Researchers at the University of Washington continue to study treatment for TBI.  The published results of a major study.  The study enrolled patients treated at Harborview Medical Center.  The had moderate to severe TBI.

Researchers found that magnesium treatment was not effective.  It neither decreased deaths nor improved functioning.  Most subjects were unconscious.  Family members consented for half to enroll.  About half had no family there in time to ask.  A waiver of consent made possible their participation.  The researchers are grateful to the patients, their families and the community for their help in conducting the research.  Researchers around the world continue to search for effective treatments.  But TBI still leaves many with major disabilities.

The results from the study are in Lancet Neurology, a widely read medical journal.  They are summarized at: http://depts.washington.edu/uwtbi/Projects/magnesium.htm

St. Michael’s College School, a private school in Toronto, has taken into account research that demonstrates rushing back to the classroom after a concussion can be as harmful as rushing back to athletics.  In coordination with medical professionals, the school has developed the “Return to Learn” program, a six-level graduated protocol to help students academically after a brain injury.  The protocol begins with full bed rest at home and incrementally reintroduces class time, screen time and homework.  This approach involves teachers, coaches, parents and doctors in a gradual and deliberate reintegration process.

Tune in Sunday for a very interesting documentary…

By Dick Kalla

http://blog.seattlepi.com/highschoolcover2sports/2011/09/27/breakthrough-in-concussion-monitoring/

While the X2 Impact program is very interesting and will hopefully yield quality results – nothing should ever take the place of a well reasoned return to play protocol.  NLE supports the Brain Injury Association of Washington’s continuing education programs on return to play reminder – When in Doubt, Sit Them Out.

Editor’s note: This is a seattlepi.com reader blog. It is not written or edited by the P-I.

By Don Walker of the Journal Sentinel.

http://www.jsonline.com/blogs/sports/131073208.html

NLE is happy that Wisconsin is following Washington’s leadership on the Lystedt Law. Hopefully, all 50 states will enact similar legislation.

They released a sneak peek at items up for auction at this year’s fund raiser. Take a Look

A great article posted on www.sportsconcussions.org’s website http://www.sportsconcussions.org/ibaseline/guidelines-when-to-play-when-to-quit

http://seattletimes.nwsource.com/html/sports/2016423888_apusmedkidsconcussions.html

This photo was taken while out on an electric boat ride around Lake Union. From the BIAWA auction, we purchased a two hour electric boat rental from The Electric Boat Company (http://www.theelectricboatco.com). With all the nice weather lately we grabbed a few snacks and headed out. If you ever need something to do when you have family or friends in town, we highly recommend it. It was a great way to show off our great city.

Mike Nelson & Aaron Engle have been asked to participate at WSAJ’s Insurance Law Seminar being held October 7, 2011 at the Washington State Convention Center. Their topic is ERISA subrogation. They hope to teach others how to better understand it, and how to better advocate against it for your clients.

Article in sunday’s NY Times re: the law suit filed by NFL Players wanting to add medical monitoring of players which would include those who have suffered concussions.
http://www.nytimes.com/2011/08/21/sports/football/former-nfl-players-broaden-focus-of-concussion-suit.html?_r=1

Mike Nelson & Aaron Engle have been asked to participate at WSAJ’s Insurance Law Seminar being held October 7, 2011 at the Washington State Convention Center. Their topic is ERISA subrogation. They hope to teach others how to better understand it, and how to better advocate against it for your clients.

Fred’s presentation on Long-term Disability Insurance on Wednesday was a success, and very appreciated by the attendees. We would like to thank Ann Breen, Patient and Family Education Coordinator, for setting this up for us. Fred will be giving a repeat of this presentation on October 12, 2011 at Seattle Cancer Care Alliance 12:00 pm – if you would like to attend please contact Ann Breen at (206) 288-1033 or visit www.seattlecca.org

Nelson Langer Engle will be volunteering at Safeco Field on September 8, 2011. We’ll be operating a concession stand as the Mariners take on the Kansas City Royals. A portion of the proceeds will go toward the Brain Injury Association of Washington. Come on out to watch the game and visit us while we support a good cause!!

Tickets: http://seattle.mariners.mlb.com/schedule/index.jsp?c_id=sea#m=9&y=2011

We’ve hired Sarah Dennis to be our new law clerk. She is a distinguished student from the Seattle University’s law school and is fluent in both English and Spanish. Being bilingual, she was able to jump right into an ongoing  case.

She grew up in Boulder, Colorado and went to school at the University of Oregon. She enjoys traveling and likes to ski, run, cook, and do Yoga. Her law interests include client advocacy and client interaction.

