Posted on 08 Apr 2010
As workers' compensation lawyers go, Ron Mix and Mel Owens understand their clients’ problems better than most.
While Mix was a Hall of Fame lineman with the San Diego Chargers in the 1960s, he played the same brutal game that has left his contemporaries experiencing early-onset dementia at a rate several times that of the national population. Owens, a starting linebacker for the Los Angeles Rams in the 1980s, belonged to an era whose players can only wonder if their fate will be similar or worse.
Mix and Owens have leveraged their connections to represent about 1,000 retired players in the workers’ compensation system of California, the only jurisdiction that allows long-retired professional athletes to pursue workers’ compensation for cumulative injuries, even if they played only one game in the state in their careers. Their clients have received awards that probably total more than $100 million.
What their clients seldom receive, however, is the lifetime medical care and security for which workers’ compensation is primarily designed. More than 90 percent of the players represented by Mix and Owens forgo the extremely likely prospect of lifetime medical care for their football injuries by taking lump-sum settlements.
A paradox has developed. Many retired players consider Owens and Mix heroes among their own for essentially finding cash under a mattress; others see an assembly-line process in which players do not fully understand the implications of the settlements, particularly given the mounting knowledge and remaining unknowns regarding the long-term effects of football brain trauma.
“We’re all creatures of the immediate, and, if someone has an immediate need, they figure they’ll just have to take their chances,” said Mix, who is based in San Diego. Owens said about 75 percent of his clients report some sort of work-related brain injury when they file, and still they surrender future medical care.
“What I think is wise versus what he thinks is wise is irrelevant,” said Owens, a partner in the firm Namanny, Byrne & Owens in Laguna Hills, Calif. “Because he thinks he’s making a good decision. Might be.”
The California workers’ compensation system emerged from the shadows on Monday when Eleanor Perfetto, the wife of Ralph Wenzel, a 67-year-old former player with early-onset dementia, filed a claim that is a test case in considering National Football League teams’ liability for the cognitive decline experienced by retired players. Until this week, claims filed by former players had focused only on orthopedic injuries. Experts in workers’ compensation said the Wenzel claim could allow dozens of retirees with dementia to win coverage from the teams and their insurance companies for the high cost of assisted living facilities and related medical care.
When players retire as relatively young men, they do not receive long-term medical coverage from the N.F.L. Thus, given the staggering medical costs that await them and their well-chronicled struggles to receive assistance from the N.F.L.’s disability plan, California’s unique access to lifetime medical care for their many on-field injuries would appear to be a godsend.
But a vast majority of them — regardless of lawyer — have accepted an extra $60,000 to $100,000 to settle their claim to medical coverage. Not only did they give up a safety net for shoulder surgeries and hip replacements that many will need at some point, but they also indemnified the insurance companies against any benefit Perfetto’s claim may open for cognitive care for those who did not settle.
One of the players who chose to settle was Jeff Smith, a lineman for the Kansas City Chiefs and the Jacksonville Jaguars from 1997 to 2001. At 36, knowing he had a broken bone in his back, degenerative conditions in his hips, shoulders and ankles, and a troublesome short-term memory, Smith took an easy payment of $203,500 in September.
“What I settled for is probably minuscule compared to the medical bills I’ll have the rest of my life — I just settled because I thought it was a fair number,” Smith said by telephone from his home in Knoxville, Tenn. He added: “It probably was a mistake that I made. I’m not a lawyer.”
Interviews with dozens of retirees — young and old, wealthy and struggling — indicate that Smith is by no means alone in not fully understanding the workers’ compensation process. A client of Owens’s firm, Smith said he was under the impression that he “did not have the option for lifetime medical.” He added: “It was not a clear-set option. It was a gamble to try to get it.”
Smith also feared that a jury would resent a professional athlete who made more than $1 million playing football pursuing a workers’ compensation claim.
But workers’ compensation trials are before an administrative judge, not a jury. And as long as no procedural issue arises during trial — which is extremely rare once an insurance company offers six figures to settle — the one certainty that does exist, most lawyers interviewed said, is the award of lifetime medical care for legitimate injuries. Beyond that, players usually get a permanent disability award of about $40,000 to $100,000 paid over about six years.
“It isn’t a question of if — it’s how much,” said Tony Baroldi, who represents several insurance companies who cover N.F.L. teams in hundreds of athlete cases a year.
Owens said that neither he nor anyone else from his firm would have told Smith that players face a jury. He said that turning down a settlement and going to trial involves inherent gamble.
“You can’t guarantee anything — there’s always a risk of going to trial,” Owens said. “I know the way players think. I played the game.”
Clyde Simmons, the former All-Pro defensive lineman for the Philadelphia Eagles who played for four other teams during a career that lasted from 1986 to 2000, accepted $220,000 to settle his claim in 2008 (tax-free, like all workers’ comp awards). Simmons has since spent most of it on nonmedical needs for his family, he said. His health insurance recently lapsed and he began tapping into his retirement savings to pay $1,500 a month for coverage.
