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BEFORE THE BOARD OF INDUSTRIAL INSURANCE APPEALS
STATE OF WASHINGTON

IN RE: JERRY WUNSCH .) DOCKET NO. 15 20588

CLAIM NO. PROPOSED DECISION AND ORDER

 

Michael P. Ryan, Industrial Appeals Judge Claimant appealed an order denying his
worker's compensation claim. The sole issue was allowance as an occupational disease per
RCW 51.08.140. The claimant is a retired professional football player; he played offensive line and
on special teams.

Claimant's testifying physicians relied upon, in part, medical imaging to substantiate his
various physical ailments; his reports of cognitive decline were supported by 
testing and an MRI using specialized software.

Employer's testifying physicians concluded none of the claimant's physical or mental
conditions were occupational diseases because there were no medical records documenting his
in the years he played professional football or in the few years immediately following, or
that his job duties did not meet definitions stated by the American Medical Association concerning
occupational disease, or that he was exaggerating or feigning his either due to
inappropriate responses to questions or lack of effort in physical exams.

The order is incorrect and is reversed and remanded, with direction to the Department to issue
an order directing the self-insured employer to allow the claim as an occupational disease.

DISCUSSION

Andrew 0. Schreiber, MD, is board certified in adult neurology; he graduated from medical
school in 1979. His practice is roughly 50Ipercent legal consuNations/evaluations and 50 percent
treatment and research. Of his legal work,-about half his work is for the defense and half his work is
for the plaintiff. He testi?ed his area of expertise is head trauma.

Dr. Schreiber examined the claimant on_August 4, 2010, as part of an agreed upon exam; he
was asked to make a diagnosis and prepare a report. He diagnosed the claimant with:

(1) closed head trauma with complete loss of consciousness and concussion with post
concussive 

(2) temporomandibular joint dysfunction bilaterally

(3) chronic cervical sprain, rule out radicuiopathy

(4) headaches, secondary to diagnoses one to three

(5) rule out obstructive sleep apnea

(6) sleep disturbances secondary to one to ?ve

(7) possible cubital tunnel bilaterally, defer to orthopedics.

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All seven diagnoses were more likely than not related to head trauma the claimant suffered in the
course of his job duties with the Seahawks'. The sleep apnea was later con?rmed in 2012.
Dr. Schreiber also believed that the body weight and size a player must keep in order to perform his
job contributed to the claimant's diagnoses. The biggest factorin the claimant's history that led to
Dr. Schreiber's diagnoses is the cumulative nature of the trauma suffered.

In his report, Dr. Schreiber requested additional testing for the claimant: a brain MRI, a formal
sleep study and an EMG/nerve conduction test of the upper and lower limbs. Signi?cant history
included a signi?cant number of blows to the head with alteration and loss of consciousness reported
by the claimant.

Dr. Schreiber did not see any documentation that the claimant was evaluated for head trauma -
at any point in his NFL career. In his experience it is 'nOt uncommon that most head trauma type
injuries are not well documented in football player histories; the lack of documentation was a bigger .
problem 20 years ago, but he believed that most grade one concussions were not documented. His
experience is that players want to keep'playing and do not want to lose their position. The claimant
reported to Dr. Schreiber that if he suffered an injury while playing he would just shake it off.

Claimant played in the NFL from 1997 to 2005 as a lineman and was also on the kickoff return
team. Between 2002 and 2005 the' claimant suffered at least two grade three concussions from
helmet-to-helmet contact which were followed by typical concussion-type Prior to the
NFL, the claimant report two minor incidents from college, that Dr. Schreiber classi?ed as grade one
concussions.

Concussions are graded. A grade one concussion is what players referred to has getting a
'ding' or 'having their bell rung'. are being dazed or stunned, there may be some other
such as headache, ringing in the _ear, being off balance, and dif?culty thinking; but
typically resolve in 15 to 20 seconds; so a player is often ready to play the next play. A
grade two concussion is like a grade one, but it takes several minutes to resolve. A scenario where
a player does not remember playing the second half of a game is a good example. A grade three
concussion is loss of consciousness. Typically these are easy to spot because a player is helped off
the ground and escorted off the ?eld.