Last year NLE sponsored the annual Seattle Children’s Autism Guild Auction. Mike won the bid for a Tuscan dinner. The dinner was held on June 12^th and was hosted by a number of prominent SCH doctors and guild members. All proceeds are supporting the Seattle Children’s Autism Guild.

The Guild is an all-volunteer program set up to raise funds for Seattle Children’s Autism Center, which opened in 2009. It is comprised of caregivers, therapists, family members and friends of those affected by autism.

Seattle Children’s Autism Guild Website:

http://seattleautismguild.org

Apple’s App store has some great new apps that help with research and information regarding Traumatic Brain Injury and Concussions.  See the links below.

http://www.apple.com/webapps/searchtools/traumaticbraininjuryupdates.html

http://itunes.apple.com/us/app/concussion-recognition-response/id436009132?mt=8

http://itunes.apple.com/us/app/concussion/id418559920?mt=8

A new medical device is being developed by a medical neurotechnology company called
BrainScope, to rapidly and objectively assess brain function at the initial point of trauma. It
consists of a hand-held device with software, miniaturized hardware, a disposable headset
containing electrodes and a web-based data system. The system will be studied in the UK in
late spring. This technology could help fill a long-standing clinical need for early identification,
which would lead to better treatment for head-injured patients.

http://www.prnewswire.com/news-releases/brainscope-prepares-to-introduce-ahead-eu-100-to-aid-in-assessment-of-head-injury-in-the-united-kingdom-117565813.html

by Arthur Bryant – Executive Director – Public Justice and the Public Justice Foundation

It’s happening all across the country.  When employees receive health insurance for their medical bills, suffer injuries and have their medical bills covered, and then recover even limited compensation from those who caused their injuries, their employers’ insurance plans are — believe it or not — suing the employees.  Why?  To strip those employees of the medical bill coverage the insurers were paid to provide.

In 2003, a Washington state single mother with two teenage children was injured in a car crash.  After paying roughly $30,500 of the woman’s medical bills, her employer’s insurance plan demanded it get all of the money back because she recovered compensation for only a fraction of her injuries from a third party.  That third party was the drunk driver who caused the accident and Rhonda Rose’s serious nerve damage and neck and back trauma.  Despite multiple surgeries, her injuries and chronic pain continue to this day, making it difficult for Ms. Rose to care for her kids and find work.

In 2007, James McCutchen, an airline mechanic for US Airways, was also badly injured in a car accident.  His health insurance plan, which was sponsored through his employer, paid nearly $67,000 to cover his medical expenses; Mr. McCutchen also recovered about 10 percent of his total damages from the third party at fault in his accident.  The airline company’s insurer then turned around and sued him for all of the money it paid.

These insurance plans are self-funded under the Employee Retirement Income Security Act (ERISA), a federal law that sets minimum standards for most health insurance plans in private industry.  And these lawsuits are wrong — and disturbingly greedy.  That’s why Public Justice is challenging ERISA plans’ efforts to recoup their medical expenses from undercompensated tort victims.

We are now battling ERISA subrogation in two federal courts of appeals.  In both cases, the insurers claim that they are entitled to 100 percent of the money they paid out, even though the injury victim only recovered a small fraction of her or his damages.

We just won a partial victory in our case on behalf of Ms. Rose.  The district court in Washington held that the insurance plan’s recovery must be reduced by the “costs of collection,” which include attorney’s fees.  This in itself is a critical victory for access to justice because it makes it economically feasible for attorneys to represent tort victims in cases involving a lurking ERISA subrogation lien.  The district court, however, refused to place any further limits on the insurance plan’s claim to 100 percent recovery of its medical expenses, despite our arguments that equity demanded a fairer distribution of the proceeds.

This “split decision” is now being appealed by both sides.  We believe that the district court should have followed ERISA’s statutory requirement that limits an insurance plan’s claim based on the amount that the victim actually recovered, and we will be advancing this argument before the U.S. Court of Appeals for the Ninth Circuit later this spring.

Our other case, US Airways v. McCutchen, is just getting off the ground.  Public Justice recently filed its opening brief in the U.S. Court of Appeals for the Third Circuit on behalf of Mr. McCutchen.  We think his insurer’s demand for all of the money it paid is patently unfair and violates the basic requirements of ERISA.

Both the Third and the Ninth Circuits will now have a chance to weigh in on the fairness of this practice.  We hope they recognize what most fair-minded people already know:  it violates fundamental principles of equity for insurers to strip undercompensated personal injury victims of the medical coverage their insurers were paid to provide.

To read the District Court’s opinion in CGI v. Rose, click here.

