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CTE: What Lies Ahead for Workers’ Comp?

As CTE increasingly becomes an emerging issue for other professions, workers' comp stakeholders should start thinking about how to prepare for future CTE claims.
By: | November 1, 2017 • 5 min read

The summer of 2017 saw the first claims paid out to retired NFL players from the $1 billion settlement fund created in the wake of the class-action lawsuit brought by former athletes against the league. In the suit, retired players alleged that the NFL covered up evidence of the damaging neurological effects caused by repeated hits to the head.

At the root of that neurological damage lies Chronic Traumatic Encephalopathy, or CTE.

CTE may cause a host of cognitive and behavioral problems, including depression, aggression and violence, paranoia and impulse control, impaired judgment, confusion, progressive dementia, Parkinson’s and Alzheimer’s disease.

But those symptoms may not manifest until someone reaches their 40s or 50s. The brain damage can begin decades earlier and builds over time through repeated sub-concussive hits to the head. The type that linemen can sustain dozens of times within a single game.

Linking the symptoms to CTE is difficult, though, because the condition currently can only be diagnosed after death.

The NFL controversy might have swiveled the spotlight onto CTE and raised public awareness, but it has also raised questions and concerns in other industries. There’s no telling how many other professions are at risk of sustaining head trauma and developing the disease.

“As we learn more about CTE, it opens the door to other types of professions where it’s not an emerging issue yet because they are not as high-profile as professional sports,” said Danielle Jaffee, Manager of Government Affairs, IWP.

As research sheds more light on this neurodegenerative disease, proactive discussions about the risk of CTE can help the workers’ comp industry stay ahead of the curve.

Researchers Take on CTE

Danielle Jaffee, Manager of Government Affairs

The NFL settlement compensates former players experiencing CTE symptoms for medical testing and further care, but freed the NFL from admitting fault or disclosing what it knew and when about the link between repetitive head trauma and CTE.

But others are quickly filling in the gaps.

Boston University’s CTE Center has identified markers in brain tissue that indicate CTE, and researchers are moving toward the goal of developing a method to diagnose CTE in living people, as well as potential treatments. It draws on a bank of 425 donated brains, 270 of which have been diagnosed with CTE.

Other entities like the Brain Injury Research Institute and Stanford University are also studying ways to identify CTE in a living brain, and what sources and types of trauma may lead to degeneration of brain tissue.

But they remain a long way off from understanding how to diagnose or effectively treat the condition.

Workers’ Comp Implications

“We don’t yet have a test in place that could indicate if a living person has CTE,” said Jaffee. “And you can’t have a workers’ comp claim without a diagnosis. So while CTE hasn’t impacted our industry yet, it certainly has the potential to do so.”

The NFL lawsuit could provide a rough blueprint for how claims may be handled in the future, but challenges emerge in variations among states’ classification of professional athletes.

Many states bar professional athletes from filing workers’ comp claims or set caps on payout amounts, so claims filed in the NFL settlement won’t translate directly to a workers’ comp scenario.

“There are states like Kansas that define professional athletes as employees, but other states like Florida specifically exclude them. And then there are states that defer to labor union contracts,” Jaffee said. “If there were less restrictions on professional athletes, you might have greater likelihood of them filing claims.”

Thirty-eight former players involved in the NFL lawsuit did opt out of the settlement, preferring to pursue their own claims individually in state court.

“They’re trying to force the NFL to cover CTE as a workers’ comp claim, but the court system is slow and we haven’t seen yet how that will play out,” Jaffee said.

Even if the courts allow athletes to file a works’ comp claim, it’s uncertain whether they’ll recognize CTE as a compensable injury due to its cumulative nature. State laws again vary in whether cumulative trauma qualifies as a workers’ comp injury, and claimants will bear the burden of proving a direct link between their symptoms and their tenure as pro football players.

Despite these challenges, “I think a professional athlete making a workers’ comp claim for CTE is how we’re going to figure out how it works – if it works – and how we should respond as an industry,” Jaffee said.

Getting the Conversation Going

In the face of so many unanswered questions, how can stakeholders in the workers’ comp industry prepare for future CTE claims?

“At IWP, our goal is start a conversation around this topic with all stakeholders: the insurers who would cover claims, the PBMs that would handle the medications, the pharmacies and doctors treating the injury, and the legislators and policymakers crafting state law. Even the lawyers who could represent claimants, whether they are professional athletes or not,” Jaffee said.

“We’re trying to stay on top of things that will impact our industry and make sure that these discussions are happening now so that no one is caught off guard.”

It will take time for further research to illuminate the details of how CTE develops and progresses, and what could be done to treat the disease before it’s too late. But there is enough understanding to drive preventative measures and find ways to reduce repeated head trauma.

Even the NFL has encouraged safer tackling techniques and flag football as an alternative for younger players.

CTE might not have an impact on worker’s comp in the next year or even five years, but planning ahead will yield less confusion and better outcomes for providers, payers and claimants alike.

“Through these conversations, and as we learn more about CTE, we’ll be looking at our workers’ comp systems and questioning if those systems are the best avenue to handle these claims. And if not, do we need to figure out a better way?” Jaffee said.

“We’re here to start and facilitate that conversation so that states can effectively serve their communities in this area as it emerges.”

To learn more, visit https://www.iwpharmacy.com/.



This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with IWP. The editorial staff of Risk & Insurance had no role in its preparation.

IWP is a national home delivery pharmacy service working as an advocate for injured individuals. Fully licensed in 48 states, IWP enhances patient access and alleviates administrative and financial burdens.