“My future thoughts were I’ll have to worry about that then,” Simmons said of his workers’ compensation decision. “There weren’t second thoughts. I had to get through now.”
Simmons’s lawyer was Modesto Diaz, who, unlike Owens and Mix, did not play professional football but remains a prominent workers’ compensation lawyer for former players. This is largely because he serves on the nationwide panel of lawyers that the players union recommends to retired veterans, with the understanding that he must strongly discourage the selling of medical rights. And still, Diaz, who is known as Doc, said, “I’d say that 75 percent of them still take the money upfront.”
Lawyers are paid far more for settlements than for the retention of medical care. California state fee structures allow lawyers to charge up to 18 percent of any upfront or deferred cash award; they receive no portion of the value of future medical care. So whereas a player’s typical $80,000 award with future medical would net a lawyer a $14,400 fee, settling the case before the rigors of a trial for $150,000 nets the lawyer $27,000.
“If you’re the applicant attorney, you get twice as much for half as much work,” said one insurance company lawyer who declined to be identified because he still represents teams. “The insurance companies want to settle the claims, too, to get them off the books. The only party who doesn’t really benefit from a settlement is usually the player.”
Mix and Owens declined to discuss their fees in interviews; records of dozens of settlements indicate that they almost always charge the maximum 18 percent, which requires a judge’s approval. Mix and Owens emphasized that they advise clients to keep their medical care open, but each cited some dissuading factors: Mix said trial awards were often delayed up to a year on appeal, while Owens pointed out the difficulty some players experience in actually getting insurance carriers to pay for medical treatments.
Mix said he has noticed that given the recent publicity afforded the long-term effects of football head trauma, insurance companies are offering slightly more to settle cases. And still, he said, players agree to amounts that are questionable, often against his advice.
“I still don’t feel we’re getting the full value,” Mix said. He added later, “I think the insurance companies, any settlement they can make is a good settlement for them. That doesn’t mean it’s a bad settlement for the athlete at that particular time. But it’s generally undervalued because of the potential of the head problems.”
One of the relatively few players to avoid the temptation to settle was Terrell Buckley, the former star defensive back who played primarily for the Green Bay Packers and the Miami Dolphins and retired in 2005. Buckley testified in his workers’ compensation deposition in March 2009 that, beyond many orthopedic issues, he experiences painful headaches and short-term memory loss. He turned down the insurance company’s settlement offers — in part, he said, because of the unanswered questions surrounding the long-term effects of football head injuries.
“You see what’s happening to some guys, and it’s pretty scary,” said Buckley, now a strength and conditioning coach for his old college program at Florida State. “I pray and hope that I’ll never have to use it for that, but it’ll be there.”
Baroldi said that getting pro football players to take settlements — known as C&R agreements, for Compromise and Release — is quite easy. Because many players retain their on-field bravado toward ignoring pain and medical problems, Baroldi said, their decisions can be myopic.
“If it was me, and I had a work injury, no matter what part of the body it is, if it was a broken fingernail, I would never C&R it — never,” Baroldi said. Asked whether he ever considered saying that during negotiations, he added: “No, I’ve got my job and they’ve got their job. I’m not going to jump up and say, ‘Are you nuts?’ ”
Norman Delaterre, a workers’ compensation judge in Santa Ana, Calif., said that, by law, judges must consider whether settlements are in a reasonable range based on the evidence presented by doctors. He said he has found football players’ settlements to fit that qualification, although he has wondered how well some players have considered the ramifications.
“These players are represented by experienced, competent attorneys — the players themselves, they’re adults,” Delaterre said. “Presumably they’ve discussed the ramifications of the various types of settlements with their attorneys, and they’ve come to a decision to accept the lump sum. Even though the judge in the back of his mind is thinking, You know, if it were me, maybe I wouldn’t do this.”
Dick Berthelsen, general counsel of the players union, declined to comment on Mix and Owens specifically. He said the union’s annual gathering of recommended workers’ compensation panel lawyers on April 16 — which the two former players will not attend — would once again reassert the union’s recommendation that future medical care be left open, particularly in light of recent discoveries regarding the effects of head injuries.
“In terms of concussions, that’s going to be one of our prime focuses this year,” Berthelsen said.
If the approach to workers’ compensation changes in the future, either through the dementia claim regarding Ralph Wenzel or any adjustments by lawyers, Jeff Smith will not benefit. He said that he is comfortable with the $203,500 he got, and that his lawyer, Owens, whom he chose in part because of his own playing background, did not mislead him.
“They have a business to do this — they help players get money,” Smith said of Owens and Mix. “And the players help them get money too. It’s a game. Just like football.”