A Super prognosis for Jim McMahon

Sunday marks the 50th anniversary of the biggest football game of them all:  the Superbowl. In honoring heroes of gridiron's past, ESPN's award-winning 30-for-30 series recently provided a documentary on the winners of Superbowl 20:  the 1985 Chicago Bears.

You know the names. Walter Payton. Refrigerator Perry. Former Razorback and NFL Hall of Famer Dan Hampton. Mike Singletary. Steve McMichael. Willie Gault. I remember Willie Gault being the guy you threw the ball to when you weren't giving it to Bo Jackson on Tecmo Bowl. There was also Gary Fencik. Wilbur Marshall. Dave Duerson. The list goes on and on.

And then there was the QB. The guy who personified the whole team. The sunglasses. The look. The attitude. The "Punky QB." Jim McMahon. The cocky BYU QB gave the Bears offense the balance it needed to win, and win big. I probably haven't told you anything you did not already know (including Willie Gault being the Raiders go-to wide receiver on Tecmo Bowl).

What you may not know is how McMahon's life has been since retiring from football. Over the last few years, several NFL players have been diagnosed with "Chronic Traumatic Encephalitis." The only way to diagnosed the disease is posthumously. Several former players have been diagnosed, such as Frank Gifford and Ken Stabler.

Some players have committed suicide as a result of the symptoms, such as Junior Seau.

"The disease is widely believed to stem from repetitive trauma to the head, and [thought to] lead to conditions such as memory loss, depression and dementia."

McMahon is different. He has experienced the same symptoms of the now deceased ex-NFL players. Through an acquaintance, McMahon received an upright MRI in upstate New York. The doctor "took a closer look at McMahon's neck and found that the top two vertebrae were misaligned, which caused a blockage of his cerebral spinal fluid."

McMahon ended up in a nearby office of a doctor specializing in treating disorders of the upper neck. Once properly adjusted, McMahon described the relief as "a toilet flushing." 

The same cerebral spinal fluid blockage McMahon lived with for so long has been linked to whiplash associated disorders.

In a 2010 study published in the Brain Injury Journal, researchers took 1,200 people and subdivided them into four groups. One subdivision involved non-trauma versus trauma (from motor vehicle collisions). The other subdivision involved an upright versus lying down specialized type of MRI sequence that took place on each individual.

The researchers wanted to know how far the lower brain extended down into the base of the skull in each subgroup. An imaginary line was drawn across the base of the head from which to measure, as seen below:

The findings showed the lower brain in the trauma group to be significantly lower than the lower brain in the upright and lying down MRI groups. This effect was seen 2.5 times more often in the upright trauma group versus the lying trauma group; and seen 4 times more often in either of the non-trauma groups. The authors concluded

“Unless the difference between trauma and non-trauma cases was a result of unforeseen variability, it is reasonable to conclude these results reflect a degree of gravity dependent instability in the trauma group that was not observed in the non-trauma group. It is probable that the differences observed between the study groups were due to the independent variables of interest rather than some unforeseen bias between the groups.”

— Michael D. Freeman, Scott Rosa, David Harshfield, Francis Smith, Robert Bennett, Christopher J. Centeno, Ezriel Kornel, Ake Nystrom, Dan Heffez & Sean S. Kohles, A case-control study of cerebellar tonsillar ectopia (Chiari) and head/neck trauma (whiplash) 24(7-8) Brain Injury 988 (July 2010).

The upright MRI explains the differences between the upright and lying down groups, as well as McMahon finding out what was wrong with him. The authors of the study stated the lower brain extending down into the base of the skull "is due to the fact the flotation level of the brain is dependent on the amount of cerebral spinal fluid within the dural covering of the spine and brain." Crash trauma causing a dural leak could result in a cerebral spinal fluid leak and lowered pressure," resulting in the lower brain causing a cerebral spinal fluid blockage at the base of the skull.

McMahon had this to say about the problems facing former NFL players:  "Let's raise the awareness about this problem. I wish they had figured out what was wrong with me sooner, but at least I got some help. Let's help others out there and let's deal with the problem."

The same could be said of injury victims in car wrecks. The 30-for-30 documentary on the '85 Bears premiered on February 4, 2016. It had a segment discussing McMahon's journey after football. Watch this segment as well as the rest of the documentary about "the Superbowl Shuffling" Bears.