I The constellation of from post-concussive is fairly uniform between
people. These include visual impairments, headaches, dif?culty sleeping, memory problems,
executive function, decision making, attention, altered mood; Dr. Schreiber testified these 

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are fairly standard across different age groups and fairly easy to recognize football players, especially
those with a history of head traumas. Headaches are probably the most common.

from post-concussion normally develop within a day or two of the
concussion. If there is a delay, typically the delay in development of is a few weeks.
Generally speaking, once the develop, the gradually improve over time. Ifa
patient had that were getting worse years after suffering a concussion, it would suggest
there was another cause for the 

Dr. Schreiber also testi?ed that an MRI of the brain in concussion would be normal. Therefore,
an MRI with no significant ?ndings would not alter his diagnosis. Nerve conduction studies from
around 2011 did not ?nd any abnormalities

From a physician's standpoint, one position in football is not more dangerous than another.
Linemen have more mass and more frequent head-to-head contact but each impact has less velocity
when compared to a defensive back. Dr. Schreiber did attach signi?cance to special teams because
even the lineman can generate much greater velocity so there is additional risk. The claimant
described some speci?c incidents where he suffered a concussion during . kickoff return.
Dr. Schreiber calculated that the claimant likely suffered about 100 grade one concussions per year;
he calculated about four per game and two per practice in reaching his ?gure of 100; his calculations
were based on what he was told by the claimant. -

Jeffrey D. Watson, MD, is an orthopedic surgeon, board certi?ed in general orthopedics. He
has a general practice; many of his patients are athletes. He regularly sees professional athletes,
including football players, in his practice. His typical week is three days of of?ce visits and two days
of surgery. The claimant became a patient on January 27, 2015?; he was 6 feet 6 inches and 398
pounds. Prior to becoming a patient, Dr. Watson had met the claimant on several occasions at social
events and-charitable events. Dr. Watson had no record indicating that claimant had any traumatic
injuries prior to playing professional football.

On the initial visit, the claimant listed too many issues to discuss in one visit, so the focus was
on the lower extremity. Notable were systemic problems that contributed to the claimant's
musculoskeletal issues: Crohn's disease, an autoimmune disorder and ?bromyalgia; Dr. Watson did
not review medical records documenting these diagnoses; he was only told by his patient that these

1 The deposition transcript states 2013 but also that Mr. Wunsch was 41; further, in light of the subsequent testimony,
2015 is the correct year.

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were some of his conditions. X?rays showed the beginnings of arthritis in his ankles, arthritis in his
knees, chronic high ankle sprains. Dr. Watson diagnosed these conditions as well as bilateral foot
pain.

The next patient visit on January 30, 2015 focused on the neck, back and left hip. An' EMG
showed the claimant had carpal tunnel cubital tunnel and nerve injuries/damage
to both his upper and lower extremities. X-rays showed degenerative changes in the cervical Spine
at 05-6 and 06-7, degenerative changes of the lumbar spine and degenerative changes in his left
hip. An MRI showed a labral tear in his hip.

Dr. Watson diagnosed:

(1) cervical degenerative disc disease

(2) lumbar degenerative disc disease

(3) left hip labral tear

(4) right carpal tunnel 

(5) right cubital tunnel 

(6) bilateral absent nerve responses in lower extremities.

The cause of the absent bilateral nerve responses is either from surgical treatment to his ankles or
from the injury itself. A subsequent con?rmed foraminal stenosis at 05-6 and 06?7 on both
sides; in lay terms, the claimant had an arthritic neck that was atypical for his age. Claimant confirmed
to Dr. Watson that he tore his left labrum on a speci?c play while in the NFL. Dr. Watson testi?ed
that the claimant continuing to play professional football aggravated his left hip labral tear. The
bilateral leg issues were related to playing football in that he suffered chronic ankle sprains as well
as surgeries as a result. The arthritic conditions were likewise aggravated by playing professional
football; claimant's arthritic neck condition was multifactoral, but based on the amount of arthritis in
the neck it is most likely related to his physical activities as a professional football player. Dr. Watson
testi?ed that on every play there is trauma which causes damage to the joints, including the spine;
this is repetitive trauma as opposed to a trauma in the sense that it requires immediate medical
a?en?on.

The third patient visit on February 3, 2015; the focus was his elbow and wrists. Dr. Watson
diagnosed right elbow arthritis and right wrist injuries. On a subsequent visit in July of 2015, after
examination the diagnosis of triceps tendonosis was added. The right elbow arthritis was a result of

the claimant playing professional football in that the damage was suffered by playing and was

aggravated by continuing to play.

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Dr. Watson testi?ed there is not a reasonable explanation for all of claimant's conditions
diagnosed by Dr. Watson other than being a result of claimant's time as a professional football player.
Even though weight and obesity is a factor in developing arthritis, claimant's arthritic condition was
atypical for a 41 year-old male.

