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Neurology Today:
doi: 10.1097/01.NT.0000380922.48047.fe
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Workers' Comp Case Could Open Floodgates for Cases of Football‐Related Dementia

SHAW, GINA

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Ralph Wenzel was just 56 years old in 1999 when he first began showing symptoms of memory problems. Working in the garden with his wife, the former NFL lineman suggested a new planting spot for some strawberry plants — exactly where rabbits had devoured similar plants just months before. When his wife reminded him of the rabbits' destruction, Wenzel was baffled. He had no memory of it.

Within months, he was diagnosed with mild cognitive impairment, which soon progressed to dementia. At the age of 64, his condition had deteriorated to the point that he had to be placed in a nursing home.

This story — a former professional football player developing dementia at an unexpectedly early age and declining rapidly — is not new. Neurology Today is among a host of publications, including the New York Times, to cover the growing scientific consensus about the long-term damage done to the brains of professional football players by years of bone-crunching hits.

But Wenzel's case brings a new wrinkle to the story of chronic traumatic encephalopathy (CTE), the clinical name for the degenerative disease of the brain found in athletes with a history of concussions. The question: who pays?

Wenzel's wife, Eleanor Perfetto, PhD, has filed a worker's compensation claim on his behalf in the state of California, claiming that his dementia is due to his employment as a pro football player and thus entitles him to compensation as a work-related injury. The New York Times called the case “almost certainly the first to connect a player's early-onset dementia with his former workplace of professional football.”

Why California? In Wenzel's case, he played for two teams in his career: the Pittsburgh Steelers and the San Diego Chargers. But a unique quirk of California worker's compensation law allows professional athletes to file worker's compensation claims in the state if they played just one game there during the course of their careers. Many former players with orthopedic conditions who never played for a California team have successfully filed worker's compensation claims in the state.

This is partly because of another quirk in the state's law. Most other states have a statute of limitations mandating that claims be filed within one to five years of the injury, or of when they learn of their condition. But in California, until the employer formally informs the worker of their right to seek compensation, the statute of limitations does not kick in. Since NFL teams have largely avoided all discussion of worker's compensation — and have only recently acknowledged the possibility that CTE related to a player's football career exists — the clock hasn't yet started ticking for most retired players whose ongoing brain trauma may stem from injuries incurred in the 1960s or 1970s. (See neurotodayonline.com for a related story about NFL support of CTE research.)

If Wenzel prevails, most experts agree that it will likely open the floodgates for dozens of other cases to be brought by former NFL players with suspected CTE. The potential costs to teams, insurers, and the state worker's compensation fund are staggering. Wenzel's care alone costs about $100,000 per year now that he has been placed in a care facility.

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A DIVERSION FROM THE ‘REAL PROBLEM’

Gary Franklin, MD, MPH, a neurologist at the University of Washington in Seattle and an expert in worker's compensation cases, understands why the case was brought in California — but really wishes it hadn't been. “It's diverting attention from the real problem, which is the question of who has this condition, how it is best defined, who is eligible for benefits, and under what circumstances,” he said. “In a normal situation, the arguments should be around causation. What were the exposures, what is the disorder, and is it more likely than not that the exposures caused the disorder?”

Dr. Franklin compared the football players' situation to that of firefighters. Many states have laws stating that if certain cancers known to be associated with the toxic chemical exposure of firefighting are reported by a firefighter, then those conditions are presumptively covered.

Figure. DR. ROBERT C...
Figure. DR. ROBERT C...
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“The burden is not on the worker to prove causation; it's on the system to prove that it was not caused by the job,” he said. “It would seem to me to be prudent on teams' and on states' parts to deal with this straightforwardly and transparently and proactively, rather than waiting for the law to be established because of dozens of cases in one state. It seems to me that you could do something like presumptive coverage of NFL players or boxers if they had definite proof that they have the condition, and a certain level of exposure to documented head injuries.”

But there's the rub, said Robert Cantu, MD, co-director of the Center for the Study of Traumatic Encephalopathy (CTE) at Boston University, which has studied more cases of deceased NFL players with head trauma than any other. Right now, you can't provide definite proof that a former player has CTE — at least not while he is still alive.

