New Medical Study Connecting CTE to Sports Concussion

By Arthur D. Leritz, Attorney at Law

The law firm of Adler Giersch has been at the forefront of brain injury awareness and advocacy for many years with its founding partner, Richard H. Adler, as a local and national advocate for safety in youth sports.  He drafted legislation and organized a strong local coalition of doctors, sports organizations, insurers, and many others that led to the Zackary Lystedt Law, named after his client, the nation’s very first law designed to prevent traumatic brain injuries in student athletes by requiring school districts and nonprofit organizations using school facilities to adopt policies for management of concussion and head injury in youth sports.   Following the passage of Washington’s Lystedt Law, every state followed its core principles and now all 50 states have a mandatory removal and managed return to play protocol in place that is aimed at protecting youth athletes from sustaining life threatening head injuries while playing sports.

A recent medical study published in in the Journal of the American Medical Association (JAMA) shows that there remains ongoing need for awareness, education, implementation and enforcement of player safety to prevent traumatic brain injuries from youth sports to professional athletes.

On the professional sports level, the recent study looked at the brains donated for research by former NFL greats such as Hall of Famer Ken Stabler to journeyman lineman. We have all heard about Tiaina “Junior” Seau, former linebacker for the San Diego Chargers, Miami Dolphins, and the New England Patriots, who died May 2, 2012, from a self-inflicted gunshot to the chest.  Not to mention Terry Long, Andre Waters, Shane Dronett, David Duerson, and Ray Easterling, all of whom also ended their own lives.  Most recently, there was 31 year old wide receiver James Hardy, who died June 7, 2017, when he drowned in a river.   Hardy was a second round pick for the Buffalo Bills in 2008.  His death was recently ruled a suicide.[1]  While it has yet to be determined if Hardy had CTE, what is true for all the other athletes above is that autopsies confirmed the presence of CTE in every one of them.

Chronic traumatic encephalopathy (CTE) is a progressive neurodegenerative disease that has often been associated with repetitive blows to the head.  Early symptoms can be mild disorientation and headaches and progress to memory loss, erratic behavior, dementia, depression, and thoughts of suicide.  While this was commonly associated with boxing initially, research is showing that this is not just boxing but also football and other sports as well.

The new study published in JAMA suggest that participation in football may be related to the development of CTE.[2]  The researchers examined 202 brains of former deceased football players.  What they found was the presence of CTE in 177 players, or 87% of those studied.[3]  Of those studied, researchers found the most common cause of death for participants with mild CTE pathology was suicide (27%) and for those with severe CTE pathology was neurodegenerative (47%).    The study also found that cognitive problems were common in those diagnosed with CTE, with symptoms occurring in 85% of the mild cases and 95% in the severe cases.  Language and visuospatial symptoms occurred in 66 of the mild cases and 54% in severe cases.[4]

The donors to the brain bank program were primarily college and professional level players, even though there are many more players who only played on youth or high school teams.  Particularly noteworthy is that the severity of CTE pathology was distributed across the highest level of play from high school to professional players. All former high school players involved in the study had some level of CTE pathology, and the majority of former college (56%), semiprofessional (56%), Canadian Football League (86%), and NFL (86%) players had severe pathology.[5]

This study is important as it continues the public’s discussion about traumatic brain injury and roads that can lead to prevention and safety. Sports related head trauma is one cause of neuro-cognitive changes but so are other causes such as falls, motor vehicle crashes, bicycle, and pedestrian mishaps. It is clear from this study and others that rule changes are needed to make football and other sports that are known to cause brain injuries, such as girls’ soccer, more safe. The problem of brain damage showing up in NFL players later in life begins with youth sports.  This is why parents, athletes, coaches, and school administrators need to more fully embrace and enforce the core principles of Washington’s Lystedt Law.

 


[1] As reported in USA Today, July 19, 2017.

[2] Mez et al., “Clinical Evaluation of Chronic Traumatic Encephalopathy in Players of American Football,” JAMA. July 25, 2017;318(4):360-370. doi:10.1001/jama.2017.8334

[3] Ibid.

[4] Ibid

[5] Ibid.

