A lawsuit by a concussion-plagued former NFL player who is suing his insurance company after being thwarted in his attempt to collect on a policy for a career-ending injury could shape how such policies deal in the future with brain injuries suffered by football players, experts said.
Haruki Nakamura, a safety who played five seasons for the Baltimore Ravens and Carolina Panthers, filed the lawsuit last Monday in North Carolina after Lloyd’s of London and its underwriters denied his bid to collect on his $1 million policy, according to the lawsuit. Nakamura, 30, suffered what his lawsuit calls a career-ending concussion while playing for the Panthers in a preseason game against the Pittsburgh Steelers in August 2013.
“I think it has the potential to be very significant with respect to how players are able to secure these policies and how the insurers treat these policies on the front end,” said Gabriel Feldman, the director of the sports law program at Tulane University.
“It presents a lot of different scenarios for actuarial calculations and risk management. It threatens another avenue for NFL players to be able to protect themselves as it becomes increasingly clear that playing football presents some level of risk to the brain over time for a growing number of players. Players are recognizing that risk and some are retiring earlier. Some are taking other precautions.”
Nakamura’s attorney, John Schryber, said the case represents the first time that he has dealt with an insurer that “refused to pay where the team, the NFL and an independent medical examiner have all agreed that the player’s injury is career-ending.”
Schryber, a D.C.-based partner at the firm Reed Smith whose insurance recovery practice includes recovering for professional athletes under their disability policies, said that might be due to the nature of the condition, post-concussion syndrome.
“Our prior cases, where we have recovered without resort to litigation, were for injuries other than concussions,” Schryber said via e-mail. He said that concussions “may become the leading career-ending injury” for football players, adding that “for a disability insurer to deny coverage for damage caused by a concussion would be like the issuer of a homeowner’s policy denying coverage for damage caused by a fire.”
Nakamura is seeking $3 million, triple the value of his insurance policy against a career-ending injury, in the lawsuit to cover damages, costs, attorney fees and interest.
According to the lawsuit, Nakamura suffered a hit to the head while making a tackle during the Aug. 29, 2013, exhibition game. He was removed from the game and diagnosed with a concussion. Nakamura was placed on the injured reserve list and was released by the Panthers with a settlement due to “concussion,” according to the lawsuit. The lawsuit says that Nakamura’s post-concussion symptoms worsened in the following weeks and months and he “experienced headaches, impaired cognition, visual changes, fatigue, depression, and suicidal ideation.”
Specialist Michael Collins of the University of Pittsburgh Medical Center determined Nakamura to be “permanently disabled” due to post-concussion syndrome with the likelihood of “no hope of improvement sufficient” to return to football, the lawsuit says. According to the lawsuit, in late 2015 the retirement board of the Bert Bell-Pete Rozelle NFL Player Retirement Plan awarded Nakamura total and permanent disability benefits based on neurological findings that he was totally and permanently disabled due to chronic post-concussion syndrome.
But Nakamura was unable to collect on his insurance policy for a career-ending injury, with the lawsuit saying that insurance underwriters subjected Nakamura to “voluminous” paperwork and delays while investigating and then denying his claim. Nakamura was not allowed to have an advocate accompany him to an examination by a medical expert selected by the insurer, according to the lawsuit, and the insurance underwriters denied the claim based on the findings of that examination.
According to Nakamura’s lawsuit, the denial called into question whether Nakamura was suffering from post-concussion syndrome; whether, if he was suffering from it, it was solely attributable to the injury he suffered during the Aug. 29, 2013, preseason game; and whether he could return to the NFL.
Attempts to reach executives at one of the underwriters listed as handling Nakamura’s case for comment were unsuccessful.
“These are complicated issues,” Feldman said in a phone interview. “Did the head injury cause the player to no longer be able to play football? That can be a murkier question than it is with a knee injury or another injury. You’re talking about symptoms. You don’t have an X-ray that shows a broken leg. There are also causation issues. How do you prove it’s the hit that you took in an NFL game and not the 1,000 hits that you took in college?”
The lawsuit brought by Nakamura, first reported this past week by the New York Times, comes months after a federal appeals court affirmed the approximately $1 billion settlement between the NFL and former players who’d sued over issues related to brain injuries.
The resolution of Nakamura’s lawsuit potentially could affect how much insurers charge football players going forward for policies guarding against career-ending injuries, and whether concussions might be included in such policies or excluded from them.
“Certainly the outcome could impact the cost of these policies and how they’re written,” Feldman said. “This may be a preview of things to come. This affects another layer of the protection for these athletes who have such frighteningly short careers.”