“Although one can have a high degree of suspicion that it was trauma on the athletic field that produced the hallmark triad of symptoms associated with CTE —cognitive impairment, depression, and irrational and impulsive emotional behavior — there is no blood test, no spinal fluid test, no imaging study that definitively makes the diagnosis,” he said. “The diagnosis is only made by studying one's brain with special immunostains to the protein tau, to see if there's tau deposition where there shouldn't be any. That can only happen after death.” He noted that there are similarities between classic Alzheimer disease (AD) and CTE, but after death, immunostaining shows differences in the location of tau protein deposition; AD also has amyloid-beta deposition that is not a feature of CTE.

Both Dr. Franklin and Dr. Cantu agree that former football players with CTE should qualify for worker's compensation, but Dr. Cantu is troubled by the lack of certainty available with current science. “As a purist, I would like to have everybody who really has CTE be compensated, and I think we are the cusp of getting very close to being able to make the diagnosis in living people,” he said. “We are now studying a number of biomarkers and imaging modalities to see if we can't make the diagnosis in living individuals. Unfortunately, it will take some time to get the answer, because these living individuals are going to have to die before we can be sure if our modalities are accurate.”

Civil claims in a case like worker's compensation don't require that kind of absolute certainty, noted J.H. Verkerke, an employment law expert at the University of Virginia School of Law. “The legal element on which his case will turn is whether the injury arose out of his employment — that is, whether there is sufficient proof of a causal connection between his dementia and the conditions of his employment,” he said. “His claim will require medical evidence connecting head trauma to dementia and testimony about the incidence of head trauma in professional football. He will undoubtedly want to offer as much specific evidence about his own episodes of concussion or other injuries that are arguably precursors of his current condition.”

Even if Wenzel's claim is unsuccessful, Verkerke said, he is inclined to agree with other experts who have said that someday a player will surely be able to put together the evidence required to find his injuries compensable. “Once that happens, just like the claims for orthopedic injuries and the like, then you can expect that soon after lawyers will develop a standard settlement range and the cases will generally not go to trial.”

Realistically, the families of former players affected by football-related injuries — many of whom are incurring annual care expenses similar to Wenzel's, and who don't necessarily have the fortunes of star players with long careers and marquee endorsements — won't want to wait to file claims until the science is absolute.

The Wenzel family is actually better off than many families of players in similar situations. Dr. Perfetto, a Pfizer executive, has insurance that covers her husband, and Wenzel is also a participant in the 88 Plan, a program run by the NFL and the players' union that reimburses up to $88,000 a year in medical costs for former players with dementia.

Dr. Perfetto has said that she has filed the worker's compensation claim not for her own family's benefits, but to open the door for other players who are in less fortunate circumstances. The 88 Plan requires players to have vested in the league's pension plan, rendering those who played for only a few years ineligible; and unlike worker's compensation, it does not provide guaranteed care, but rather reimbursed costs.

“I do believe Dr. Perfetto is correct in this,” said Dr. Cantu. “I know that she knows a lot of players in this situation, and I think what she's doing is noble for others. I just find it a little unsettling that this precedent is now going to be settled in the courts when you can't be sure of the diagnosis. The younger a player is when symptoms arise, the more likely it is to be CTE related to his career, but it's still nowhere near 100 percent certainty.”

Ideally, Dr. Cantu would like to see such cases heard not by judges, but by a specialized medical panel. “If not that, at least judges who are very sophisticated in medicine,” he said. “It's going to be difficult, if you don't have a background in neurodegenerative diseases, to pick up on the testimony of the two sides.”

For his part, Dr. Franklin would like to see the issue taken out of the worker's comp courts altogether. “If I were a worker's comp national czar, or a team owner, I'd bring the teams together to develop model legislation for the states, since the federal government has no jurisdiction in worker's compensation except for federal employees,” he said. “They should put together a case definition that would meet the threshold of reasonable expectation that a player's dementia was caused by his football career. How much exposure? How many games? In what positions? When was the age of onset? If they can establish a case definition of the presence of CTE, then that group as a class should probably be able to get worker's compensation benefits if that was their employment.” •

©2010 American Academy of Neurology

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