Sebastian County jury tells State Farm safety rules matter

Don and Taylor spent the week of December 1-4, 2015 in Fort Smith trying a motor vehicle collision case. It was a classic example of an insurance company hiding behind their insured. The wreck happened after our client dropped her son off at a Boys and Girls Club in Fort Smith.

She was headed home with her daughter when another vehicle hit them in the middle of their van on the passenger’s side. An elderly State Farm insured did not look to his left before pulling out of the parking lot of a barber shop. The elderly State Farm insured admitted to violating the safety rule to pay attention.

The collision threw our client toward the point of impact. Her torso got caught in the seat belt. This caused an aggravation of a pre-existing back condition that had given her no pain in over a decade.

Our client reported back pain to the police officer who responded to the scene. Our client's pain intensified overnight and she went to the ER the next day. The ER found degenerative changes in her back; told her she would probably be a little stiff; prescribed anti-inflammatories and muscle relaxers; and told her she would probably be fine in a few weeks. Our client took the medication. A few weeks passed. Her pain returned and worsened. She also starting having mild incontinence.

Seven months before the wreck she had seen a chiropractic physician for mild neck pain. So she went back to him three months after the wreck. Her chiropractic physician sent her to the ER on her very first visit. The same degenerative changes were found at the ER as three months beforehand. The most noticeable of these changes were at the same level our client had an old work injury in 1995. Her incontinence problems worsened. She began seeing her family doctor. This resulted in a referral chain to a neurosurgeon; a pain management specialist; a urologist; and a gastroenterologist. Our client also had neck injuries from the wreck. These injuries resulted in a 23% whole person impairment rating.

Before the wreck our client was a hard-working mother of seven adopted children. She took pride in being a big woman. She also coached her children's sports teams; drove and maintained a school bus; enjoyed being a substitute teacher; took occasional family vacations to Ohio and other locations; enjoyed attending her children's sporting events; and kept an orderly home while cooking and cleaning everyday for her family. After the wreck, she began having "accidents" in public. These "accidents" were caused by her incontinence problems. They not only embarrassed her, but also her children and anyone else with her at the time they happened. She learned to avoid "accidents" by not eating. As a result, she lost a significant amount of weight. This negatively affected her self-esteem. A nerve stretch injury was diagnosed in her low back as a result of the wreck. This kept her from being able to sit or stand for long periods of time. The nerve stretch injury eliminated her ability to watch her children's sporting events the way she could before the wreck.

It forced her to quit coaching. It stopped her from adopting a sibling of her other children. It forced others to pick up the physical tasks required of a mother and wife. Our client's dream was to become a full-time teacher of at-risk junior high children. She went back to school after the wreck to become certified. However, her injuries from the wreck forced her to give up this dream. Her only way of being gainfully employed after the wreck was to have an understanding supervisor. She worked several jobs where her supervisor allowed her to take unscheduled breaks as a result of "accidents."

Our client incurred a little under $40,000 in medical expenses when the trial began. She sustained injuries in the wreck that will be with her for as long as she lives. The most State Farm offered was $11,500 despite their elderly insured having only $25,000 in coverage. This is the minimum amount required by state law. State Farm's low ball offer left our client with no choice but to try her case to a jury of her peers. State Farm relied on the jury to give their elderly insured a pass. They counted on the jury to disregard the traffic safety rules that keep us all safe from danger.

Instead, the jury enforced the safety rules. They returned a verdict of $84,500. Clearly, the jury cared much more about the safety of their community than State Farm. The jury cared about a safety rule violation leading to a teacher who could no longer help kids nobody else wanted. The jury cared about a wife who could not help her husband make ends meet as she did before the wreck. They cared about a mom who is less of a mother to her children. They cared about a member of the community who is embarrassed about the person she has become. They cared about protecting the life of one of their own.

What does State Farm care about? They tried to hide behind their insured and get away with it. They also helped sponsor tort-reform legislation during the regular session of the 90th General Assembly in 2015. This legislation would have required injured Arkansans to receive no benefit for the premium dollars paid to their own automobile insurance companies. State Farm cares much more about their own profits than taking care of the people of Arkansas. Does that sound "like a good neighbor"?

MRIs in motion show what happens on the inside

I've previously written on the benefit of MRIs taken under real-world conditions, where the patient is sitting or standing upright during the MRI. These types of MRIs are invaluable for explaining why some patients experience certain types of pain patterns, even when recumbent (lying down) MRIs can't always explain pain.

