Could Long-Retired NFL PLayers Collect Comp for Dementia?

Friday, April 16, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

The New York Times has an interesting piece on the growing litigation of former National Football League players suing for Workers’ Compensation benefits in California as a means to increase their benefits for the alleged effects the sport has on their diagnosed dementia.  While I will not assume I have knowledge of California law, I would like to explore the possibilities of this occurring in the state of Florida.

Considering Florida has three NFL teams, one as old as 1966, there is a significant pool of potential Claimants this can affect.  First, we have to remember that professional athletes are excluded from the Workers’ Compensation Act, if they are performing their “athletic duties.”  A professional athlete can receive benefits if they are working in a non-athletic capacity, like at a team press conference.

But, there are professional sports teams in Florida who do decide to voluntary carry Workers’ Comp coverage.  If any one of our three NFL teams does do that, then this analysis would apply.

If a team opts (or opted in the past) to provide W/C coverage then there would two theories of how these NFL veterans could seek benefits.  One theory could be through occupational disease.  The second could be through repetitive trauma.  I will walk us (briskly!) through each theory.

Occupational Disease

Occupational disease would be the harder route of the two.  The new law (as of 2003) requires the employee to prove through epidemiological studies that the exposure may cause the disease he suffers from and the employment is the major contributing cause.  It is likely that the current crop of NFL veterans that the NY Times cite are those who played before 2003.  Therefore, I will just focus on the pre-2003 law.

A player would be required to prove the following for an occupational disease: 

   1. the dementia is peculiar to the playing in professional football;
   2. he contracted dementia during his employment;
   3. playing football presents a particular hazard of dementia;
   4. the incidence of dementia is substantially higher in football than in the public at large

Of all these four elements, I see number 2 as the hardest.  Dementia, from what I understand, takes years, decades, to develop.  A player can retire feeling mentally cognizant and then not be diagnosed until well into his fifties or sixties.   The problem is a lapse of time.

Also, proving that football presents a particular hazard to dementia would be a huge hurdle to climb, supplied by a battle of medical experts.  The causes of dementia are hugely varied and I can see a rigorous defense being mounted.

The one saving grace? An employee needs to report the occupational disease to the Employer with 90 days when he becomes first incapacitated, rather than 30 days after medical notice for repetitive trauma claims.

Unfortunately for Carriers, there is no contribution.  The carrier on the risk when the player was last injuriously exposed is exclusively liable.

Overall, occupational disease (especially under the new law) would be a difficult theory of liability for the NFL Players to seek benefits from.

Repetitive Trauma

An easier road is repetitive trauma theory.  There are only three requirements:

   1. The player must show prolonged exposure.
   2. The cumulative effect of which is injury.
   3. The player was subjected to a hazard greater that to what the public is exposed.

What is a “prolonged” exposure?  Almost any amount of time will do.  This is much easier for NFL veterans who only played for a few years.  This would be a fairly easy question for an expert to answer, with a straight face.

As for the cumulative effect, the NY Times article cites numerous medical and scientific studies that support the violence of football induced concussions can lead to dementia.  This would be the toughest part of proving repetitive trauma as the battle of experts would reappear.  Also, the player would still have to prove this prong under the major contributing cause standard.  A smart defense would be to find other factors, like genetics or external exposures, that could contribute to the player’s current state of dementia.

The third prong looks to be a piece of cake.  Similar to occupational disease except all the player has to show is the hazard is greater in football than what the public is exposed to.   Almost everyone would agree that footballs face greater hazards than the general public.  That is unless you are a Hollywood stuntman or MMA fighter.

Overall, the obstacles are difficult for the NFL veterans to seek benefits for alleged football related dementia, even through a theory of repetitive trauma.  I do know the NFL provides CT scans for players before each year to measure possible future brain injuries and the League just recently enacted a stricter policy regarding concussions.   This could further establish–at least in Workers’ Comp–a link between brain injuries suffered during playing football and future dementia.

Thanks to Dubriel’s Florida Workers’ Compensation Handbook, Ed. 2009 for help with this.

Michael Rabinowitz is an attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/