Cold, Hard Math: The Rise of Artificial Intelligence in Insurance Claims Handling

By Steven J. Anglés, Attorney at Law

Recovering from a traumatic injury is often a slow process that unfolds in ways patients often can’t anticipate. The full extent of an injury, or the effectiveness of treatment might not be fully known for a long period of time, and only after the patient’s life has seen a roller coaster of personal and professional changes. The same can be said of navigating the insurance claims process. Coordinating insurance benefits, interpreting insurance contracts, and hoping for the end of health care, returning to full activities, and trying to find closure in an ongoing insurance claim can take years and test the patience of even the most reasonable people.

Recent technological changes are attempting to take all of these human variables and generate insurance claim outcomes in seconds, without involving humans at all. Over the past decades, insurance adjusters have increasingly used computer programs to settle personal injury claims in an attempt to save money and increase the speed of the claims process. But, the latest attempts to automate the claims process have gone much further by eliminating the need for claims adjusters through the use of artificial intelligence[1]. While this may seem like a reasonable approach for both insurance companies and patients, the use of artificial intelligence is likely to result in an extremely one-sided and arbitrary claims handling process that will undoubtedly reduce costs for insurance companies, while leaving injured patients with claims that aren’t evaluated in a meaningful way, or a way that fully takes into account how humans would respond to such a claim to resolve it.

In May of 2017, Zürich Insurance announced it was deploying artificial intelligence to evaluate personal injury claims after testing showed claims processing could take years’ worth of information and reduce it to a single decision in a matter of seconds. Insurance companies in Japan and Great Britain have begun doing the same, replacing staff members with sophisticated computer algorithms to perform the work previously done by humans.[2]  Computers using artificial intelligence, such as IBM’s “Watson” will be capable of reading medical documentation in order to collect information necessary for paying medical bills using factors such as medical histories, length of hospital stays, and surgical procedure names.  Cognitive technology could be used to review medical reports for evaluating personal injury claims-reducing review time of 10-100 page documents from 58 minutes down to five seconds.[3]  The system would also be able to check insurance claims against their corresponding insurance contracts to determine whether there are any coverage problems that need to be raised against customers.[4]

Large insurance companies are not the only businesses interested in the idea of expanding the use of artificial intelligence in the processing of claims.  There are an estimated 2,000 start-up companies centered around artificial intelligence, many of which are developing software and apps in order to replace human actuaries, reduce labor costs, and allegedly make more accurate predictions.[5]  Lemonade, for example, is a property and casualty insurance company funded by corporations such as Google that touts it can insure homeowners and renters in 90 seconds and pay out claims in 3 minutes through an app using a smart phone.[6]  Tractable is a London-based artificial intelligence corporation that promotes its ability to streamline automobile property damage repair payments by comparing uploaded photographs and repair estimates, reducing the cycle time from days and weeks to minutes, without involving a human claims handler.[7]  Yet another startup company, RightIndem, looks to put the injured party in charge of the entire claims process for motor vehicle collisions by inviting customers to make and process claims at “their pace” using their smart phone, tablet, or personal computer.[8]  The one constant among all of these companies is the promise to reduce claims “leakage,” a term used to describe the dollars lost through claims management “inefficiencies” that raise costs and lower profits for insurance companies.

While the use of artificial intelligence to process personal injury claims has been described as a “focused set of initiatives to improve customer experience and… effectiveness in [the] claims” function,[9] serious doubts remain about the ability of artificial intelligence to appreciate the very human impact, and unique nature, of each traumatic injury on the individual.  This artificial process also cannot replace or replicate the human behaviors, emotions and experiences that impact a judge or jury tasked with evaluating a personal injury claim in court. Even insurance adjusters at times have been forced to acknowledge the inherent limitations of mathematical formulas and computers in successfully evaluating and resolving personal injury claims.  In short, artificial intelligence is unlikely to fully appreciate the nuances that are part of each and every personal injury claim, and unique to each patient.  The attorneys and staff at the law firm of Adler Giersch remain committed to ensuring that our clients are never seen as just names and numbers on a piece of paper.  If you, your staff, or your patients have any questions regarding the processing of insurance benefits, feel free to reach out to us.

