, matters because the NFL's ability to defend itself against workers' comp claims from former players may hinge on this reciprocity clause.
Fewer than a dozen states have reciprocity agreements, said Peterson, a partner with Peterson & Colantoni in Ladera Ranch, Calif.
With 50 separate workers' comp codes that have to be approved by state bureaus and then upheld after challenges, getting states to pass reciprocity agreements isn't going to happen soon if at all, Murphy said.
"I think there are numerous challenges with respect to reciprocity," he said.
Efforts to pass reciprocity laws have been unsuccessful. A bill crafted in early 2010 by Louisiana state Rep. Cameron Henry, R-Jefferson, at the behest of the New Orleans Saints would have created a reciprocity statute in the state.
It faced opposition by the NFL Players Association, which argued that the cumulative trauma claims issue should be addressed in the league's collective bargaining agreement, not by the legislature.
The bill was eventually shelved after lawmakers attempted to remove the carve-out for professional athletes and expand the language to include all Louisiana workers.
NFL representative Dennis Curran, who testified in support of the bill, said certain workers' comp issues can be brought up with the union, but collective bargaining agreements "come and go, and it is the state statutes that control."
In California, former state Sen. Quentin Kopp in 1997 pushed for a bill exempting professional athletes from filing a claim in the state unless a specific injury occurred there. The law died in committee.
While there appears to be little support for passing and changing existing reciprocity legislation, tightening the statute of limitations is another matter. "Employers shouldn't be on the hook for an indeterminate period of time," said Peterson, the lawyer for the two NFL teams.
Meantime, NFL sports franchises shouldn't sit back and wait for lawmakers to act, Murphy said. "While you wait and do what you can to support your own state legislature and workers' comp bureau to achieve that outcome, successful teams do not sit back and wait for that provision to be changed," he said.
There are practices that can be implemented to gain control or mitigate these expenses, Murphy said. This includes researching a team's expired coverage for athletes who played decades ago.
"The terms and conditions of policies issued in the 1960s through the 1980s were much different than they are now and there potentially is full coverage to tap into," he said. "But you can't tap into it if you don't know it exists."
THE DEMENTIA DIMENSION
Cumulative trauma claims aside, the case of former NFL lineman Ralph Wenzel has complicated matters further.
His case adds a new area of liability for NFL teams, one of work-related dementia claims, said Mark Noonan, managing principal at Integro Insurance Brokers.
Wenzel, who played for the Pittsburgh Steelers from 1966 to 1970, and then for the San Diego Chargers from 1972 to 1973, is the subject of a claim filed in California earlier this year by his wife. She argues that trauma to her husband's head suffered on the gridiron led to Alzheimer's-type dementia, from which the ex-Super Bowl player today suffers.
Wenzel, 67, lives in an assisted-living facility, according to the Ralph Wenzel Trust. His neurologist attributes his condition to the numerous concussions and other brain trauma he experienced as a player.
His claim, too, is under review by the California Workers' Compensation Appeals Board. The outcome has staggering financial implications for the workers' comp system and NFL team owners.
"The cost of a dementia patient would be substantial because you could have a perfectly healthy physical person who could survive for years," Noonan said.
While there's no way--at least not yet--to show that blows to the head cause dementia, there's plenty of evidence to suggest that repetitive trauma to the head is cumulative and eventually leads to permanent damage.
A report published in August in the "Journal of Neuropathology & Experimental Neurology" found that professional athletes with repetitive head trauma may be prone to the development of a motor neuron disease similar to amyotrophic lateral sclerosis, or Lou Gehrig's disease.
If dementia conditions are ruled work-related, the U.S. government will likely move to transfer the costs from Medicare and Medicaid to insurers and employers, Noonan said.
"You're talking about the potential for huge class action (litigation) here," Murphy said.
Though a 2009 survey commissioned by the league found that the rate of players aged 50 and older with dementia-related disorders is five times higher than the national average, the NFL isn't ready to accept liability.
A statement issued by league officials emphasized that the study did not show a link between head trauma and dementia-related conditions, and that such diseases were still rare among athletes.
The NFL has conceded that more research is necessary and is in the midst of conducting its own neurological study of retired players.
Calls placed with the NFL headquarters for this story were not returned.
While the NFL remains mum on the Wenzel case, the league and franchise owners are taking steps to address players' concerns.
At the urging of Sylvia Mackey, wife of former Baltimore Colts tight end John Mackey, the NFL and the Players Association launched the 88 Plan, named after the Hall of Famer's jersey number.
Mackey sustained a series of head injuries during his playing career in the late 1960s and early 1970s, which his wife said has left the family big medical bills to pay for care of early onset dementia.
Under the 88 Plan, former athletes with dementia-related brain conditions can receive up to $88,000 a year from a trust fund administered by the union and the NFL.
If the league is forced to come up with hundreds of millions of dollars in payments, because players' claims were successfully filed in California, it could start a movement that calls for a federal approach to workers' comp laws, Noonan said.
"It is not something that I'm thrilled with, but the reality is that they've done it before with nuclear employees and longshore and harbor workers," Noonan said.
November 1, 2010
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