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Tuesday, August 9, 2016

Suit by Former NFL Player Highlights Difficulty of Proving Disability from Brain Injuries

Qualifying for disability payments because of a head trauma has always presented challenges. Brain injuries are often invisible and it can be difficult to obtain objective proof of a disability. Insurers seem especially reluctant to acknowledge the seriousness of medical complaints when the brain is involved.

Insurer Accused of Deliberately Creating Burdensome Requirements to Avoid Paying Claims

A recent lawsuit over disability benefits by Haruki Nakamura, a former professional football player, vividly illustrates the problem. Once an NFL defensive back, Nakamura has sued Lloyd’s of London, accusing the insurer of subjecting him to impossible red tape in an effort to avoid making payments on his $1 million policy. He is seeking triple that amount to cover attorneys’ fees, damages and other costs.

Insurer's Doctor Tries to Downplay Seriousness of Concussion

In court documents, the plaintiff accuses the insurer of not allowing him to bring an advocate to his examination. It also says the insurer told Nakamura that he could keep playing football, even while warning him of the long-term impact of concussions.

Lloyds claimed that the plaintiff had not shown that his concussion “solely and independently” caused his disability and they downplayed the injury as "minor," accusing the football player of exaggerating his symptoms.

The NFL backs up the plaintiff's claim that he is unfit to return to football.

Symptoms, Though Hard to Prove Objectively, Are Real

With some injuries, such as a muscle or tendon tear, it can be crystal clear whether an injured player can return to the field. With head injuries, disabilities are harder to prove with a simple test or scan. Symptoms may involve fatigue, mood swings, headaches, vision problems, and other subtle changes. Though often hard to describe, these problems are real and can make demanding work impossible.

The plaintiff's wife said her husband's entire personality has changed, and they have made more than 50 doctor's visits since 2013. That, combined with Lloyd's of London's refusal to pay his claim, has compounded his difficulties.

New Understanding of Head Trauma Makes Old Policies More Costly for Insurers

Many policies such as the one in this case date back to a time when insurers were less aware of the serious and lasting consequences of concussions, including such problems as  "chronic traumatic encephalopathy" or "CTE.” The suit against Lloyd's is an important test of whether insurers may have to pay more claims now that research shows long-term problems associated with head trauma. More players may decide to file claims, and insurers may feel pressure to fight them, charge higher premiums, or exclude concussions from their policies.

Getting a recalcitrant insurer to acknowledge the legitimacy of a brain injury can be an uphill battle. If you are suffering from any disability, subtle or obvious, an experienced disability lawyer can help you put you on an equal footing with insurers and enable you to obtain the coverage to which you are entitled.


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