A Former Minnesota Viking and California Lawyer Becomes A Star Client in Dementia Claims for Workers' Compensation
Fred McNeill's Toughest Game by Billy Blum in CALIFORNIA LAWYER
Fred McNeill walks slowly and speaks softly. Sometimes he's completely lucid, employing precise syntax and grammar. At other times he struggles to recall basic details about his life, like the ages of his sons or the fact that his license to practice law was temporarily suspended recently for nonpayment of bar dues. At age 58—slim and graying, his head framed by a pair of heavy glasses—McNeill still looks like an attorney. But he's also a retired pro football player. And that just may be the root cause of the memory loss, depression, and other symptoms of dementia that have haunted him, personally and professionally, for more than a decade.
I met McNeill and his wife, Tia, in October at the office of his attorney, Ronald Feenberg, a partner in the downtown Los Angeles firm of Rose, Klein & Marias—one of the oldest workers' compensation and personal injury firms in the state. Actually, McNeill was supposed to meet me there two weeks earlier but didn't show up—apparently, Feenberg says, because he was out in the city on his own and engaged in a superior court hearing to withdraw as counsel from one of his cases.
Last June, Feenberg filed an "application" (the workers' compensation equivalent of a complaint) on McNeill's behalf against the Minnesota Vikings, his former team and employer, claiming that McNeill's cognitive decline was the result of cumulative head trauma sustained in the National Football League. Two months later Feenberg filed against the Vikings's former insurance carriers.
McNeill's application was the third of seven (including one death claim) Feenberg has filed to date against NFL teams and their insurance carriers. Although former NFL players have an estimated 700 workers' comp cases on the books in California, most of the claims seek redress for orthopedic injuries. Feenberg's cases are thought to be the first based purely or primarily on dementia.
Of his seven dementia clients, Feenberg told me, only McNeill was still in the early phase of impairment and able to describe the damage that a career in football had wrought.
When I began my conversation with McNeill, it seemed to me that Feenberg had exaggerated his client's disability. Despite some hesitancy in speech, the Southern California native was personable, friendly, and good humored. I asked when and how he began to play football, and he answered with perfect clarity. "I was standing outside high school one afternoon talking with a group of guys," he told me, "and another group of guys walked by and said, 'Hey, we're off to play football, why don't you come along?' I did, and got started in Pop Warner," the youth football program. A few awkward moments ticked by before McNeill realized that the event had occurred when he was as young as nine.
I pressed ahead, inquiring about his subsequent gridiron development. Amid some clear recollections, McNeill couldn't remember the names of his head coaches at UCLA, the names of his college quarterbacks, or many of the teammates who played with him on the Vikings. But he did recall being selected in the first round of the 1974 NFL draft, and playing linebacker for the Vikings for twelve years, mostly as a starter.
McNeill appeared in two Super Bowls, famously blocking a punt in one. Along the way, he told me, he sustained at least a half-dozen concussions, first in college and then as a pro. Although the home games he played were in Minnesota, he was on the field in California for games against the San Francisco 49ers, the Oakland Raiders, the San Diego Chargers, and the Los Angeles Rams, before the Rams moved to St. Louis.
Like many players of his era, McNeill ignored the potential harm from repeated hits to the head. "I only missed one game—in college" due to a head injury, he said. "The emphasis back then for both the player and the team was to get back on the field as soon as possible." He continued, "I enjoyed the competition. Playing football was a great life. I got a $100,000 signing bonus, which was a lot of money at the time. But it's a violent game—you're trying to tackle someone, and they're trying to hit you as hard as they can and take you down." The danger was compounded, McNeill added, by players who took the game to "a violent and angry level, who looked like they were trying to hurt you."
Back then, that seemed to be a problem left on the field. After he retired in 1985, McNeill still had his wits about him, and it's still clear today that he is a highly intelligent man. At the urging of his mother and a former English teacher from Baldwin Park High School in Los Angeles, he enrolled in law school, graduating from William Mitchell College of Law in St. Paul, Minnesota. He passed both the Minnesota and California bar exams and embarked on what promised to be a long and successful legal career.