To read Public Justice’s opening brief in US Airways v. McCutchen, click here.

Thanks to Public Justice’s Budd-Kazan Attorney Matthew Wessler and Senior Attorney Leslie Brueckner, lead counsel on both cases.  Thanks, also, to our co-counsel in CGI v. Rose — Paul Stritmatter, Mike Nelson, and Mike Withey of Seattle and Caitlin Palacios of Washington D.C. — and to our co-counsel in US Airways v. McCutchen, Jon Perry and Paul Hilko of Rosen Louik & Perry, P.C.

And, as always, thanks to you for your generous contributions and support.  We must keep the courthouse doors open for all.

Arthur Bryant

Executive Director

Public Justice and the

Public Justice Foundation

It was the AFC Divisional playoff game between the Chicago Bears and Seattle
Seahawks. Everyone was relieved and happy that Lofa Tatupu, the middle linebacker of the Seattle
Seahawks, passed all of his concussion tests and was cleared in time to play against
the Bears. Dr. Herring talked about Tatupu’ s recovery and said that he has shown good
progress with the concussion testing.

Some may not know that with the Lystedt Law in place, athletes “ who are suspected of
having sustained a concussion are removed from practice or a game- and not allowed
to return- until they have obtained a written return-to-play authorization from a medical
professional trained in the diagnosis and management of concussions.”

The serious nature of concussions in sports, football in particular, is what lead to the
passing of the Lystedt Law, which Dr. Herring was instrumental in getting passed in
Washington.

By Fred Langer
Over the holidays I went skiing in Mission Ridge with my son and almost every kid
was wearing a helmet. When I was young no one wore a helmet. It’s great that safety
is catching on and that helmets are a regular part of ski and snowboard equipment.
According to the National Ski Areas Association, “ helmet usage by skiers and
snowboarders nationwide increased 12 percent over the previous season.”

The NSAA also states that “ overall ski helmet sales (adults and kids) have increased 43
percent over the past two years, dating back to the 2006/07 ski season.

Illustration
The brain, for an attorney, is the most important “tool.” After several decades of practice, one’s identity proudly becomes “attorney and counselor at law.” But what happens when an attorney suffers a brain injury and this tool is taken away? This article discusses the ramifications of having a head injury for one WSTLA EAGLE member. It also discusses the interrelation of practice areas and litigation techniques; specifically, brain injury, long-term disability insurance denial,
catastrophic injury case development, and insurance bad faith law (R-67 or Insurance Fair Conduct Act). All of these came together to assist a fellow attorney with a brain injury. Indeed, R-67 arrived at a perfect time.

The Automobile Collision
WSTLA EAGLE, Jack (a substituted name), suffered a traumatic brain injury in 2005. He was driving home from his law office in western Washington when an erratic driver crossed the centerline crashing into Jack’s vehicle. The resulting collision flipped Jack’s vehicle on its side and knocked him momentarily unconscious. This was a high-speed collision with closing speeds approaching 90 miles per hour.

After the crash, Jack was taken to the hospital and released later that evening. At the time, Jack and his wife did not realize the ramifications for his legal career. Jack returned to his law practice several days later. However, things just were not the same. Jack was a Group Health member. Fortunately, Jack’s orthopedic injuries healed fairly quickly. But he found that he could not focus on his work. Despite the fact that his doctor told him he would recover from his concussion
symptoms, he found himself at times uncharacteristically angry and emotional, unable to concentrate on his cases, and incapable of staying organized. He tried working longer hours to make up for these problems, but that did not help. The continued advice of his Group Health doctor – that Jack would shortly get better – was encouraging, but this advice did not approximate reality.

Jack quickly obtained a third-party injury settlement on his own as there was limited coverage. However, Jack did not feel he should handle his own larger underinsured motorist (“UIM”) and umbrella claims due to his post- concussive symptomotology. Neither was he aware at the time that his claims would ultimately include an employment-related long-term disability claim.

Establishing the Proof of Brain Injury
Jack had sustained a concussion in the collision; however, little head injury work-up had been accomplished by specialists. His injury was simply labeled “postconcussive syndrome.” Eight months after the motor vehicle collision, Jack underwent an initial neuropsychological examination, with David Fordyce, PhD. Since neuropsychological testing is not normed with high-achieving intellectually capable individuals in mind, “real deficits” are not fully revealed without a full ecological
appreciation of the head-injured victim. Although not “normal” per se, initial neuropsychological testing in this setting will often miss the more subtle losses. A fully measured neuropsychological analysis needs to incorporate repeat testing, performance after cognitive rehabilitation, and input from the entire treatment team. Repeat testing, in particular, is required to better tease away the traditional defense arguments.