Jeffery Fitzhum, DC, MD, is board certi?ed in physical medicine and rehabilitation; he has
been a physiatrist since 1993; his career has been devoted to pain management. He did a forensic
exam for the claimant on August 11, 2016, at claimant's request. The interview and physical exam
lasted about three hours; the record review and report writing took about 30 hours. He does not
follow football.

Dr. Fitzhum diagnosed:

(1) mechanical neck pain, probably facetogenic arising from 05-6 and level
(2) mechanical facetogenic low back pain

(3) labral tear left hip

(4) tibiotalar osteoarthritis right ankle and foot

(5) multi-compartmental moderate to severe osteoarthritis right elbow.

Each diagnosis was either proximately caused or aggravated by the claimant playing professional
football, including time spent with the Seahawks. The distinctive condition of employment considered
by Dr. Fitzhum is that he could not think of any other job where there is frequent high force bodily
impaCts, save a professional mixed martial artist.

Claimant was born in 1974; he reported his health concerns, in order of greatest to least
concern, were: cognitive de?cits, mood and behavior issues, pain, vertigo and balance problems and
loss of sensation in his legs. Dr. Fitzhum was asked to focus on pain and orthopedic concerns.
Orthopedic issues claimant reported as related to football, again in order greatest to least concern:
neck pain, low back pain, left hip, right ankle, right elbow and joints in general.

By history, claimant played college football, then professional football from 1997 to 2005; in
2005 he was released by the Seattle Seahawks. He had been diagnosed with Crohn's disease, had
a history of gastroesophageal re?ux disease (GERD), hiatal hernia, anal ?stula, hypogondasim (low
testosterone), and sleep apnea. A 901?. CT scan showed diverticulosis and an FGD (scope of the
upper stomach) in 2011 showed esophagitis. Medical records documented four surgeries on his right
elbow, two surgeries on his right ankle and foot, and a surgery to lengthen his Achilles tendon on
each leg. Left elbow sprain was noted from 1997, left knee sprain was noted from 1997, 1998, 1999,
and 2000. Patellofemoral chondral was diagnosed in 1999. The claimant reported

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ongoing joint pain, bUt when this pain started was not speci?cally documented by Dr. Fitzhum.
Claimant was believed to be pre-diabetic, butjoint pain is not a typical condition for a diabetic.

Dr. Fitzhum also reviewed medical images and reports, as well as testing results. In comparing
a 1998 cervical MRI with MRIs from 2014 and 2015, Dr. Fitzhum noted a signi?cant pathological
change. The 1998 MRI was essentially normal whereas the later'MRls showed moderate foraminal
stenosis at 05-6 and 06-7. A lumbar MRI from 2001 was compared to a lumbar MRI from 2014;
changes were noted, but not as signi?cant when compared to the cervical spine. A 2003 left hip MRI
showed a minimally-displaced Iabral tear, partial thickness tear-and left iliofemoral ligament tear; a
2011 MRI was not done with contrast, and- shows no evidence of internal derangement, but if the
issue is a Iabral tear, then Dr. Fitzhum testi?ed contrast is needed. MRIs of the right foot and ankle
from 2003 and 2005 showed a signi?cant progression with respect to the peroneus muscle, which is
the muscle that helps prevent ankle sprains. A 2005 CT of the right elbow shows signi?cant
osteoarthritis. An EMG from 2011 was essentially normal whereas an EMG from 2014 showed right
carpal tunnel right cubital tunnel absent sural nerve, bilateral superficial
peroneal nerves and bilateral plantar nerves. Dr. Fitzhum did not try to get any of the original imaging
or test results and he did not?contact any previous treating medical providers or anyone associated
with the Seahawks.

Dr. Fitzhum related each of his diagnoses to claimant's time as a professional football player
and the distinctive conditions thereto. His conditions were also aggravated by continuing to play
football. The neck condition: MRIs show a clear change in anatomy, he has signi?cant neck pain and
loss of range of motion that does not develop with age in a young middle?age person; frequent high
impact from playing football bears directly on his neck pain and nothing else in his history suggests
another cause. Low back condition: comparison of from 2001 to 2014 shows progression of
anatomical changes, but of significance is the synovial cyst, which is not common, and suggests
repeated mechanical stress through his facet joints and the lack of any other injury to the low back;
he could not say the low back arthritis was related to playing football. Left hip: despite being not as
familiar with Iabral tears of the hip, in the absence of any other injury of forceful nature, the tear
derives from unusual forces in the hip, with such force presumably happening while playing football;
this injury happened on a speci?c play. Right ankle: is fairly straightfonrvard because multiple injuries
are documented as a result of playing football. Right elbow: multiple injuries to his right elbow

happened while playing professional football.

