The NFL, Apportionment and Substantial Evidence

It's playoff season in the National Football League so it is only fitting that we get workers' compensation news concerning professional football claims.

In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.

The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.

The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.

The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.

The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.

But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.

The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:

"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."

Here's my take-aways from this case:

1. The "good old days" of "expert opinion" are gone - medical opinion must be supported by both fact and science. Just saying it is, because one is an expert, doesn't make it so. If the Raider's QME was apportioning to other exposure then there needs to be supporting evidence upon which to base that opinion and in this case just dividing up the liability without some evidence in the record that indicates an exposure is not substantial evidence. We see this all the time.
2. When you don't have substantial evidence to support your case, and the other side has better evidence (remember that substantial evidence is evidence that is "good enough"), then there should be an attempt to challenge that evidence. In this case, either get a change in opinion that supports apportionment or disqualifies the opinion completely so you can start over.
3. Professional football is brutal and the players come out of their careers with significant injuries and disabilities. workers compensation, work comp, injured worker