McNeill first opened a practice in Minneapolis, specializing in personal injury and, ironically, workers' compensation claims. "I was on a workers' comp panel and represented football players with claims against the Vikings," he said, often to the dismay of the team's management. With obvious pride, he recalled that they looked at him as some kind of turncoat. "I told them it was my job to look out for the players, not the team," he said.
After a long digression about his English teacher Ellen Genda, McNeill struggled to remember that he had begun his law studies at the University of La Verne, near Pomona, before transferring to William Mitchell. A lengthy aside followed about a recent encounter he'd had with a Vietnam veteran at a local sports bar. Only in hindsight did it become clear that McNeill intended the story to convey how fortunate he felt to have been drafted by the NFL and not by Uncle Sam.
It took Tia to bring McNeill back to the central narrative, interjecting that by the late 1990s life for their family started to change. Tia, who has a master's degree in organizational psychology and met McNeill during his ninth year with the Vikings, said her husband had developed problems with "executive" functioning. "He was such a nice guy that he'd take on just about anybody's case," Tia said. "But he often didn't get paid. His practice stopped moving forward. We would joke about him sitting around and shuffling papers."
At first Tia thought that McNeill was just stressed out and depressed. "And because he was depressed, I got depressed, and at times angry." Family life got bumpy, money got short, and Tia and the couple's two sons moved out to Los Angeles. McNeill eventually followed them; he got hired by a few law firms but "was let go," he said, "because my work was too slow."
Although the McNeills remain close and are still married, the couple began living separately in 2007. Since then, Fred has lived in an apartment with one of their sons.
At a social event in Los Angeles, Tia ran into a family friend who also happened to be a neurologist. The doctor "asked about Fred's odd gait," Tia said, and suggested that he get some medical attention. Last year her husband was diagnosed with early-onset dementia. "Looking back," Tia said with a hint of relief, "I know now what I was seeing all those years." Understanding his condition, she said, gave her a measure of comfort.
By contrast, McNeill has found little solace in his medical diagnosis. Like many high-caliber athletes, he is both proud and competitive, conditioned to overcoming obstacles and unwilling to accept decline or defeat. "I wanted to become an attorney," he told me almost with a sense of shame, noting that several other members of his family practice law. "It is very difficult for me to say, 'OK, I'm not going to be a lawyer.' People in my family and my friends look at me and ask, 'What's wrong with you? You're not supposed to be doing this.' I don't know if [the diagnosis] is comforting. But it's a reality."
MCNeill's diagnosis is a reality from a legal perspective, too, Ron Feenberg thinks—adding that he believes it will be recognized in due course as an injury covered by California's workers' compensation law. But accomplishing that, he admits, won't be easy or happen quickly.
Feenberg, 65, is silver-haired and somewhat soft around the middle. He would never be mistaken for a pro athlete, but he is an avid sports fan, with season tickets to the Los Angeles Lakers and Dodgers. Sports memorabilia—from photos and vintage posters to signed balls—crowd the shelves of his office. During his nearly 40 years as a workers' comp lawyer, Feenberg has worked on cases brought by former Los Angeles Laker Pat Riley, football and baseball star Bo Jackson, and Baltimore Colts defensive end Bubba Smith. Feenberg has also taught workers' comp law at the University of Southern California, UCLA, and Southwestern Law School, building a reputation as one of the field's top practitioners.
It was his reputation that attracted the families of clients showing signs of cumulative head injury. The first to contact him, in 2010, was Eleanor Perfetto, a pharmacist employed by Pfizer and married to former San Diego Chargers lineman Ralph Wenzel. (In October 2009, Perfetto, who has a PhD in public health, testified at the House Judiciary Committee's first oversight hearing on the legal issues pertaining to football head injuries.)
Subsequently, Feenberg agreed to represent former Oakland Raiders lineman Wayne Hawkins; tight end Dave Kocourek of the San Diego Chargers and Miami Dolphins; Jimmie Giles, formerly of the Tampa Bay Buccaneers; one-time Atlanta Falcons lineman Gregory Lens (now deceased); retired tight end Barry Brown of the New England Patriots; and McNeill.