 


[1] “Artificial intelligence”, or, “machine learning”, is the theory and development of a computer system able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translating between languages. Oxford Dictionaries.

[2] An”algorithm” is a mathematical instruction that allows a computer to process information. As more and more algorithms are calculated, the computer can begin to learn on its own and propose solutions. Deangelis, Stephen F. “Artificial Intelligence: How Algorithms Make Systems Smart.” Wired, September 2014.

[3] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.

[4] http://mainichi.jp/english/articles/20161230/p2a/00m/0na/005000c

[5] Nanalyze. “10 Artificial Intelligence Startups in Insurance.” Nanalyze, May 21, 2017.

[6] https://www.lemonade.com/faq#policy

[7] https://tractable.ai/products/insurance

[8] https://rightindem.com/

[9] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.

The Personal Injury Protection Guide for Providers

PIP

By Lauren E. Adler, Attorney at Law

If your patient is treating from a car collision, Personal Injury Protection Insurance (also known as PIP) is one way that your services are paid for.  We advise providers and patients alike to double check—and then triple check—that PIP is listed on the declaration page of their auto insurance policy.  If you don’t have it, add it.

PIP is great because it covers medical treatment more broadly than many health insurance policies.  To the extent of your patient’s PIP limits of at least $10,000 (the mandatory minimum that auto insurers in Washington must offer), there are fewer restrictions on what is covered, no in-network/out-of-network distinction between providers, no copays, no deductibles, and no annual visit limitations.  According to the Revised Code of Washington (RCW) 48.30.010 and the Washington Administrative Code (WAC) 284-30-395, the statute and rule which establish the legal standards for prompt, fair and equitable settlements by insurance companies for PIP claims, a bill submitted under PIP can only be denied if the treatment (1) is not reasonable, (2) is not necessary, (3) is not related to the collision, or (4) occurs after 3 years of the collision date.  WAC 284-30-395 provides, “These are the only grounds for denial, limitation, or termination of medical and hospital services,” under PIP.

PIP covers any person named on the auto policy, as well as household members.  Any passenger in the insured car is covered, as well as any pedestrian or cyclist involved in the collision.  Furthermore, a patient is not limited one layer of PIP coverage. If the patient has their own auto policy, that PIP comes in as a secondary layer.  Depending on the situation, there could be multiple layers of PIP available, depending on the patient’s own policy and their role in the collision – owner, driver, passenger, pedestrian or cyclist.  If you are unsure about a patient’s potential PIP coverages, we recommend the patient consult with an attorney.

If your patient is treating from a collision caused by someone else, save yourself the energy of sending bills to the at-fault driver’s insurance company.  The at-fault insurer is not responsible for a dime until the patient’s injury claim is ready for settlement.  PIP, on the other hand, pays medical bills on an ongoing basis.  So even if your patient is not at fault and it seems counterintuitive to send the bills to the patient’s own insurance company, all bills go to PIP.  When PIP runs out, the patient’s health insurance is next in line to pay.

All of this may sound well and good, but it often isn’t smooth PIP sailing.  Insurers are always cooking up creative ways to deny bills and to discourage drivers from obtaining, or increasing, PIP coverage.  While Washington state law requires insurers to offer PIP insurance, insurers make it very easy for drivers to “waive” their right to PIP by simply clicking a “rejected” box on the insurance application.

Below, we happily debunk some of the myths insurers would love you or your patients to believe about PIP.

  1. If you have health insurance, you don’t need PIP.

False.   PIP is not extraneous – it is protective.  As long as treatment is reasonable, necessary, and related to the collision, PIP must pay for the care.  Therapy visits are not limited per the terms of a PIP policy like they frequently are in health insurance policies.  Because PIP is more expansive in terms of medical treatment covered, often times it is absolutely necessary to have, especially for patients who could not otherwise afford to pay out of pocket for treatment that goes beyond their health insurance allowance.   Moreover, PIP insurance covers wage loss and household services expenses the patient may incur as a result of the collision.

