California: An Open Door for Injured Jocks, Part Two

April 19th, 2010 by

We recently blogged California’s open door policy on comp claims for professional athletes based in other states. Most of the claims involve orthopedic injuries. Today we examine a claim for coverage of brain injuries – specifically, dementia. This one might blow California’s doors right off the hinges.
Ralph Wenzel toiled in the trenches for the Pittsburgh Steelers and the San Diego Chargers from 1966 to 1973. After retiring from the NFL, Wenzel coached for a number of years. In his mid-50s, he began suffering from dementia-like symptoms. Now, at age 67, he is institutionalized with full-blown dementia. He is no longer able to communicate.
Wenzel’s wife, Dr. Eleanor Perfetto, has filed a claim under the California workers comp system, contending that the dementia was the result of Wenzel’s football career. (At 6’2″ and 250 pounds, he was somewhat undersized for a lineman.)
“Absolutely, this was work-related for Ralph,” Dr. Perfetto said. Given that the NFL has toughened its stance on post-concussion activity for active players, the medical evidence is certainly leaning in what now appears to be a rather obvious direction: constantly banging your head in the course of work leads to mental impairment, up to and including dementia.
There is a lot of money at stake. California law requires that the employer or insurer pay not only all current and future medical costs associated with the injury, but also all the incurred costs. Wenzel’s institutionalization, going back to 2006, runs about $100,000 a year. If deemed compensable as workers comp, his claim will run into the millions.
88 Hike?
Dr. Perfetto is not without resources in caring for her husband. He is eligible for beneifts under the NFL’s 88 Plan, which reimburses up to $88,000 per year in medical costs for former players with dementia. [There does seem to be a presumption of work-relatedness for dementia in the very creation of such a fund.] The 88 Plan, plus Dr. Perfetto’s health plan through her employer, pretty much cover the costs of Wenzel’s care. Dr. Perfetto, however, wants to open doors for families who do not qualify for the 88 plan, which is limited to players with at least 4 years in the league.
[A question for no one in particular: If dementia is determined to be a work-related condition, could the health insurer invoke the “exclusive remedy” provisions of workers comp and refuse to pay for treatment?]
There are a number of parties very interested in the outcome of this case: not just the self-insured team owners and insurance companies, who are confronted with huge (and retroactive) liabilities, but the federal government itself, which would welcome an opportunity to shift the formidable costs of caring for patients with dementia out of the social security system and into the private sector.
If Dr. Perfetto succeeds, it will be interesting to see who becomes the first payer: 88 Plan or workers comp. As is usually the case, there will be winners and losers. For poor Ralph Wenzel, however, winning and losing – once the paramount goal of his existence – no longer matters at all. It’s probably impossible to say what does matter to this once handsome warrior, who has paid a dreadful price for the all-too-brief glory of his seven years in professional football.