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that provides evaluation and treatment recommendations. He diagnosed:

NeuroQuant, which revealed the claimant's hippocampal volume was greater than two standard

deviations below average; stated another way, over 95 percent of the adult population has a bigger

depression and anxiety. Claimant had reported to Dr. Russman four specific incidents that were
concussive incidents; upon further inquisition by Dr. Russman, he was told about lots of episodes,

but whether these were concussive or subconcussive incidents, and when they occurred, was not
?ushed out. All four conCussive incidents were reported to have occurred while playing professional
football.

 

Andrew Russman, D.0., is board certi?ed in neurology and.in the subspecialties of vascular

neurology and brain injury medicine; he graduated from medical school in 2001. 90 percent of his

practice is clinical, 10 percent is research and administrative. His research is associated with post-

concussion assessment. About 25 percent of his practice is taking care of patients with brain injuries. i
He has been with the Cleveland Clinic since 2012. 

Dr. Russman saw the claimant twice; once on July 22, 2014 and then on September 19, 2016.

The claimant saw Dr. Russman as part of a program associated with the NFL Players Association

(1) post-concussion 

(2) facial ?ushing;

(3) lumbosacral facet joint 

(4) cervical facet joint 

(5) cervicalgia;

(6) lumbago;

(7) chronic daily headaches;

(8) chronic migraine without aura with some intractable migraines associates without mention
of status migrainosus;

(9) bilateral occipital neurologia;

(10) cervicogenic headache;

(11) peripheral neuropathy;

(12) obstructive sleep apnea.

Of particular importance is a July 2014 MRI that was reassessed using special software,

 

hippocampus than the claimant.

This imaging result was consistent with prior testing that showed

impairment to memory function, information processing speed, and aspects of executive function. I
Dr. Russman believed the claimant had a neurocognitive disorder secondary to his history of.

repeated head trauma, but with likely ongoing contribution from other factors such as sleep apnea, -

 

Page 7 of 49



 

In diagnosing post-concussion reporting by the patients plays a signi?cant role in
the diagnosis. Typically of post-concussive manifest within hours or days of a-
concussive event. It is not rare for to present within a few days folloWing a concussive
event and then persist for long periods of time; the other issue is how accumulated subconcussive
events impact the brain as far as onset and trajectory; this interplay with subconcussive
impact is not well understood, so there is no speci?c pattern in which subconcussive or repetitive.
impacts eventually result in the onset of 

Some people with postconcussion have brain imaging abnormalities that are directly
attributable to trauma. In these cases, it is pertinent to evaluating the issues a patient is experiencing.
The claimant's brain images presents such a case.

While there are other causes for a low hippocampal volume, these other causes were not
present to Dr. Russman's knowledge. For example, he may just have low volume, but without a
baseline to compare, this is unknown. Brain in?ammatory disorders, encephalitis, memory disorders
that are familial, neurodegenerative disorder from a 'wide variety of causes can also cause low
hippocampal volume; none of these alternative explanations were present.

Richard A. Hoffman, has been a clinical since 1977; he is board certi?ed

in His practice focuses on identifying functional de?cits in cognitive abilities. About

80 percent of the people he sees are to evaluate the effects of an illness or injury;
20 percent is clinical treatment. Neurologists are his biggest referral source. His practice is oriented
towards comprehensive evaluations. The initial history taken from a subject
takes. about 90 minutes and the testing itself takes nine to twelve hours and is done over two days.
In the course of his career Dr. Hoffman has administered over a thousand tests.

The claimant was seen on May 6th and 7th of 2015. He was given a total of 23
tests. The purpose was to assess Whether a series of minor concussions which
he was alleging would have resulted, or resulted, in a decline which would be considered a
reasonable estimate of his premorbid cognitive higher cortical functioning. The diagnostic impression
was "neurocognitive disorder-dementia due to head trauma."

Dr. Hoffman testi?ed that the series of minor concussions sustained by the claimant in the
course of his professional football career was a major contributing cause to his current cognitive

- functioning and his overall status; alternative explanations were ruled out. The claimant was not a

player whom rarely played; he had an active role on his teams during the course of his career.

