Modesto Diaz and Michael Gianchino have most assuredly spent many years opposing one another in workers’ compensation cases in the state of California.
Diaz, the managing partner at Santa Ana-based Leviton Diaz & Ginocchio, Inc. represents plaintiffs, while Gianchino, a partner an Oakland-based Hanna, Brophy, MacLean, McAleer & Jensen, LLP, works with defendants.
But on one Friday afternoon in May, the veteran lawyers shared a table, along with moderator Richard L Wagenheim of Haliczer Pettis & Schwamm, at the annual Sports Lawyers Association meeting in Los Angeles. They sought to find common ground at the intersection of sports concussions and workers compensation claims in that state.
At best what they found was a tiny patch of grass.
Throughout the session, Diaz empathized with former professional athletes, who have suffered cognitive decline after having their “bell rung” too many times over their careers. Meanwhile, Gianchino questioned whether there was “substantial medical evidence” linking garden-variety impacts in professional sports with Chronic Traumatic Encephalopathy (CTE).
Diaz set the stage, noting that California is one of a handful of states that recognize the cumulative trauma injury, which occurs over a period of time.
“One occurrence may not be that significant, but if it happens over an extended period over a time, such as player’s career, then you have an issue,” he said. “No one wants to accept responsibility for the consequences of these injuries and this is where I frequently interact with defense counsel.”
Gianchino was then asked by the moderator if repeated blows to the head can ultimately lead to an insidious, progressive disease?
Attorney Questions Whether TBIs and CTE Are the Result from Multiple Hits to the Head
“That is the $64,000 question,” said Gianchino. “But If you are asking me, can multiple traumas result in an injury to the head, I would be like an ostrich putting his head in the ground to say no. If you are asking whether TBIs and CTE has been established as a result from multiple head traumas, I think that is still at issue from a medical standpoint.”
When that question becomes resolved to the satisfaction of all, then the California Supreme Court case General Foundry Service v. WCAB (1986) 42 Cal.3d 331, will come into play. That case established that the five-year state of limitations from the date of injury in is waived when (1) the Workers Compensation Appeals Board has expressly reserved jurisdiction and (2) the applicant has an insidious, progressive disease. California Workers’ Compensation Practice, 4d.: 2015 Update, edited by Matthew D. Mandelbaum
Diaz was then asked how he handles a former player who walks into his office and says he is having headaches, but has never been identified as having suffered a concussion?
“Some occupations we know nothing about,” he said. “We don’t see the injury. Football is different. We all see it every weekend. We are seeing this impact between world class athletes. You can’t sit there and say that when we see these guys do year after year on the playing field is not causing damage.
“When someone like that comes in, I am asking this individual to tell me about their life. The more I talk to them, the more I find out that they have vertigo, that they have sleep issues, that they have problems in their relationships, that they are quick to anger, or that they have depression.
“I have had a 6-foot-7, 300-pound guy break down and cry because he couldn’t remember the name of his five children. I have had a guy tell me how he and his wife were having someone over for dinner and how she sent him to the grocery store to pick up what they needed. She gives him a list because he can’t remember everything. He goes to the grocery store and goes down every aisle and picks up what they need. He then drives home and pops the trunk only to find that there is nothing in there. He has left a full cart of groceries in the parking lot.”
Diaz went on to bemoan the system for “shifting the medical burden to taxpayers. No one wants to take responsibility. But someone will eventually have to pay.
“Virtually every case I file is denied. ‘I am denying that claim. Therefore, I don’t have an obligation to provide your client with medical treatment.’ So I have to go back out and litigate and try that case. If I am successful, then they have an obligation. But they still have the ability to send the claim to some company that they hire with the specific intent of trying to find a way to weasel out of providing that treatment.”
Gianchino was then asked about the former player, who complains only of headaches.
“For the low-grade, Post-Traumatic Brain Injury Syndrome, we have adopted a model, where the industry deems it a low-grade exposure,” he said. “There’s no indication of future brain damage, or progressive, insidious disease. We already have a system that addresses this.”
This will change when CTE can be diagnosed in the living, noted Modesto.
“When CTE is diagnosed in the living, we will have ‘substantial medical evidence,’” said Modesto. “My clients can then say: ‘I have been diagnosed with CTE because of this medical procedure.’”
Ruffin and the Role It Could Play
Aside from General Foundry, the attorney identified another case that will play a key role with the aftermath of sports concussions and workers compensation laws in California (Ruffin v. Olson Glass Co. (1987)).
“In Ruffin, a claim was filed suggesting that a degenerative knee condition should be deemed an IPD, and that they should withhold jurisdiction beyond the 5-year statute of limitations,” Gianchino said. “The court said we’re not going that far.
“Ruffin helped us determine what an insidious, progressive disease (IPD) is. It gave us three elements. An IPD is caused by 1) Remote, undramatic work exposure, the significance of which is likely to be unappreciated; 2) The disease worsens over time; 3) and a long latency period between exposure to the risk and the onset of symptoms.” Asbestos cases, for example, fall under this category.
Modesto summed up the plaintiff’s perspective, noting that “it is all about the Benjamins. It costs money. People that should be responsible are resisting. I understand the business end of it. But, we need to come to some sort of arrangement or compromise.”