  1. The adjuster is the final authority on whether your patient has PIP coverage available to them.

False.  Just because the adjuster tells your patient there is no PIP coverage on his or her auto policy, that isn’t necessarily the final word.   Under Washington state law, insurance contracts are interpreted in favor of the insured, not the insurance company, so the insurer has the burden to prove that they offered PIP but the patient rejected it.  The rejection must be signed in writing by the patient, so the adjuster simply saying that there is no PIP available is not good enough.  Your patient should demand a copy of the signed waiver.  If the insurer cannot produce it, the adjuster must open a PIP claim for a minimum of $10,000.

  1. PIP does not cover “palliative” care.

False. Whether treatment is “palliative,” i.e., will not ultimately cure the patient, is not relevant.  Under the law, what matters is whether the treatment is (1) reasonable to address the injuries, (2) necessary to treat the injuries, and (3) related to the collision.  If it is all three, PIP is obligated to pay.  RCW 48.30.010; WAC 284-30-395.

  1. The patient must sign a release allowing the insurer unrestricted access to all medical records.

False. The patient does have a duty to cooperate with the PIP insurer, so they do need to allow the adjuster access to records for collision-treatment if it is requested.  However, the adjuster needs only enough to determine that treatment is reasonable, necessary, and related to the crash.  We recommend a careful review of any release your patient signs, especially if the patient has a long history of treatment, to ensure the insurer does not get full access to the patient’s entire history and file which could be used against them to cut off care.

  1. The adjuster can make their own medical determinations.

False.  Medical opinions, such as whether your patient’s injuries are from a prior condition, whether your patient is getting too much treatment, or whether your patient does not need further care, must be made by a medical practitioner.  If the adjuster decides to cut off your patient’s PIP, that decision must be supported with a medical opinion from a similarly licensed healthcare professional.  If the adjuster asks your patient for an exam, called an Insurance Medical Exam, is usually a sign that the insurer is gearing up to cut off your patient’s PIP.

  1. PIP coverage ends when the patient improves enough.

False.  PIP covers care until it is no longer reasonably necessary, or until coverage runs out. The insurer cannot close a PIP claim because a patient is able to go back to work, or is somewhat improved.

The attorney team at Adler Giersch is experienced at navigating PIP insurance issues. If your patient has been put on notice that they will need to attend an IME, or is getting the runaround from their PIP insurer, let us know and we are happy to advise.

 

The Emerging Privacy Invasion from the Insurance Industry

By Jacob W. Gent, Attorney at Law

The auto insurance industry have begun implementing programs to provide more personalized quotes based on the actual driving habits of consumers through the use of auto tracking devices.  And some insurance companies are offering consumers financial incentives in the form of discounts, as much as 30% off premiums, to entice customers to install these tracking devices on their vehicles.[1]  Before deciding to enroll in such a monitoring program, one should stop and consider the motivation and risk behind these offers.

The birth of tracking devices is the offspring of “telematics,” the merger of telecommunications and infomatics, enabling the insurance industry to move closer to a “Pay How You Drive” business model that can calculate premiums based the driving habits of the policyholder.[2]  These devices are installed in your car and records information such as vehicle speed, acceleration and braking rates, cornering, miles driven, vehicle location and route driven, time of day the vehicle is driven, and other vehicle operational information such as fuel consumption.[3]  Telematic systems may be linked through your smart phone, connected to a vehicle’s infotainment system, or plugged in to the On-Board Diagnostics (OBD) port.

While the allure of cheaper rates for car insurance is appealing, make no mistake: insurance companies are out to earn profits, huge profits.  No matter how neighborly, caring, or friendly their advertising scheme may be, auto insurers will be able to search the data collected through telematics to show you are a “risky driver” in order to raise your rates.  And with telematic tracking devices voluntarily installed in a customer’s vehicle, the easier it is for insurers to charge higher premiums.[4]

The criteria you must satisfy to receive any premium discount is determined exclusively by the insurance company and subject to change at any time.  Moreover, insurance companies do not guarantee any discount when you enroll in these monitoring programs.  According to Progressive’s Snapshot Common Questions FAQ:

“Most Snapshot customers earn a discount based on their safe driving; however, riskier driving based on [driving habits that] indicate a greater likelihood of being in an accident and may result in a higher rate at renewal.”[5]