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Dr. Hoffman admitted he did not see any records from trainers or physicians from the time the
claimant played professional football. The history of concussions and impacts to the head was taken
solely from the claimant's self report; there were no medical records documenting concussion.
Further, Dr. Hoffman's understanding was that players, during the years claimant played, did not
report minor concussive events, referred to as "dings". The claimant reported he became aware of
his cognitive decline several years after leaving professional football.

A concept well recognized in the field of is that cognitive reserve is
increasingly exhausted with each successive head injury; as the reserve is exhausted, more modest
injuries can have increasingly signi?cant effects. Given the history reported by the claimant, this

concept is directly applicable to the claimant's diagnosis.

By way of history from intake; the claimant reported in recent years he was having memory
problems, becoming confused, and his functioning had noticeably declined. He had a plethora of
physical injuries common to football players. He denied ever being knocked out completely, but he
described a variety of incidents that he referred to as being "dinged". The only prior 
treatment was some marital counseling. He was noted to be an only child and have a very supportive
mother and father. He had three school aged children, all of whom he was very proud of and felt
they were all thriving; his primary concern was their well-being. After his professional football career
ended he went into business doing construction projects, including commercial estate, and was
involved in a business selling health insurance credit cards; this was significant because, as
described, were somewhat complex activities, and re?ected his level of cognitive ability while playing
football and the initial periods thereafter.

The tests given to the claimant, in lay terms, evaluate his global intellectual
functioning. Dr. Hoffman admitted that a person in pain, or with chronic pain, may have lower scores;
depression may lower the scores as well. The tests he administered look at his ability to rapidly
process information, sustain attention, ability to handle language oriented tasks, his ability to
communicate and understand basic information, his ability to deal with abstract concepts; also, visual
spatial skills including his ability to manipulate visual patterns; memory functions; his cognitive
flexibility and executive decision making. Each test is sensitive to a different part of the brain. Each
test used by Dr. Hoffman is well-established and well researched and frequently employed in his ?eld I
of He also took a personality test which revealed the claimant is extremely.

Page 9 of 49

 



 

concerned about his physical status and health, and has some depression. Another test he was
given evaluates whether his pain complaints are genuine; tests results indicate they are.

Some tests are designed to evaluate Whether an examinee is putting forth sufficient effort;
claimant's test results concerning effort level were within normal limits. Dr. Hoffman also made an
estimate of the claimant's cognitive functioning prior to the testing. What he looked at was grade
point average (provided by a transcript), A.C.T. scores (a college entrance exam), some vocational

history and a test that is part of the testing used to estimate premorbid cognitive

functioning. In evaluating these factors prior to any cognitive decline, the claimant was deemed to

be near the top of the average range, bordering on the above average; that is he was in the 50?h to
80?h percentile before his decline.

The claimant's working memory, which is very short-term memory, was in the 13th percentile
and his processing speed was in the percentile when compared to the population as a whole.
These scores indicate impairment. In Dr. Hoffman's opinion,-it is not reasonable to consider that a
person would have done reasonably well in college with such low short-term memory on processing
speeds. The test results showed a moderate to severe impairment to his memory.

Testing of attention and concentration in virtually every test given returned scores indicating
the claimant was moderate to severely impaired; meaning in the 8th percentile, that is, 92 percent of
the adult population performs these functions at a higher level. in a few of these tests he was within
normal limits. Of particular note to Dr. Hoffman was that of those tests in this area that were within
normal limits, none had a time limit; this reinforced Dr. Hoffman's opinion that the rate at which the
claimant processes information is impaired. Executive functioning tests put the claimant in the 2nd
percentile; this is concept formation, abstract reasoning, ability to avoid confusion, ability to focus on
rapidly presented material.

The visual perception tests were normal. Tests evaluating his ability to identify objects by
touch were normal. His concrete language skills were normal as was his ability to communicate; but
as the tests got more abstract, the claimant had more difficulty, especially if there was a component
tied to pace of thought process. The totality of the test results were scored, and the claimant was 1.7
to 1.8 standard deviations below his expected premorbid level of functioning; in lay terms, the
claimant's cognitive function was in the 8th percentile.

In Dr. Hoffman's opinion, the claimant's diagnosis is similar to that of dementia pugilistica or
both of which are well documented in medical literature. In those conditions,

Page 10 of 49

 




 

a boxer is often jabbed in the head and often is not knocked out, but only momentarily dazed and
confused; the claimant described this momentary daze as being "dinged". A boxer may appear
reasonably good initially after retirement, but 10 to 15 years later, they are diagnosed with dementia.