"When it comes to workers' compensation," Feenberg says, "California is to some extent unique" for its generally favorable treatment of claims. Indeed, Labor Code section 3202 provides that the state's workers' comp system "shall be liberally construed by the courts with the purpose of extending ... benefits for the protection of persons injured in the course of their employment."
In some other states, he notes, the comp systems don't recognize cumulative trauma that involves repeated physical activities extending over a period of time. But California's does. (Cal. Labor Code §§ 5411 and 5412.) That's important for his clients, Feenberg believes, because "there is a latency period of many years between the events [the games and practices] and the manifestation of symptoms, followed by the onset of serious disabilities. There's a need in these types of claims to go back many years—to the 1960s, 1970s, and 1980s."
In some states the statute of limitations would be invoked to bar claims that are decades old. In California, claims must be brought within one year of the date of injury (Cal. Labor Code § 5405)—but the statute tolls unless and until employers have formally advised employees of the right to seek workers' compensation, and of the specific time limits that pertain to a particular injury. (See Cal. Labor Code § 5401; Reynolds v. WCAB, 12 Cal. 3d 726 (1974); and CIGA v. WCAB, 163 Cal. App. 4th 853 (2008).) Not until last July did the NFL put information about the perils of concussions in team locker rooms. Whether those posters will limit future liability for dementia claims by today's players remains to be seen.
But perhaps the greatest advantage offered by California's workers' comp system—making it a haven for retired NFL players—is that it allows a participant in a single game or practice in the state to pursue a cumulative injury claim, even if the rest of the player's career transpired elsewhere. (Cal. Labor Code § 3600.5.) "California cares about people who get hurt within its borders," Feenberg says. "People who sustain work-related injuries here—whether caused, aggravated, hastened, accelerated, or contributed to—have a right to file." (See "Fighting Over Jurisdiction," above.)
Of course, having the right to pursue a claim doesn't guarantee success. To prevail on the merits for his clients, Feenberg must prove by a preponderance of the evidence that the memory loss, depression, and dementia they suffer arose from their employment—and to the extent such conditions are deemed to be psychiatric, that football was the predominant cause. (Cal. Labor Code §§ 3600, 3202.5, 3208.3(b)(1).)
Many other workers' comp practitioners in California bring claims on behalf of retired players, including attorneys Ron Mix, a former San Diego Charger, and Mel Owens, a former Los Angeles Ram. But Feenberg says that thus far only he has filed a dementia claim. "We realize we're out in front on these cases," he says, noting that they involve more time and expense for tracking down old insurance carriers and obtaining dated medical records. And at least the first batch of such claims is likely to go to trial rather than settle, he anticipates.
"Still, we're very comfortable with our decision" to file them, Feenberg says, "principally because of our successes [with workers' comp claims] in asbestos litigation. There's the same need in that context to get old records, and the disease process involves a similar latency period." The tide finally turned for asbestos applicants, he says, when the law caught up to the medical science. He thinks the same thing will happen with concussion cases.
According to Feenberg, an "AVAlanche" of emerging science shows that his clients' symptoms stem from concussions and sub-concussions (blows producing no immediate cognitive symptoms) that they absorbed while playing professional football. Such symptoms, he believes, are produced by a neuropathological condition known as chronic traumatic encephalopathy (CTE), which is characterized by a buildup in certain areas of the brain of threads and tangles of tau, an abnormal protein that progressively disrupts and erodes brain functions.
First identified in the 1920s as a clinical condition seen in boxers, CTE was originally called dementia pugilistica, or punch-drunk syndrome. In the 1970s, researchers confirmed neuropathological findings of the condition through postmortem examinations of the brains of former boxers.
But does the same condition exist in former football players? The NFL has been studying the issue since at least 1994, when it formed the Mild Traumatic Brain Injury Committee, to advance medical and scientific understanding of concussions with the goal of enhancing players' safety. Almost from the outset, however, the committee came under fire: Not only did its chairman, the New York Jets' team physician, lack any prior experience with concussion research, but the panel also was decidedly slow to act.