This means that your premiums will be set based on a projection of a collision, not on data of an actual collision.  Progressive was the first auto insurer in the United States to start using a telematics tracking system.  Beginning in 1998, Progressive rolled-out the “Snapshot” program Copy of March 2017 Advocate Article to incentivize good driving habits by offering discounts to safe drivers.[6]  Initially, the data collected by Progressive was only used to determine whether a policyholder qualified for the advertised discounts.  But starting in 2013, Progressive began using telematics data to adjust and increase rates based on driving behavior.[7]

Progressive claims 80% of its policyholders would benefit from the Snapshot program, but interestingly only about 25% of their customers participate in the program.  Similarly, Allstate reported to the Wall Street Journal that approximately 30% of its customers participated in its Drivewise program.[8]  Apparently, not all drivers are eager to give insurance companies access to more of their personal information, such as where they drive and when.

The reluctance of many consumers to sign on to these insurance industry programs has something to do with well-founded privacy concerns.  Advertisers, and the data brokers who sell information to them, track consumers’ virtual footprints online while banks and credit card companies track when and where customers shop, and retailers monitor and market to consumer buying patterns.[9]  Monitoring when and where a person drives can feel especially intrusive to the American consumer, where the idea of the “open road” is synonymous with our general notion of freedom.

Even more concerning is the question of who else might gain access to this information.   According to Jeff Wright, Vice President of Usage Based Insurance at Liberty Mutual:

“Liberty Mutual values and respects our customers’ privacy.  We will not share personally identifiable usage data we collection with any third party except to service our customers’ auto policies, for research, or as required by law.”[10]

The assurance of protecting privacy in the first part of the sentence is voided by the phrase “except to service our customers’ auto policies, for research, or as required by law.”  That latter statement is vague enough to allow insurers to do what they want with the data.  For example, the phrase “required by law” means your personal data could be subject to subpoena by a court or provided to law enforcement agencies to comply with state or Federal laws, which may have nothing to do with an individual’s driving habits.[11]

Many theorize that it is only a matter of time before insurance companies require telematics devices be used on every vehicle before issuing a policy and that certainly appears to be the trend within the automobile manufacturing industry.  According to a white paper by IHS Technology published in 2011, it is predicted that “by the end of 2018, the percentage of new cars available for sale in the U.S. Market with embedded telematics will soar to 80 percent.”  A 2013 report by ABI Research stated “global insurance telematics subscriptions [are predicted] to grow at a compound annual rate of 81 percent from 5.5 million at the end of 2013 to 107 million in 2018.”[12]  Once the use of these tracking devices becomes mandatory, insurance companies’ profits will soar as they constantly monitor their customers’ behavior.  Until that time, be sure to read the fine print before voluntarily agreeing to participate in any insurance monitoring program to decide whether the possible savings is worth the privacy you are giving away.

Next time you think, “Why not? It may save me a few bucks…,” stop and consider the motivation and risk behind the offer.  The attorneys at Adler Giersch are as committed to advocacy for our clients as we are on staying abreast of developments in the insurance, legal, and medical worlds that impact all of us.


[1] Consumerist; https://consumerist.com/2016/01/11/some-drivers-dont-want-insurance-companies-tracking-them-even-if-it-means-discounts/

[2] Digital Trends; https://www.digitaltrends.com/cars/how-telematics-may-affect-your-auto-insurance-rates/

[3] Allstate.com; https://www.allstate.com/tools-and-resources/car-insurance/telematics-device.aspx

[4] Digital Trends.

[5] Progressive.com; https://www.progressive.com/auto/snapshot-common-questions/

[6] US News & World Report; https://cars.usnews.com/cars-trucks/best-cars-blog/2016/10/how-do-those-car-insurance-tracking-devices-work

[7] Id.

[8] Consumerist.

[9]  Id.

[10] Digital Trends.

[11] Id.

[12] Digital Trends.