Risk Report: Marine

Crewless Ships Raise Questions

Is a remote operator legally a master? New technology confounds old terms.
By: | March 5, 2018 • 6 min read

For many developers, the accelerating development of remote-controlled and autonomous ships represents what could be the dawn of a new era. For underwriters and brokers, however, such vessels could represent the end of thousands of years of maritime law and risk management.

Rod Johnson, director of marine risk management, RSA Global Risk

While crewless vessels have yet to breach commercial service, there are active testing programs. Most brokers and underwriters expect small-scale commercial operations to be feasible in a few years, but that outlook only considers technical feasibility. How such operations will be insured remains unclear.

“I have been giving this a great deal of thought, this sits on my desk every day,” said Rod Johnson, director of marine risk management, RSA Global Risk, a major UK underwriter. Johnson sits on the loss-prevention committee of the International Union of Maritime Insurers.

“The agreed uncertainty that underpins marine insurance is falling away, but we are pretending that it isn’t. The contractual framework is being made less relevant all the time.”

Defining Autonomous Vessels

Two types of crewless vessels are being contemplated. First up is a drone with no one on board but actively controlled by a human at a remote command post on land or even on another vessel.

While some debate whether the controllers of drone aircrafts are pilots or operators, the very real question yet to be addressed is if a vessel controller is legally a “master” under maritime law.


The other type of crewless vessel would be completely autonomous, with the onboard systems making decisions about navigation, weather and operations.

Advocates tout the benefits of larger cargo capacity without crew spaces, including radically different hull designs without decks people can walk on. Doubters note a crew can fix things at sea while a ship cannot.

Rolls-Royce is one of the major proponents and designers. The company tested a remote-controlled tug in Copenhagen in June 2017.

“We think the initial early adopters will be vessels operating on fixed routes within coastal waters under the jurisdiction of flag states,” the company said.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.”

Once autonomous ships are a reality, “the entire current legal framework for maritime law and insurance is done,” said Johnson. “The master has not been replaced; he is just gone. Commodity ships (bulk carriers) would be most amenable to that technology. I’m not overly bothered by fully automated ships, but I am extremely bothered by heavily automated ones.”

He cited two risks specifically: hacking and fire.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.” — Rolls-Royce Holdings study

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty, asked an even more existential question: “From an insurance standpoint, are we even still talking about a vessel as it is under law? Starting with the legal framework, the duty of a flag state is ‘manning of ships.’ What about the duty to render assistance? There cannot be insurance coverage of an illegal contract.”

Several sources noted that the technological development of crewless ships, while impressive, seems to be a solution in search of a problem. There is no known need in the market; no shippers, operators, owners or mariners advocate that crewless ships will solve their problems.

Kinsey takes umbrage at the suggestion that promotional material on crewless vessels cherry picks his company’s data, which found 75 percent to 90 percent of marine losses are caused by human error.


“Removing the humans from the vessels does not eliminate the human error. It just moves the human error from the helm to the coder. The reports on development by the companies with a vested interest [in crewless vessels] tend to read a lot like advertisements. The pressure for this is not coming from the end users.”

To be sure, Kinsey is a proponent of automation and technology when applied prudently, believing automation can make strides in areas of the supply chains. Much of the talk about automation is trying to bury the serious shortage of qualified crews. It also overshadows the very real potential for blockchain technology to overhaul the backend of marine insurance.

As a marine surveyor, Kinsey said he can go down to the wharf, inspect cranes, vessels and securements, and supervise loading and unloading — but he can’t inspect computer code or cyber security.

New Times, New Risks

In all fairness, insurance language has changed since the 17th century, especially as technology races ahead in the 21st.

“If you read any hull form, it’s practically Shakespearean,” said Stephen J. Harris, senior vice president of marine protection UK, Marsh. “The language is no longer fit for purpose. Our concern specifically to this topic is that the antiquated language talks about crew being on board. If they are not on board, do they still legally count as crew?”

Harris further questioned, “Under hull insurance, and provided that the ship owner has acted diligently, cover is extended to negligence of the master or crew. Does that still apply if the captain is not on board but sitting at a desk in an office?”

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty

Several sources noted that a few international organizations, notably the Comite Maritime International and the International Maritime Organization, “have been very active in asking the legal profession around the world about their thoughts. The interpretations vary greatly. The legal complications of crewless vessels are actually more complicated than the technology.”

For example, if the operational, insurance and regulatory entities in two countries agree on the voyage of a crewless vessel across the ocean, a mishap or storm could drive the vessel into port or on shore of a third country that does not recognize those agreements.

“What worries insurers is legal uncertainty,” said Harris.

“If an operator did everything fine but a system went down, then most likely the designer would be responsible. But even if a designer explicitly accepted responsibility, what matters would be the flag state’s law in international waters and the local state’s law in territorial waters.


“We see the way ahead for this technology as local and short-sea operations. The law has to catch up with the technology, and it is showing no signs of doing so.”

Thomas M. Boudreau, head of specialty insurance, The Hartford, suggested that remote ferry operations could be the most appropriate use: “They travel fixed routes, all within one country’s waters.”

There could also be environmental and operational benefits from using battery power rather than conventional fuels.

“In terms of underwriting, the burden would shift to the manufacturer and designer of the operating systems,” Boudreau added.

It may just be, he suggested, that crewless ships are merely replacing old risks with new ones. Crews can deal with small repairs, fires or leaks at sea, but small conditions such as those can go unchecked and endanger the whole ship and cargo.

“The cyber risk is also concerning. The vessel may be safe from physical piracy, but what about hacking?” &

Gregory DL Morris is an independent business journalist based in New York with 25 years’ experience in industry, energy, finance and transportation. He can be reached at [email protected]