The first of the committee's 13 research papers wasn't published until October 2003. Based on the results of a five-year survey, the report concluded—to no one's surprise—that helmet-to-helmet impacts at the average speed of 20.8 miles per hour can indeed produce concussions causing varying levels of impairment, including dizziness, headaches, and brief periods of memory loss. But crediting advances in helmet technology, the report noted no long-term brain injuries.
Another more controversial paper, published in January 2005, concluded that players who sustain multiple concussions suffer no more ill effects than players who experience just one. Expressing views that he continues to support, former committee co-chairman Dr. Ira Casson, a Long Island neurologist, determined there wasn't enough scientific evidence to establish a link between repeated blows to the head in football and long-term brain damage, dementia, or depression. Based on those findings, the league left it to each team to develop policies determining when a player who suffers a concussion can return to the field.
Over the same period, however, independent researchers were amassing evidence to support much different conclusions. A 2000 analysis funded by the NFL Players Association found that 60 percent of the nearly 1,100 retired players contacted had sustained at least one concussion during their careers, and 26 percent had experienced three or more. In 2002 Dr. Bennet Omalu, then a pathologist in Pittsburgh and now the chief medical examiner for San Joaquin County, performed an autopsy on former Pittsburgh Steelers center Mike Webster, who had died suddenly at age 50 after reportedly suffering bouts of depression, mood disorders, and dementia. Omalu discovered the presence of CTE in Webster's brain, and later he made similar discoveries in the brains of other deceased players.
Studies documenting long-term damage from head trauma kept coming—from the University of North Carolina in 2003 and 2005, and from the University of Michigan in 2009. The most significant research was conducted by the Center for the Study of Traumatic Encephalopathy (CSTE) in Boston. Formed in 2008 as a joint project of the nonprofit Sports Legacy Institute and the Boston University School of Medicine, the center brought together experts in the fields of neurology, neurosurgery, and pathology. By the fall of 2009 its researchers had confirmed the presence of tau proteins in the brains of at least eleven deceased football players on whom they had performed postmortem tissue analyses.
Congress, too, began investigating the effects of football-related head trauma. A House Judiciary subcommittee opened hearings in June 2007 on the social and economic conditions of retired players, followed by more extensive hearings on football head injuries by the full committee in October 2009 and January 2010. Finally, as the critics became more vocal and public reaction to video clips showing brutal on-field collisions turned negative, the NFL responded.
As part of its 2006 collective bargaining agreement with the NFL Players Association, the league had increased pension benefits by 10 percent, to $255 per month times the number of credited seasons for players who retired between 1982 and 1992, and $250 per month for those who retired earlier. (Retired players have nonvoting membership status in the association.)
That same contract offered a variety of noncash upgrades as well, including creation of the "88 Plan"—named after the jersey number of former Baltimore Colts tight end John Mackey—to provide in-home care for up to $50,000 a year or assisted-living benefits up to $88,000 annually for former players diagnosed with dementia. The plan does not require retirees to prove that their condition resulted from football-related head trauma. Funded by the league's 32 clubs, it has released more than $7 million in benefits to date. But to qualify for either retirement or 88 Plan benefits, players must be vested under the collective bargaining agreement by playing a minimum number of NFL seasons: For those who left the game after 1973 but before 1992, that means at least four; after 1992, just three seasons are required.
The NFL made an important policy shift in August 2007, imposing a league-wide standard that prohibits players rendered unconscious from returning to the game in which they are injured. Two years later, the NFL revised the policy: A player removed unconscious from a game or practice may not return until fully asymptomatic both at rest and in exertion, and until he has a normal neurological exam and is cleared to play by both his team physician and by an independent neurological consultant.
Last March the NFL reconstituted its concussion committee, replacing the chairman and—to underscore its heightened concern—renaming it the Head, Neck and Spine Medical Committee. Shortly afterward, the league agreed to donate $1 million to the CSTE in Boston to help fund its research on head injuries.
