Some professional athletes have a history of filing and settling workers’ compensation claims against their former teams, and later filing a second claim against the same employer. The language of the standard compromise and release agreement is not exactly air tight. The fear of loopholes inspire many employers attempt to strengthen the pre-printed language with a customized addendum that attempts to more specifically make the settlement binding on not only known, but unknown claims. Some WCJs refuse to approve a settlement with an air tight addendum. The claim of National Football League player Tony Dorsett case is a good example. But in his case, the WCJ decided one settled claim is enough for Mr. Dorsett.
The Los Angeles Times reports that a brain-injury claim by former Tony Dorsett was thrown out by a California workers’ compensation panel just months before he was diagnosed with early signs of chronic traumatic encephalopathy, a debilitating condition allegedly linked to repeated blows to the head. Following brain scans and other tests, UCLA researchers informed Dorsett, along with Hall of Fame offensive lineman Joe DeLamielleure and three-time All-Pro defensive lineman Leonard Marshall of their diagnoses a few weeks ago.
The 59-year-old Hall of Fame running back’s claim was dismissed in May when a workers’ compensation judge ruled that because Dorsett had agreed to an $85,000 settlement for injuries to “multiple orthopaedic body parts” in 1991, he could not file another claim for any subsequent injury. Dorsett appealed that workers’ compensation decision, but it was upheld in August. A three-judge panel found that language in the 1991 settlement released the Dallas Cowboys and Denver Broncos from all future claims involving virtually any body part, including the head.
Mel Owens, Dorsett’s attorney, said that he was not available to discuss the case, which claimed cumulative head injuries but did not specify CTE. Owens had 45 days to appeal the decision to the California Court of Appeal, but court records indicate no such action has been filed.
Dorsett’s diagnosis is the latest high-profile case linking America’s richest professional sports league to brain injuries that appear years after players retire. Since 2006, more than 3,500 former NFL athletes have filed workers’ compensation claims in California alleging head and brain injuries, The Times found. NFL teams routinely fight such claims, which can cost millions in cash awards and lifetime medical care. The league backed legislation signed last month by Gov. Jerry Brown that will bar many athletes from filing such claims in California.
The Times reports on one athlete with a brain injury claim who had previously won a workers’ compensation award in California, however, is Jimmie Giles, a pro-bowl tight end in the 1970s and 1980s with the Tampa Bay Buccaneers, among other teams. In 1991 Giles accepted a $75,000 settlement from five NFL teams for numerous orthopedic injuries to his back, wrist, ankles and knees among other parts – described in a medical report at the time as involving “virtually the entire musculoskeletal system.” Among the listed body parts was Giles’ head. Roughly five years ago, Giles, who turn 59 on Thursday, began complaining of memory loss and other problems and was eventually diagnosed with initial symptoms of dementia, which is progressing steadily. He filed a brain injury claim in California in 2010 and in late September, a workers’ compensation judge dismissed the claim. Like in Dorsett’s case, a workers’ compensation judge found that boilerplate language in the settlement precluded future injury claims. The document, in part, reads, “employee releases and forever discharges said employer from all claims or causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury.”
Los Angeles attorney Ron Feenberg, who is representing Giles, is appealing the decision according to the Times story. Neither Giles, “the defendants, medical science nor the law knew the existence of a relationship between high velocity bodily impacts and brain injury,” Feenberg wrote in the appeal, filed last month. He argues that the case draws strong parallels to asbestos-related claims because it take years for symptoms to surface. In some cases, workers exposed to asbestos had reached workers’ compensation settlements for asthma claims only to file asbestosis or mesothelioma claims decades later. The courts ultimately allowed those cases to proceed. “How can you release your right to a claim for a condition that hasn’t manifest itself?” Feenberg said. If Giles’ appeal is successful, it could open the door to many more claims from athletes who long ago accepted workers’ compensation awards only to develop serious brain disease years later.
Another of Feenberg’s clients, former Minnesota Viking linebacker Fred McNeill, was diagnosed with symptoms of CTE by the same group of UCLA researchers in January. McNeill has no prior workers’ compensation claims and Feenberg said a trial could begin by late January. Still, he worries about how to handle the case. McNeill, 61, has advanced cognitive dysfunction, Feenberg said, and had severe difficulties with memory and basic conversation. “I don’t even know if I can put McNeill on a witness stand,” Feenberg said.