Accordingly, Jack’s “case” development required much more than one neuropsychological evaluation – it required quantifiable input from experts specializing in neurology, neuroradiology, cognitive rehabilitation, vocational testing and rehabilitation, and psychological management with a brain injury orientation. It is no coincidence that effective medical treatment requires exactly the same. Indeed, case development considerations ideally are not independently planned, but are the outgrowth of a holistic and comprehensive treatment plan for the traumatic brain injury victim. The best evidence is nothing more than the product of the best treatment.

Jack treated with a neurologist with a sub-specialty in brain injury and a brain SPECT scan was ordered. This testing, which looks at brain function as opposed to brain structure, revealed functional abnormalities. A 3-Tesla brain MRI including Diffuse Tensor Imaging (DTI) was also ordered, and this in turn explained why the brain SPECT scan documented functional deficits. The original emergency room CT scan had confirmed scalp swelling and head trauma. Thus, counsel in
this case was fortunate to have something that litigants seldom have: four separate diagnostic imaging studies that objectively proved a severe head impact and concomitant brain pathology.

The CT scan confirmed head impact, scalp swelling, and the location of the skull trauma. The 3-Tesla MRI scans, with their stronger magnet strength, are able to demonstrate pathology not seen, or poorly visualized, with normal strength magnets. Abnormal lesions were identified. They were primarily located at the greywhite matter interface and were also identified in “clusters” involving the frontal lobes. These locations are typical for traumatic injury as the junction between the grey and white matter is the most susceptible to shearing forces in the brain. Copies of the 3-Tesla MRI and DTI images shot by Nevada Imaging and the corresponding reports by William Orrison, M.D., were provided to the carrier in December of 2006.

The DTI portrayed the tracks that go back and forth between the right and left hemispheres of the brain through the corpus callosum. This imaging documented damage in these crucial fiber tracks. In virtually all right- handed people, and in almost all left-handed people, speech centers are on the left side of the brain. This means that the left side of the brain has to obtain information from the right side of the brain in order to express the informational content. Similarly, other
features on the right side of the brain have to be coordinated with features on the left side. There is a great deal of “cross talk” that goes on between the two sides of the brain. The corpus callosum functions like a computer bus (the big ribbon of cables that goes from the computer to the printer or from the computer to another analyzer). The corpus callosum facilitates the communication of the different sides of the two hemispheres of the brain.

In Jack’s DTI study, his fiber tracks were less prominent and less visible, anteriorly and posteriorly, in the corpus callosum. The results were consistent with the data revealed in the previous scans. The evidence was most consistent with a coup contra coup type injury – the type of injury Jack’s violent skull impact would be associated with.

The graphics below portray the actual findings seen with the DTI scans in this case.

Jack underwent brain SPECT scan studies which were completed in 2006. These brain SPECT scan studies demonstrated areas of abnormality and decreased activity in the frontal lobes and were consistent with the deficits found in previous MRI examination and in prior neuropsychological and vocational testing. Decreased activation of the cerebellum, which is a region of the brain that can perform learned tasks more efficiently, was also observed. It is believed that individuals suffering from traumatic brain injury who report cognitive fatigue may not be properly activating the cerebellum and, consequently, are forced to use their frontal lobes to perform tasks previously more naturally processed by the cerebellum.
The evidence of pathology was consistent across the board. As evidenced by the four different scans, the pathology could be visually “seen” in all four studies. The nature and location of the neuroradiological evidence was otherwise corroborated by neuropsychological analysis. The functional testing accomplished by the vocationalist and the cognitive re- trainer added another layer of verification. The treating psychologist, also a brain injury specialist, confirmed psychological
difficulty typical for brain injury and further documented the psychological ramifications of declining professional performance. The layers of treatment and corresponding evidence combined to paint a picture that verified the nature and extent of the traumatic pathology, while confirming the breadth of damages at the same time. The attendant practical consequences, emotional reactions, law-business losses, loss of identity, and spousal impacts were also clearly incorporated
within the scope of these presentations so that the totality of this couple’s damages could be better portrayed. The spouse in such a setting is not only a witness to their own losses, but also becomes an enlightening window through which to better understand the damages of the injured party. The loss of consortium evidence therefore takes on double importance. Together, all the evidence demonstrated that Jack took every conceivable step to maintain his law practice, but
such was not possible given the extent and nature of his brain injury. The sincerity and failure of that struggle was a poignant reality visited by all witnesses.

