By Eric Farber & Ronald Mahurin
For many years, California Workers’ Compensation has been compensating retired pro-athletes (whether or not they played on a California team) for their orthopedic injuries. Only a few years of professional play can lead to an accelerated breakdown of the joints and tendons after retirement. Most retired players have trouble with the daily activities that we take for granted, and in some cases, problems begin soon after retirement while still in their early to mid-thirties. The most common complaint we hear from ex-players is that their bodies are so beaten that they are unable to even bend down to pick up or play with their children. In the past, when players complained of regular or even constant headaches, doctors simply attributed them to neck and upper shoulder problems. The doctors rarely reviewed behavioral issues in conjunction with the physical symptoms to determine if the player was suffering from the affects of a long term traumatic brain injury. Now, we understand that these headaches can be a symptom of a much more serious illness.
Chronic Traumatic Encephalopathy (CTE), also known as Pugilistic Dementia or Boxer’s Disease, has finally made it to the forefront as a real issue in the American consciousness. Systematic head trauma experienced while playing is a serious issue for current and retired players.
The disease, which is severe and progressive, can affect cognitive thinking, memory and behavior. For example, one of our clients has severe short term memory loss. He is often unable to remember basic conversations from the day before and sometimes even forgets his name. In fact, at his deposition he could not remember his home address. He is not allowed to be alone with his own children because he often wanders away from his home without having any idea where he (awkward phrasing) or why he left the house. This condition has left him unable to work and his NFL disability barely covers enough to take care of himself or his kids. He suffered five documented concussions and likely dozens, if not hundreds, of minor undocumented concussions in just three years of playing pro football. He’s only forty-one.
Significant research on CTE is relatively recent and still being conducted. If our cases were tried through the civil system, we would require significant live testimony on causation and methodology to pass the heightenedstandards required for expert medical testimony to put on our prima facie case. Because CTE research is still in its infancy, medical expert opinions regarding CTE may not survive analysis under the Daubert or “general acceptance” standards.
Causation and proof in the California Workers’ Compensation cases have a different standard of proof. Not only is the Workers’ Compensation Judge able to consider unconventional testimony, but the judge has an obligation to liberally construe the labor code which influences all aspects of workers’ compensation litigation.
Labor Code Section 4662(d) provides that an injury to the brain resulting in incurable mental incapacity or insanity is presumed to be total in character, which means 100% disability. With a 100% disability an injured worker is entitled to two thirds of their average weekly wages at the time of injury tax free for life. When litigating cases we always assert Labor Code Section 5412, which states that the date of injury is the date upon which the employee first suffered disability and knew that the disability was caused by employment in an effort to be awarded current dollars.
Proving physical disability in the California Workers’ Compensation system requires that the causation of the disease or disability be established by a ‘reasonable medical probability’. McAllister v. WCAB (City and County of San Francisco) (1968) 69 C2d 408,416. This standard applies for general physical injury, such as orthopedic issues. For psychiatric injuries the standard of proof is higher—but not significantly. See, Lab.Code Sec. 3208.3(c). Psychiatric injury must be proven by a preponderance of the evidence that actual employment events were ‘predominant as to all causes combined”. See, Lab. Code Sec.3208.3(b)(1). In other words, the work-related cause must have a greater than 50-percent share of the entire set of causal factors. This standard may be established from testimony of the Applicant (Plaintiff) themselves.
Concussion claims in the California Workers’ Compensation system combine the two standards above as CTE includes both a physical and psychiatric component. However, generally, a doctor’s medical report stating that to a reasonable medical certainty that the concussions cause the disability is enough to satisfy the standards of proof. It is actually quite rare to have live medical testimony in a California Workers’ Compensation trial. A thorough medical report is therefore crucial to a concussion claim.
Lowered standards of proof means increased efficiency. A workers’ compensation practitioner encounters a much lower hurdle for medical causation as compared to their civil counterparts. This results in trials that take no more than one day with reduced costs and much less risk to maintain a strong case.
While it is unclear how the civil side of NFL concussion cases will take shape in the Multi-District Litigation, California Pro-Athlete Workers’ Compensation claims remain a good way to compensate players for concussion claims.
Eric Farber is the Managing Partner of Farber & Foote, LLP. Ron Mahurin, is the director of Farber & Foote’s Pro-Athlete Workers’ Compensation practice. Farber & Foote, LLP is a full service practice located in California specializing in issues for athletes & entertainers. Farber & Foote filed the first CTE based California Workers’ Compensation case as well as the first ALS (Lou Gehrig’s disease) case caused by NFL concussions. Farber & Foote is wholly dedicated to helping players through its pro-athlete Workers’ Compensation Practice and its support for the Gridiron Greats Assistance Fund and other Pro-Athlete Charitable Foundations. Please visit www.FarberFoote.com/pawc or www.GridIronGreats.org for more information on how you can help retired players.
