NFL Players Seek Workers' Compensation Benefits for CTE

Wednesday, November 23, 2016 | 0

The latest challenge to the National Football League's method of handling brain injuries has come in the form of a federal lawsuit seeking relief for players through state workers' compensation systems.

Filed Monday in U.S. District Court for the Southern District of Florida on behalf of 141 football players from around the country, the suit seeks a compensability designation for a degenerative brain disease called chronic traumatic encephalopathy, or CTE.

At issue is whether the disease can be diagnosed in living patients. Citing advancements in medical research, the lawsuit contends that it can. The suit asks the NFL and the workers' compensation agencies in each state with a football team to officially acknowledge this research and make benefits available to living players diagnosed with CTE. 

"The view was it's not verifiable by science unless you're dead, and now it is," said Tim Howard, the attorney representing the players. 

The NFL has acknowledged CTE in previous court cases concerning its treatment of players with brain injuries. In 2014, a federal court approved the NFL's $1 billion settlement of a concussion lawsuit that would have compensated the families of players with CTE who died before April 2015. The settlement, which rests on the understanding that CTE can be diagnosed only through an autopsy, set the cutoff date in an attempt to avoid creating an incentive for former players to commit suicide, Sports Illustrated reported.

The settlement is pending, having been twice challenged in petitions to the U.S. Supreme Court. The high court will hold a conference on those petitions on Dec. 9.

The challenges, which both concerned the settlement's treatment of players with CTE, were filed this fall by the son of former Buffalo Bills player Cookie Gilchrist, who was diagnosed with the disease after his 2011 death, and a group of retired NFL players led by Raymond Armstrong.

The players Howard represents filed an amicus curiae brief in support of Armstrong's challenge this October. The brief cites updates in CTE research that should cause the NFL to revisit its perspective on the disease, the players argue.

"Now, we can identify CTE in retired players and current players by studying proteins that allow you to track damage in the brain," Howard said. "That science wasn't available in 2014."

Howard's lawsuit seeks to create a rebuttable presumption that would protect NFL players who exhibit signs of CTE.

The lawsuit states that the rebuttable presumption would apply if the claimant:

• Was employed by the NFL as a player.
• Presented clinical and persistent symptoms of CTE.
• Underwent neuropsychological testing to verify and document CTE symptoms.
• Tested positive for CTE.

"As long as the player can substantially assert by a preponderance of the evidence that his traumatic head injuries that were sustained while playing for the NFL are a substantial contributing or even an exacerbating factor for his development of CTE, he should be entitled to workers’ compensation benefits for such," the lawsuit states.

That's all well and good, said claimants' attorney Modesto Diaz, if physicians indeed can diagnose CTE in living patients. His firm, Leviton Diaz & Ginocchio in Santa Ana, California, often represents athletes.

"My last information — and I try to keep up with this stuff — was that the medical scientists felt that they were within five years of being able to diagnose CTE in living persons, but they weren't quite there yet," Diaz said.

Diaz said he keeps in constant contact with the NFL Players Association, and no one there has publicized a report definitively establishing a method of diagnosing CTE in living patients. 

"I can guarantee that they would've published it," Diaz said. "We have a panel of attorneys across the country that the NFLPA uses to represent people, and they're very quick to share important information like that. They follow the science very, very closely."

Diaz says the CTE research that the Players Association trusts most comes out of Boston University, which operates a center specifically for research on the disease. The CTE Center's website states that "at this time, CTE can only be diagnosed after death by postmortem neuropathological analysis."

Other universities are doing research on CTE, though. The lawsuit cites University of California, Los Angeles research released in February that identified signs of the disease in Fred McNeill, a former Minnesota Vikings linebacker, while he was alive. He was found to have the disease after his death.

The same UCLA team released research this summer saying that MRIs can detect similar patterns in the brains of living football players as those found in the brains of dead players diagnosed with CTE.

Additional research is detailed in the lawsuit, found here.