Insurance Claim Demands

A. UIM and Umbrella Coverage Policy Limits Demanded
With the support of all the treating specialists and this objective evidence, a demand for the first $500,000 of UIM policy limits and then the umbrella limits of $1,000,000 was tendered in September of 2007.

B. Disability Claims with Northwestern Mutual
By July 2007, Jack was functionally unable to continue his law practice. A formal Long Term Disability claim, together with an Office Overhead disability claim, was tendered with the firm’s disability carrier, Northwestern Mutual. Northwestern adjusted these claims separately out of two offices. A formal live interview with the claimant was requested and granted (and a good impression of the claims conveyed). After reviewing the same medical documentation developed for Jack’s
UIM claim, the disability claims were accepted and related back to the collision date and paid, per the contract, for the due percentages of diminished monthly earnings. The Long Term Disability coverage extends to age 66 and provides monthly tax-free payments.

A “contingency practice” made the calculation of Jack’s losses complicated. Northwestern agreed that income for hours worked before the collision but received after the collision should not apply to post- collision income so as to extinguish the ability to meet loss thresholds triggering payment or to reduce the amount of those monthly payments. The firm did maintain hourly records even for contingency files. For contingency cases, the total hours had to be divided into the fee to
arrive at an hourly rate, and then those hours had to be separated into pre-collision and post-collision categories so that a claimable loss per month due to diminished earnings capacity could be calculated. Fred DeKay, PhD, a consultant economist from Seattle University, was able to comprehensively portray the loss for each month of diminished work and create a master table of claimable losses by month. Northwestern accepted such as a method of determining monthly disability payment amounts. These receipts will help maintain a platform to better meet the financial detriments of a forced, unwanted early retirement.

C. No Substantive Response to September UIM Demand
On the UIM track, Jack’s counsel received only a response from Nationwide that requested additional documentation relating to Jack’s law practice and otherwise seemed non-responsive. Counsel was able to supply most of that information, and in addition supplied a supplemental demand presentation that included lay witness statements from Jack’s investigator and other plaintiff attorneys regarding the losses Jack had suffered in his practice. Also tendered was an economic
loss report by Dr. DeKay detailing Jack’s substantially diminished earnings capacity. In early November 2007, in a supplemental demand letter to Nationwide, Jack’s attorney asked whether Nationwide wanted their insureds to incur the further expense of a Life Care Plan and settlement brochure video. Additionally, Nationwide’s adjuster was invited to personally meet Jack and his wife and any of the health care providers involved with Jack’s treatment if they had any
questions about the policy limits nature of the claims (including a loss of consortium claim). Nationwide made no formal response to the demand presentations nor offers of meetings, though it advised that it had retained a Seattle attorney to review all the information provided. This was viewed as a positive step as the attorney was experienced and respected.

D. Referendum-67 Implications and Bad Faith Assertions
The initial demand, and the supplemental demand presentation in early November 2007, invited a “thumbs up or thumbs down” decision from Nationwide respecting the $1.5 million dollars of total coverage. There was a specific emphasis upon fiduciary obligations to Jack and his wife as liability was clear, causation established and objectively verified, and the total value of all damages overwhelming in contrast to the first- party coverage available. Nationwide’s “good faith” became the issue. Such was already somewhat at issue as Nationwide had indicated that it was uncertain as to whether or not the umbrella coverage would layer on top of the underlying UIM coverage. Counsel undertook a full contract review of the pertinent policy language. Upon presentation of this review, Nationwide determined that after a UIM claim for $500,000 was concluded, the $1,000,000 umbrella was then available. The uncertainty and “hyper technicality”
questioned Nationwide’s good faith commitment. The stage was set to inquire whether Nationwide’s delay and denial by non- acceptance constituted a breach of its good faith duties to its insureds. Into this claim setting rode R-67.
With the passage of Referendum 67 also known as the Insurance Fair Conduct Act (“R-67” or “IFCA”) in the November 2007 election, counsel felt that more momentum for timely and appropriate resolution was available and accordingly tendered a formal R-67 Notice upon the insurer. Also provided to the insurer was a final demand presentation wherein Nationwide was reminded that Washington law required it to conduct a reasonable investigation before denying claim
benefits. This presentation detailed how the radiology that was provided in CD form to Nationwide in December 2006 was probably never reviewed by a qualified individual, so Nationwide never developed a well informed basis upon which to grant or deny Jack’s claims. Invitations to meet the claimants and their treaters were not responded to. As it was pointed out, the quality of Jack’s treaters and experts and the sworn testimony of their strong findings, combined with the
neuroradiology, demonstrated so many substantial abnormalities that are classic for traumatic brain injury victims that the coverage could not be denied in light of the well substantiated proof of damages in excess of limits.