David J. Becker, MD, is board certi?ed in internal medicine and gastroenterology. He
graduated from medical school in 1983. On a typical day he will do both of?ce visits and perform
procedures on patients; he has a full time medical practice. He diagnosed the claimant with Crohn's
disease.

The claimant ?rst became his patient on October 2, 2009; Dr. Becker is unsure how the
claimant was referred to him. The claimant came to him concerned with frequent loose bowel
movements, up to 12 a day and blood in his bowel movements, often watery; these issues were
characterized as long standing and chronic. He also reported some nausea, some sweats and eating
made his worse.

A CT scan was ordered on this ?rst medical appointment and it showed the claimant had
swollen nodes in the lower abdomen, intestinal wall thickening in the last part of his ileum and

the ?rst part of his colon. A colonoscopy was then done on October 13, 2009, which showed

ulcerations of his ileocecal valve and inflammation on the left side of his colon. This was consistent
with Crohn's disease. A diagnosis of Crohn's requires a consistent set of bloody diarrhea,
usually followed by a positive visual on a colonoscopy that shows redness and inflammation,
sometimes ulcerations are seen. Dr. Becker testified-that a diagnosis of Crohn's is often delayed if a
person sees a family practitioner or general internist; the clinical picture in early stages can be
confusing and tend to wax and wane so the are often attributed to an infectious
process and considerable time can pass before appropriate diagnostic testing is done. Crohn's is a
lifetime diagnosis; there is no known cure.

The claimant then had blood work done and discussed the results with Dr. Becker in November
2009. The purpose of the blood work was to con?rm the diagnosis of Crohn's. The claimant hadan
antibody present indicating he had Crohn's; out of four possible Crohn's markers, only one was
present. More positive test results increases the con?dence of the diagnosis. Some people can have?
the antibody found in the claimant and not have Crohn's and vice versa. The presence of the antibody
with other clinical and diagnostic ?ndings that were present in the claimant's case con?rmed the
diagnosis for Dr. Becker. Claimant had also been on medications speci?cally designed for Crohn's
and had responded well; this provided additional con?rmation of the diagnosis.

Page 11 of 49

 







 

Dr. Becker then treated the claimant for Crohn's from 2009 to 2014; the claimant responded
reasonably well to the treatments. In 2014 medications were changed and the claimant had some
additional diagnoses from a rheumatologist including ?bromyalgia and autoimmune in?ammatory
arthritis; both can be related to Crohn's. From 2009 to 2014, Dr. Becker characterized the claimant's
as waxing and waning; which is typical. The last time he saw the claimant was in February
of 201 6; at the time the claimant was not being aetively treated for Crohn's and no future appointments
were scheduled. An endoscopic evaluation showed gastritis, which is in?ammation of the stomach
lining; the colonoscopy did not show any inflammation.

Dr. Becker specifically disagreed with the Opinion of Dr. Bedard that there was no objective
evidence the claimant had Crohn's. A biological marker from in?ammatory bowel disease was
present as determined by an independent lab from blood work in October of 2009. Biopsies of his
ileocecal valve con?rmed chronic i'leitis, which is part of Crohn's disease, even though there are other
causes.

The claimant also had bloody diarrhea for many years, including his time playing professional
football; Dr. Becker did not know if the claimant sought any treatment for this during his
time playing professional football; this data was based solely on the self-report of the claimant. The
claimant had also been diagnosed with internal hemorrhoids, which can also cause bloody diarrhea.
But, the claimant had been using anti?inflammatory drugs while playing; the main side effect of
nonsteroidal anti?inflammatory drugs is to cause intestinal ulcerations, which can exacerbate
in?ammatory bowel disease, including Crohn's. Records from the Seahawks documented that the
claimant had been given prescriptions for Toradol, Indocin, Bextra and Vioxx; all in standard doses.
Dr. Becker did not review any athletic trainer records from the Seahawks.

Dr. Becker testi?ed that it would be speculation whether the claimant's Crohn's disease was
aggravated by his medication use while playing professional football; but there was potential that the
claimant's condition was exacerbated. He also testi?ed that there is no known cause of Crohn's
disease. He was also the ?rst physician to diagnose the claimant with Crohn's. lmportantly,
Dr. Becker could not state on a more probable than not basis when the claimant developed Crohn's
disease. Only that when the claimant left professional football in 2005 he had consistent
with Crohn's. He also agreed that the claimant playing professional football did not cause his Crohn's
disease. The seen by Dr. Becker in 2009 could have been caused or exacerbated by

stress.