Here's an interesting video compilation of MRIs images set to motion (warning — brief clip of sexually explicit content):

Insurer called out for bogus "not medically necessary" claim denial

When an insurance company decides it doesn't want to pay a claim, it is required by law in most states to give a legitimate reason. If it doesn't give a reasonable explanation or doesn't have a legitimate reason, the insurance company can be liable for bad faith. 

One way insurance companies try to boost profits and get around these requirements is to claim that certain treatments are "not medically necessary." An extreme example aired on The Today Show several years ago: 

Here are some of the facts from the show:

• A man and his sister had the same health insurance company, United Healthcare

• The man and his sister had same life-threatening disease, cystic fibrosis, and the same mutation of that disease

• The man and his sister had the same doctor

• The doctor for the man and his sister wrote an identical letter to United Healthcare asking it to pay for a new, life-saving medication for cystic fibrosis, which costs $25,000/month

United Healthcare approved the claim for the sister, but denied the claim for the brother as "not medically necessary." For over a year, the man's health declined, while his sister's improved. As The Today Show prepared to air a segment on the man's fight for life against United Healthcare, the show's producers called to ask for a comment by United Healthcare. The response? A complete change in position, so they wouldn't look quite as bad on national television.

Kevin and Katie Dwyer's case shows just how arbitrary insurance companies can be. But most folks aren't going to receive help from The Today Show to make their own insurance company do the right thing. In a country where we are required by law to buy car and health insurance or get hit with severe economic penalties, it is unfair for insurance companies to get away so often with such arbitrary conduct.

Here at the Chaney Law Firm, we see "not medically necessary" claim denials all the time. It is a method insurance companies use to boost profits, often at the expense of their own policyholders. As one example, one car insurance company denied payments for computerized radiographic mensuration analysis (CRMA) services by a medical doctor in Texarkana based upon reports by two chiropractors in Washington State and Georgia. The medical doctor objected to the Washington and Georgia chiropractic boards and the insurance company, but the insurance company wouldn't change its position. In another example from one of our cases, a carrier has a general business practice of capping claim payouts on PIP claims by setting an arbitrary number of treatments for their own policyholders. If the number of treatments exceeds the arbitrary number, the claim is sent to a physician reviewer (most likely in another state) to provide a sham report for the carrier to rely on in underpaying the claim.

These example reflect a common practice; in many instances, the insurance company will attach a boilerplate report from a medical reviewer who lives many states away and who does not know the standards of practice here at home. Another example is when insurance companies hire the same experts here in Arkansas repeatedly because they always issue the same boilerplate reports in favor of the insurance company. You can read more about these so-called "medical reviewers" and their predictable opinions here.

If you've been told by an insurance company your treatment is not medically necessary, you have rights. You can appeal the insurance company's decision, take your case to the Insurance Commissioner for help, or hire an attorney to help you with the process. We provide free consultations and would be happy to see if we can help. 

Chaney Firm verdict upheld on appeal

I argued a case to the Eighth Circuit Court of Appeals in January (here's an earlier report on the argument). We tried the case in January 2012 in federal court in Hot Springs and received a nice verdict for our client. We're pleased that the Eighth Circuit agreed with us and allowed the verdict to stand. The Court's decision is posted here.

One issue on appeal dealt with the routine use of medical visual aids based upon CRMA, digitized x-rays, and proton density MRIs. The defense claimed that the visual aids were misleading and were used as actual evidence, rather than illustrations to help doctors testify about injuries to specific body parts. The Court held that the medical illustrations were not misleading because a doctor testified that they were accurate and helped him teach the jury about complex medical issues.

The other main issue on appeal was a procedural question concerning two professional defense witnesses that were excluded; the defense tried to call these new experts at the last minute because its original expert's theory of degeneration did not hold up under cross-examination. When the trial judge didn't let them call new witnesses, they changed tactics and tried to claim they needed the new experts because they were surprised by what our client's doctors had to say. The trial judge saw through this charade. On appeal, the defense claimed that our client's doctors should have been excluded. The appeals court rejected the surprise argument, as the defense had all the relevant medical records, had received a summary of the anticipated testimony, and never took depositions of the doctors.

We're pleased to have obtained a good result for a deserving client. 

Cite: Bradshaw v. FFE Trans. Servs., Inc., 715 F.3d 1104 (8th Cir. June 3, 2013).