As counsel stated to Nationwide, because everything that could be possibly needed to resolve the case for the policy limits had been provided months earlier, Nationwide’s intransigence created a real fear that it would withhold coverage indefinitely. To further diminish any feelings or arguments regarding excess damages not having been adequately documented, counsel additionally presented a video settlement brochure on DVD. This DVD contained five video
presentations including a profile of the entire case. The profile showed Jack and his wife speaking about their lives and the claimants’ presentations were intermixed with those of the treaters and experts. Introducing the presentation was attorney William L.E. Dussault explaining that Jack could no longer “ethically” practice law as a result of his injuries. Separate video presentations by Jack’s neuropsychologist, neuroradiologist, neurologist, and vocationalist, also set forth the case from their respective perspectives. Underlining all the testimony was the sincerity and effort of Jack in attempting to keep his law practice alive. The pertinent neuroradiology was presented by both Gary Stobbe, MD and neuroradiologist Gary Stimac, MD. The video settlement brochure provided Nationwide a final opportunity to judge the presentability of the claimants and their experts (resumés were provided earlier). Literally, Nationwide got to “see” the brain injury just like a jury would. Terry Tainter was the videographer who filmed and produced the DVD presentations.

Furthermore, counsel provided a comprehensive Life Care Plan prepared by Mary Sussex, MBA, BSN, RN, CCM, LNCC, CNLCP, of Artemis Consulting, Inc., along with a supplemental economic report from Dr. DeKay. The definitive Life Care Plan, the vanishing law practice, and detailed study of Jack’s post-collision earnings (most were due to pre-collision attorney work), allowed Dr. DeKay to project the totality of Jack’s economic losses. Even the most optimistic of three
possible scenarios found Jack’s economic losses alone to be in excess of the policy limits available. Also supplied was a sworn statement by one of Jack’s former law partners confirming that Jack had to withdraw from the partnership due to his brain injuries. This was the third settlement brochure presentation which completed the progressive reserve setting process. It was believed that the case should have resolved earlier and the tension created by the delay and greater
(and unnecessary) forensic costs became the momentum for setting a firm deadline for resolution. Better stated, with extra- contractual relief via R-67 now at issue, if the deadline was not met, then a much focused opportunity for a “showdown” was now available and well defined.

The “theory” of the applicability of the Insurance Fair Conduct Act to this UIM/Umbrella claim setting was that it would be “unreasonable” and a violation of the intent of the legislation for a clear liability, well- documented UIM claim with damages exceeding coverage to be continually delayed and thereby denied. Alternatively, a number of WAC rules listed in the statute were felt to be violated and such provided an independent basis for R-67 relief. While a similar take on
R-67 regarding evaluations not clearly reaching limits (a difference of opinion over value that is not of “limits” proportions) might not be as forensically maintainable, the payment of limits, when not to honor such would be unreasonable, is a proper application of R-67 in the UIM/UM claim setting. Other proper uses of R-67 in an UIM/UM scenario might be where institutional and unreasonable steps are taken by the carrier. A good example would be the application of
Colossus computer program analyses or similar wide sweep analyses to this first-party claim context where quasi-fiduciary obligations are owed. What needs to be appreciated is that Nationwide felt the additional pressure and it promptly resolved Jack’s first-party claim for the combined limits of $1.5 million dollars available before the 20-day notice period expired. If it would have without the additional influence of R-67 or how much longer it might have delayed its decision is not known. Nationwide was considering the claim the entire time (it never tendered a lower offer or evaluation). Questionable IME
examiners and other experts were not interjected. Nationwide hired competent counsel, and with the additional exposure of R-67, it moved expeditiously to a prompt and full dollar claim resolution. R-67 appeared to achieve its purpose and further delay (a form of denial) was prevented. Accordingly, the formal notice of claim violations will be withdrawn from the Office of the Insurance Commissioner. Jack is appreciative of his carrier’s prompt response to his R-67 Notice and
now must adjust to a different life. A life which finds him not practicing the profession that he loved and otherwise saddled with a disability that requires a good deal of accommodation. His treatment team will continue to work with him and his wife as they move through this difficult transition period. One very positive outgrowth of treatment is that both are moving in step and upon an informed basis and, therefore, the relationship is an asset in the coping process as opposed
to a victim of its consequences.