Page 12 of 49

 

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Ken Smith is a board certi?ed athletic trainer. He was an athletic trainer with the Seahawks
for seven years, starting in 1998; he was the trainer primarily responsible for ?ling workman's
compensation claims, in addition to his regular duties of basic injury care for the players. For the
past 11 years he has been the head athletic trainer at Willamette University in Salem, Oregon.

During his time with the Seahawks, he was unware of any written policies concerning industrial
insurance claims. He estimated he ?led 90 to 100 claims every year for players, but a claim was not
filed for every injury. He does not speci?cally remember ?ling any worker's compensation claims
associated with head injuries. He has no memory of ever ?ling a worker's compensation claim for an
injury involving loss of consciousness. He knew concussions were treated, but most of that type of
work was done "in-house" with their own doctors; he did not know if the treatment bills were submitted
to worker's compensation or'billed to a retainer type agreement; Mr. Smith was not involved in that
process.

The vast majority of head injuries that were treated, outside of the two training camps, were
from games. A typical week would be on Monday lifting and working out issues from the game
(assuming it was on Sunday); Tuesday was the players' day off, so a big treatment day for the training
staff; Wednesday and Thursday was a run-through practice at a faster pace and special teams
practice and scout team activities, with the offense and defense split?up to prepare for the next
speci?c opponent, these were typically the longest practice days in the week; Friday and Saturday
typically had shorter practices. Pads and helmets were typical for Wednesday and Thursday, but it
often depended on the injury situation, and as the season progressed, this could vary quite a bit.
Linemen, offensive and defensive, would usually practice at full?speed and contact working on pass-
rush for 15 to 20 minuteson Wednesday and Thursday. During training camps and during the pre-
season, with players competing for a roster spot, the intensity and effort was elevated when compared
to the regular season.

In Mr. Smith's opinion the most dangerous play in football is the kickoff. Often backup players
would be running at full speed when collisions would happen. Most injuries occurred during games.
Linemen had contact on most plays, usually from other linemen; typically not the fastest players, but
usually the strongest.

When Mr. Smith was with the Seahawks, there was no tracking of injuries; the NFL had a
tracking system whereby Mr. Smith reported injuries to the league after each game. Injuries that
required some kind of assistance to the player would end up in the league tracking system. That is

Page 13 of 49

 




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not to say injuries were not documented; if a player was injured, a written record would be created
concerning the player's complaint and the initial evaluation by the trainer; but if no treatment was
offered or no treatment plan was created, there may not be a written record created by the training
staff.

From 2002 to 2005, there was nobody acting as a spotter looking for head injuries during
games. He was familiar with the term "ding", used by players to refer to a hit to the head or a
concussion. If a player had a ding, then how 'the training staff responded varied a great deal; but
there was no concussion protocol used during his time. During games trainers would watch for
injuries and tend players; they were present-primarily for triage. Mr. Smith Could not recall any
instance where a player reported a "ding" or impact to the head where the player'sreport was ignored.

Trainers would also give prescribed medications to players; including anti?in?ammatories.
Injections were also commonly given on game day, probably 15 to 20 players on game day received
injections; Toradol was a common injection.

Mr. Smith testi?ed that he believed the players had a reluctance to report head injuries or what
they players considered a "ding"; reporting injuries also seemed to depend on the player's status and I
time of year, such as, whether a roster spot was secure. Players would typically report injuries to the
trainers ?rst before discussing the issue with a physician, If a trainer saw something in a player
indicating an injury, then the trainer would go speak to a player about it.

He did not remember the claimant ever reporting a head injury. His understanding was the
claimant was either a starter or backup his entire time with the Seahawks and played offensive line
and was on the kickoff return team. Mr. Smith testified that he believed concussions were
und'erreported by the players.

Kenneth Green played professional football from 1978 to 1985; he was a safety and on special
teams. During his career he suffered concussions; during his playing years it meant getting 'knocked
out' whereas a 'ding' was where a player would get dizzy or his vision would get fuzzy.

He ?rst met the claimant while he was playing for the Seahawks and Mr. Green was coaching
at Washington State University. He attended a Seahawks training camp in Cheney, Washington.
Mr. Green described the drills he saw in training camp as "full tilt". Linemen were hitting each another
on every play in the practice he saw. Mr. Greene only saw this one Seahawk practice; it was about
two hours. In his experience playing professional football, lineman would hit each other on almost

every play in practice.

