Can an employer be subject to liability for multiple concussion injuries? And, what is a potential strategy for the employer to use?
Workers compensation payouts, loss of employee productivity and absenteeism from traumatic brain injuries are major concerns for employers and risk managers. Preventing workplace injuries and providing preventative health care benefits may reduce this loss to the employer.
Employers may be able to successfully challenge employees claiming workers compensation benefits for multiple concussion injury on causation grounds. For example, retired professional athletes who claim they are unable to work because of dementia due to repeat head trauma should expect to face employer arguments that the dementia may be caused by factors other than past repeated concussions, such as Alzheimers or other disorders. See: Michelle L. Modery, Injury Time-Out: Justifying Workers’ Compensation Awards to Retired Athletes With Concussion-Caused Dementia, 84 Temp. L. Rev. 247 (Fall 2011).
In a recent case involving a professional soccer player, however, the court agreed with the heavy weight of the expert medical testimony that the claimant’s disability was due to multiple concussion injuries that were causally related to his pre-injury employment. Because of these injuries, he could not return to employment as a professional soccer player and was entitled to workers compensation benefits. In the Matter of Josh M. Gros, Claimant v. D.C. United, and Great Divide Insurance Company, Employer/Carrier, 2010 WL 2379347 (D.C.Dept.Emp.Srvs. Mar. 10, 2010) (not designated for publication).
For the employer to be successful in litigation involving cumulative traumatic brain injuries, including Second Impact Syndrome and chronic traumatic encephalopathy (CTE), and avoid or limit workers compensation benefits, loss of productivity, or absenteeism, proof must be presented that:
- The multiple concussion injury did not occur in the course and scope of the employment but was outside the employment responsibilities
- The employee’s medical history indicates prior concussion injuries that did not occur in the course of the employment
- Objective diagnosis of the employee through CT Scan or MRI of the brain and neuropsychological testing resulted in inconclusive evidence of Second Impact Syndrome or CTE
- Discrediting of the subjective symptoms of CTE by demonstrating the employee was able to work, there were no lost work days, and the employee carried on daily life activities.
- The physician’s diagnosis was not correct and the treatment was improper
- Showing there was no recent accident or trauma that caused the symptoms
- Demonstrating other potential causes of the symptoms, such as long-time participation in contact sports outside the workplace
See Practice the Techniques - Checklists providing an example fact checklist tending to show liability for multiple concussion injury.