Original Publication Date: April 2008
Volume: 43-8
Author: Michael E. Nelson
Categories: Brain Damage, Insurance Law, Disability, Photograph/

Great article on Yahoo News

Brain Injuries: Solving the Puzzle of Uncertain Recoveries http://news.yahoo.com/s/livescience/20110118/sc_livescience/braininjuriessolvingthepuzzleofuncertainrecoveries

Sketches, photographs and witness information are relied upon to help people visualize
the events at the scene of an accident. Technological developments in the system of
photographing and computer mapping make it possible to superimpose the events and
setting.

The use of this technology requires composites of all the photographs from a scene
and millions of measurements. You can move through the entire accident scene in
3D and see exactly what the participants on the date of the accident would have seen
because the photographs, the circumstances and the terrain are exactly the same. With
this technology, you could click on two points on the computer screen and the
computer would give you the measurement of whatever you were clicking on such as
a snowmobile, a person, or a tree- within a tenth of an inch accuracy. Based on the
testimony of the witnesses, a very precise simulation can recreate what happened on the
date of the accident. By seeing the events unfold before your eyes in a time-controlled
manner it is much easier to determine who was at fault and why.

The use of this technology is especially important in helping provide visualization for
people to understand what happened in a particular instance. This a much more effective
than using a reconstructionist to look at all the physical evidence and tell you what they
think may have happened. To be able to view the events through the computer simulation
allows one to actually see what happened. Animation presents a similar picture but the human mind is always telling us that a moving cartoon is not real and there is a strong
disconnect between the moving cartoon and reality.

In September 2010 a profound article by Dr. Alisa Dean and Dr. Robert Cantu detailed
the seriousness of sports related concussions in young athletes and revealed that many
significant brain-injury cases for football players had been caused not by the initial
impact, but rather from returning to play too soon after the initial concussion. Known
as Second Impact Syndrome, young athletes, usually 21 years of age or younger, who
return to play before all symptoms have been alleviated run the risk of a subsequent brain
trauma that can be triggered by activity as minor as an elevated heart rate. The brain can
swell and stroke-like symptoms, or the loss of auto regulation, manifest. 50% of patients
who suffer Second Impact Syndrome die and 50% are catastrophically injured. While the
odds are severe, it is 100% preventable.

Two cases that gained notoriety were the Brandon Schultz case in the 1990’s and the
Zackery Lystedt case, which resolved a little over a year ago and became the foundation
for the Lystedt Law. Lystedt Law states that the if there is suspicion of a concussion,
the athlete must be immediately taken out of play and cannot return to play until an
appropriately licensed medical professional authorizes the athlete’s return to play.
Although the law has only been passed in 12 states, many school districts mandate that
parents and students sign a form, which discloses information about Lystedt Law and
how to handle concussions. The research points out that some of these sports-related head
injuries were mischaracterized in the past and the knowledge we continue to gain is how
to take proper precaution when a young athlete suffers a concussion.

“Discretionary clause” is an oxymoron that many insurance companies in the state
of Washington included in their policies as a clause that worked to their benefit. It
empowered the insurance companies with a great deal of discretion as to whether or
not they would pay disability benefits. The insurance companies have been utilizing
this provision to deny people benefits in instances where they are clearly entitled to
them. When people applied for the benefits, the insurance companies that employed
discretionary clauses had complete discretion to deny those in need of disability benefits.

Discretionary clause denies the branch of government that we look to as the neutral
arbitrator of our disputes (the courts) the ability to exercise its own discretion as
to whether or not a proposition is right or wrong. In short, the discretion goes to the other
side and in these cases, always an insurance company.

Nelson Langer Engle decided to take charge of this injustice and went to Olympia
to lobby the Insurance Commissioner to show him where these provisions were in
place. Unaware of these illegal discretionary policies, The Insurance Commissioner
promulgated regulations stating that the use of discretionary clauses are banned in
Washington and will no longer be part of the legal lexicon.

November 29, 2010 – Posted by Anna Mitchell

My son plays football for his high school team.  Recently he collided with another player and I suspect he suffered a concussion.  What should I do?

Concussions are one of the most commonly reported injuries in children and adolescents who participate in athletics.  A concussion is caused by a blow or a motion to the head or body that causes the brain to move rapidly inside the skull.  There are many levels of concussions, and your son does not have to be unconscious to have suffered a concussion.  Catastrophic injuries or death become a significant risk when a concussion is not properly evaluated and managed.  There is an increased risk of damage particularly if an individual suffers successive concussions while still recovering from the first concussion.  Concussion symptoms include, but are not limited to:

• Headaches
• “Pressure in head”
• Nausea or vomiting
• Neck pain
• Balance problems or dizziness
• Blurred, double, or fuzzy vision
• Sensitivity to light or noise
• Feeling sluggish or slowed down
• Feeling foggy or groggy
• Drowsiness
• Change in sleep patterns
• Amnesia
• “Don’t feel right”
• Fatigue or low energy
• Sadness
• Nervousness or anxiety
• Irritability
• More emotional
• Confusion
• Concentration or memory problems (forgetting game plays)
• Repeating the same question/comment

If you suspect that your son has suffered a concussion, take the following steps to ensure his safety.

