Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees.

Professional football requires two types of insurance: general liability and workers’ compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers’ compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.

With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers’ compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one.  Dr. Julian Bales, Medical Director and member of the NFL’s head, neck, and spine committee told ESPN “insurance coverage is arguably the biggest threat to the sport.”[1]

A study done by the University of Pittsburgh Medical Center’s sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or “C.T.E.” The problem with this disease is the unknown “trigger” on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It’s concerning for carriers to know they could be on the hook years down the road given the unknown.

Similar to asbestos claims in workers’ compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.

For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.

California has one of the most liberal workers’ compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers’ compensation court found that a former player’s 1989 settlement for cumulative industrial injury “does not extend to the then-unknown cumulative injury to the brain.” Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson’s and Alzheimer’s could be blamed on football. Doctors may ask, “how long did you play football and how many head injuries did you have?” and cite that as the cause for a claimant’s brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the “cause” of their injury or diseases.

Workers’ compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers’ compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact one of the attorneys at Lee & Brown, LLC.

 

[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn

BECAUSE IT GOES TO 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. 2019 Rule 11 revisionsWith the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11, which pertains to the DIME process.

The DIME program has seen little change since its inception in 1991, yet it is an essential piece of the Colorado Workers’ Compensation system. There have been attempts throughout the years to change the procedures from both respondent’s and claimant’s bars but to no avail. After three years of collaboration and tedious consideration, the Division of Workers’ Compensation has finally adopted a new rule that will address key challenges of each stakeholder. This is due in part to weekly staff meetings with representatives from both sides of the bar commenting on the changes and individual meetings with each side of the bar. There were over 50 revisions to Rule 11 and a Public Rule Hearing held for additional comment.

 

Effective January 1, 2019, these revisions and changes to Rule 11 will take place. Several key changes to the Rule:

     

    • There will now be a three-tiered payment system based on the date of injury to the filing of the DIME application and the number of body regions indicated on the DIME application;
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    • The DIME physician must receive the fee prior to the requesting party scheduling the DIME appointment;
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    • The Notice and Proposal and DIME Application are now combined as one document;
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    • The time-frame to schedule a DIME appointment is extended to no earlier than 45 days or later than 75 days after the requesting party receives the notice of the DIME Physician Confirmation; and
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    • Parties will now be responsible for agreeing on a singular medical records packet to send to the DIME physician.

     

 

The Division Rule will go into place January 1st, but the Division has indicated there will be some leniency the first month to sort out compliance issues. By February the Division will be enforcing the new process. Any Notice and Proposal with a certificate of mailing dated on or after January 1, 2019 is subject to the new Rule 11 provisions.

 

One provision of the Rule that will be advantageous for respondents is the requirement that once a Notice and Proposal is filed, claimant must simultaneously file a DIME application. With the current Rule 11 provision, claimant could file a Notice and Proposal to perfect their jurisdictional requirement to object to the Final Admission of Liability but could wait on filing for a DIME. Sometimes it would be months, or even close to a year, before a DIME application was filed and physician selected. Hopefully, the new Rule 11 revisions will bring a speedier DIME process and claim resolution/closure.

 

One negative effect of the new Rule is that parties are now to agree on one set of medical records to be sent to the DIME physician. This could create more litigation as claimants may not want to provide certain records, but respondents may feel they should be included in the medical packet. A standoff could require pre-hearings to adjudicate the matter. This is likely why the Division extended the time requirement to 45 – 75 days so that parties have time to reach an agreement on the medical records submitted and additional time to set the DIME appointment.

 

With these changes to Rule 11, there will be a lot of questions that need to be addressed. The attorneys at Lee & Brown, LLC are here to answer any questions you may have regarding the new changes to Rule 11 and will be conducting training seminars “on our DIME” early next year to go over all these changes. Below are some helpful links from the Division of Workers’ Compensation which provides general DIME information and new timelines to consider.

 

https://www.colorado.gov/pacific/sites/default/files/DIME_Presentation_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/Important_DIME_Timelines_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/General_DIME_Fee_Information.pdf