With the NFL making ON-FIELD policy changes and increasing benefits for former players, it might seem that all Feenberg has left to do is present expert testimony in the cases he tries. "I would expect that many experts from the East Coast may come out to testify," Feenberg says. He acknowledges that the initial trials may be long and drawn out—administrative hearings in the workers' comp system must be scheduled weeks and months apart—but he expects that his clients will prevail.
Members of the workers' comp defense bar, however, aren't so sure. "Despite all the studies, the medical science is still in its infancy," says John Floyd, a name partner at Oakland's Floyd, Skeren & Kelly who has represented NFL teams in California cases for more than a decade. "Given the microscopic pathology involved, it is impossible to diagnose CTE without the benefit of an autopsy. Brain imaging, PET scans, and MRIs can't distinguish one kind of dementia from another, let alone tell us when or how a given player's trauma occurred."
More important, some of those East Coast experts Feenberg is counting on share Floyd's viewpoint. "I could not say in any particular case that CTE can be diagnosed in a living patient," Dr. Robert Stern, the CSTE's codirector and an associate professor of neurology at the Boston University Medical School, said in an interview. He cautions, "Because of the dramatic increase in the awareness of concussions over the past ten years, people think we're further along than we actually are." The research center continues to refine its medical-imaging techniques and strives to develop a verifiable clinical profile of chronic traumatic encephalopathy and the dementia it causes, but Stern maintains that presently it can only be diagnosed after death.
Stern's views are shared by Dr. Mitchel Berger, head of the neurosurgery department at the UC San Francisco Medical Center, who was recently named to head a subpanel of the NFL's Head, Neck and Spine committee. Berger emphasizes that this season the league increased both fines and suspensions for players who make flagrant head-to-head hits. But he cautions that dementia and depression among former players may have numerous causes, ranging from drug and alcohol abuse, thyroid irregularities, and sleep apnea to Alzheimer's disease. "Very few football players have been diagnosed with CTE, even postmortem," Berger says. "There are many former players in their fifties, sixties, and seventies without dementia. We simply don't know yet how many concussions and sub-concussions lead to the condition."
Feenberg says he isn't troubled by such doubts and qualifications about the etiology of CTE. "If I file a claim, you can be pretty certain that I reviewed the records of the client's treating doctors," he says. He also takes a detailed social and family history to rule out other sources of dementia. And in any case, Feenberg stresses, workers' compensation is a no-fault system: NFL teams can't argue that his clients assumed the risk inherent in playing a dangerous sport. "No matter what," he says, "I'm not backing down."
If Feenberg succeeds with his clients' dementia claims, the potential payouts in the cases would be considerable. He estimates a courtroom victory before an administrative law judge could surpass $100,000 for disability compensation, plus $1 million or more for lifetime medical care, depending on the degree of expected dementia. "Assisted-living costs alone could be over $100,000 a year," he says. Those numbers take on added importance for older retirees, because they receive no basic medical insurance from the NFL. Vested players retiring from 2002 onward receive only four or five years' insurance coverage.
Fred McNeill was approved last summer for in-home help under the 88 Plan and, according to Tia, stands to collect a monthly pension of about $2,000. Any workers' comp benefits Feenberg may win for him would go a long way toward providing lifetime security.
Still, McNeill says, he's in the workers' comp case mostly to help make a point. "I think everyone-especially young kids—should be coached to not have as one of their goals to hurt other players," he says, especially by using their heads as weapons. At our interview, McNeill crouched in the "ready" stance of a linebacker and asked me to play a downfield blocker for the opposing team. "I developed a way to drive my hands into the chest of another player to take him down," he says, demonstrating an alternative to head-to-head contact by pushing me backward with mock force.
Clearly, McNeill has given the issue of safety a good deal of thought. Others have suggested a variety of measures that could make the game less dangerous: reducing the number of contact drills during practice, altering the linemen's three-point stance, removing face guards from helmets—or even eliminating helmets altogether.
But in the end, football is a fundamentally violent game that American fans love. If the sport's unflagging popularity is any indication, few of its followers will want the rules altered significantly. What remains to be seen is whether players like Fred McNeill will continue to accept the damage to their bodies—and whether team owners will be forced to compensate them for cumulative injuries.