1. When in doubt, sit them out. If you suspect that your son received a concussion, do not allow him to return to play until you know he is no longer injured.  This means that if you believe he was hurt, do not let him get back in the game, practice or training.
2. Watch your son closely. Closely observe your son for hours after his injury and look for concussion symptoms.
3. Seek medical help. Take your son to the doctor and have him examined.  If your son did suffer a concussion he must receive written clearance from a physician before returning to play to ensure that he has healed from his injuries and that it is safe for him to play.
4. Make sure that his coach is following proper protocol. In lieu of recent laws passed in Washington, namely “Zachery Lystedt Law,” your son’s coach should follow Washington Interscholastic Activities Association (WIAA) guidelines for allowing your son to return to play.  Coaches are required to have injured players sit out until they are healed, and this pertains to both games and practices.  If your son’s coach is encouraging him to practice or play before his injuries are healed, report the coach immediately.

November 19, 2010 – Posted by Sabrina Horne

The Holidays are upon us.  This is a time of joy and giving for most families.  However, let’s also remember that there are many families out there who are struggling to make ends meet or have lost the battle and are now homeless and hungry.  Whenever you see a place to donate food or clothing items, find that giving part of yourself and donate what you can.  We all have our indulgences – myself included – and during this Holiday season when there are so many unemployed and homeless, let’s give up some of those indulgences to help those around us.

While watching TV last night, I saw the newest Toyota commercial where they talked about how they use their technology elsewhere in life outside of the auto industry, for examples, medical industry and in helmet design.  The Advertisement I saw: http://www.youtube.com/watch?v=8k76yeretJQ but more information can be found on Toyota’s website  http://www.toyota.com/ideas-for-good/ideas-made-real/football.html

November 8, 2010 – Posted by G. Thomas Cunningham

The Seattle PI here, http://www.seattlepi.com/local/429482_regence.html, reports that Regence Blue Cross/Blue Shield is requesting an average premium increase of 3.7 percent for individual plans for the New Year.  As the PI pointed out, “that comes on the heels of 16.4 percent rate hike on Oct. 1^st.”  That means that Regence is looking for a 20.1 percent increase in premiums on individual plans.

This comes on the heels of the Washington State Insurance Commissioner taking action against Regence for denying insurance for children.  See http://www.insurance.wa.gov/news/2010/10-15-2010.shtml.

Here at Nelson Langer Engle, we keep abreast of issues related to health insurance, as these issues are very important to our clients, and we do our very best to maximize our client’s access to proper heath care.

November 5, 2010 – Posted by Aaron Engle

The Seattle Seahawks are doing the right thing by sitting Matt Hasselbeck for another week.  It is always better to err on the side of caution when it comes to concussions.  When in doubt, sit them out!

Settletimes.com – Seattle Seahawk Matt Hasselbeck sits out for Sunday game

October 21, 2010 – Posted by Deanna Delisanti

October 1, 2010  -  Posted by Michael Nelson

Auction Season is upon us! We are proudly contributing to and attending this weekend’s Seattle Children’s Autism Guild 2^ndAnnual Gala and Auction.  It will be emceed by Jean Enersen from King TV.  And next weekend we’ll be attending the Brain Injury Association of Washington’s 4^thAnnual Gala and Auction hosted by Honorary Chairman Roger Goodell, NFL Commissioner.  We are proud to make meaningful contributions to these two fine organizations. The precedent-setting football cases which help to attract the likes of the good NFL Commissioner (and he, and the NFL are doing some wonderful things these days) include the Schultz and Lystedt cases.  We were proud to have these clients and their causes in our office, and our gratitude is further extended to all those who help get the word out about the dangers of concussions and return to play standards in youth athletics.

For more about both of these people helping organizations, please visits their websites

http://seattleautismguild.org/

http://www.braininjurywa.org/

I should also thank my wonderful wife for her understanding of the importance of both of these events as they happen to fall on our “number rich” wedding anniversary.

Sue T. took every step to protect her family financially. The Seattle-based political consultant and her husband established a 401(k) and purchased life insurance to safeguard against the unthinkable. They also rested easily knowing the disability insurance provided by Sue’s employer would protect perhaps her most important asset — her ability to earn.

View full article