Promising Developments for Survivors of Traumatic Brain Injury: New Studies Link Increased Physical Exercise with Enhanced Neuroplasticity

By Melissa D. Carter, Attorney at Law

 

“They thought that the brain was too sophisticated for its own good.  That during evolution it became so complex that it lost the ability to repair itself and to restore lost functions or to preserve itself.  They were wrong.  Because it turns out that its very sophistication can be the source of a unique kind of healing…the brain’s way of healing”

Doidge, Norman, MD, Introduction.  The Brain’s Way of Healing: Remarkable Discoveries and Recoveries from the Frontiers of Neuroplasticity.  James H. Silberman, New York, 2015.  Print.

The human brain consists of approximately 100 billion neural cells.  Until fairly recently, the prevailing wisdom was that people are born with a finite number of brain cells and that they will not regenerate once dead.  However, we now know that certain areas of the brain under very certain circumstance have the potential to generate new cells (called neurogenesis) and create new neural pathways, often referred to as “neuroplasticity.”  Neuroplasticity is the ability of the brain to change and adapt in response to experience.  This understanding has led to many exciting developments in brain science, and in particular, in relationship to brain injury recovery.  Current understanding is that there are two types of brain neuroplasticity:
  1. “functional”: which is the ability of the brain to move functions from a damaged area to undamaged areas; and
  2. “structural”: which is the brain’s ability to morph  its physical structure as a result of learning.

Neuroplasticity, if it occurs, can be an important piece of recovery following a traumatic brain injury, and can play a role in both cognitive and physical rehabilitation following brain injury. Part of brain rehabilitation is aimed at trying to rebuild connections among the nerve cells, or neurons. This “re-wiring” of the brain, according to theory and practice, may under certain circumstances, make it possible for part of a previously damaged function area to be assisted by another, undamaged area. The connections among the cells, at times, appear to be receptive to this type of change and expansion.

The brain’s plasticity is influenced by many variables, including diet, exercise, cognitive engagement, emotional state, sleep and stress level.  Evidence from both human and animal studies suggests that certain types and degrees of enhanced physical exercise can help facilitate neuroplasticity of certain brain structures, including enhanced cognitive function responses, as well as affective and behavioral responses. As researchers get closer to understanding neuroplasticity and brain injury, the developments may have far reaching impacts on brain injury recovery and rehabilitation.

A recently published special paper in the journal Neural Plasticity looked at multiple recent studies from the past 12 months and seemed to connect certain types of physical exercise with growth of new brain cells, increasing memory center, improving IQ scores and theorizing the possibility of preventing brain deterioration as one ages.  The paper cites 6 different international studies that used brain scans, EEG recordings, blood sampling and saliva sampling to investigate the exercise-induced brain activity and volume changes in different brain areas, including frontal and central regions of the brain, the hippocampus, cerebellum and motor cortex.  The studies looked at the impact of a variety of physical exercise, such as dancing, playing handball, walking or cycling.  The outcome variables referred to cognitive (memory consolidation) and motor performance measures.[1]   The results of the multiple studies suggest that physical exercise may play a role in triggering neuroplasticity and, thereby, could possibly enhance an individual’s capacity to respond to new demands with behavioral alterations.

Lifestyle strategies proven to promote neurogenesis include:

  • Interval training exercise;
  • Reducing overall calorie consumption;
  • Reducing carbohydrate consumption (especially grains and sugars);
  • Enough healthy fat consumption to eliminate insulin resistance; and
  • Enough high-quality omega-3 fats and eliminating damaged omega-6 fats (processed vegetable oils).[2]

Advances and developments in rehabilitation in the area of brain health are ongoing.  At Adler Giersch, we remain devoted in our drive to study, learn, and advance the understanding of traumatic brain injury, rehabilitation and treatment options so that we can provide the best legal representation to our clients.  If we can be of assistance, simply contact us via email or give us a call.


[1] https://www.hindawi.com/journals/np/2016/3643879/ Neural Plasticity, Volume 2016 (2016), Article ID 3643879, 3 pages “Neuroscience of Exercise: Neuroplasticity and Its Behavioral Consequences.” Henning Budde, Mirko Wegner, Hideaki Soya, Claudia Voelcker-Rehage, and Terry McMorris.
[2] http://articles.mercola.com/sites/articles/archive/2015/01/15/neuroplasticity-brain-health.aspx