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Contact between the two in the last several years is primarily at charity events. Mr. Green
worked with the claimant on a credit card business for about eight mOnths; the business was not
successful. He also lived in the same area as the claimant for several years starting around 2009; in
February 2016 he moved several thousand miles away from where the claimant resides; they speak
occasionally now.

In the last several years, Mr. Green has seen the claimant's health deteriorate. On a number
of occasions the claimant has been unable to participate or ?nish whatever activity the two were
engaged in; Mr. Green testi?ed it could have been stress or pain or Crohn's disease. He did not
believe that the claimant's health was normal for a retired professional athlete; he has been around
a lot of retired professional athletes; pain is not foreign to them. He can tell the claimant is in pain
just by the way he moves, which is atypical for a former professional athlete.

Charles K. Bedard, M.D., is board certi?ed in internal medicine and gastroenterologY; he
retired from active practice in 2016 after 38 years. Colonoscopies, upper GI endoscopies, and liver
procedures were common procedures with patients in his practice. He evaluated the claimant on
May 20, 2015, at the request of the employer; the claimant was very cooperative.

Dr. Bedard reviewed medical records, including those of Dr. Becker, prior to preparing his
report. He was also aware the claimant retired from professional football in 2005. He did not see
any records for any gastrointestinal complaints during the time the claimant played professional
football; or any medical records concerning gastrointestinal testing or diagnostics prior to those of
Dr. Bedard. He did review a list of medications prescribed or given to the claimant while he was
playing professional football. The claimant reported that'he had bright red stool and diarrhea from
time to time while playing professional football. Records showed that the claimant was first diagnosed
by Dr. Becker with Crohn's on October 13, 2009.

Notable medical records include Dr. Becker?s February 4, 2011 colonoscopy and upper GI
endoscopy that found the colon and terminal ileum were entirely normal; no Crohn's disease was
found; but internal hemorrhoids were found. February 7, 2011, a blood test returned no evidence of
Crohn's.

To de?nitely diagnose Crohn's disease, an endoscopic procedure taking a biopsy is important.
Albiopsy is not blood work; it is where a small sample of tissue is taken and then analyzed under a
microscope; a patient simply reporting is inadequate for a Crohn's diagnosis.

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Nonsteroidal anti-in?ammatory drugs, such as those taken by the claimant while playing
professional football, can temporarily exacerbate exacerbation ceases once the use of
the drugs stops. Temporary exacerbation can include more diarrhea and occasional bleeding. In Dr.
Bedard's addendum report from August 2015, he wrote that he agreed with Dr. Becker that the
claimant had an established diagnosis of Crohn's disease after 2009.

Brenda McCarthy has been the claimant's girlfriend since2012; they live together. They
?rst met in 1997 when she worked for a radio station that covered the Tampa Bay Buccaneers and
the claimant was in his rookie season. During his'playing days, she would see the claimant about
three times a week.

Over the last two years. she has seen a noticeable'decline in his memory; she noted memory
decline since they ?rst started dating. His ability to move has decreased; he has trouble just standing
or turning his neck all the way; despite this, he volunteers as an assistant football coach at a local

. high school to be there fOr his boys. Ms. McCarthy has taken the claimant to the emergency room

when he was doubled over with abdominal pain; she has also seen him suffer from balance issues.
He also gets up several times a night and suffers from daily headaches. The change in the last four
years in his overall health has been drastic.

A typical week for the claimant will involve helping coach the high school football team and
multiple doctor appointments. He cooks about twice a week but does little, if any, cleaning. But, on
some days he does not feel well so he does not go to the high school football practice or games; he
helps coach on a volunteer basis. After attending a high school football game, the claimant can
barely walk the next day; practice does not have as much of an impact because he can rotate sitting
and standing and they are shorter in duration.

Ms. McCarthy handles appointments and paying bills because the claimant simply forgets to
do so.

Gerald Wunsch, Jr., was born in 1974, he has three children, 16, 14 and 11. He's divorced
and lives with his girlfriend, Brenda McCarthy. He grew up in Wisconsin; graduated high school with
around a 2.7 He currently weighs about 400 pounds; he weighed around 340 while playing
professional football as an offensive lineman.

He played football at University of Wisconsin-Madison, a Division I program, on scholarship.
Days would start around 6:30 in the morning and his duties would conclude around 11:00 at night.
Before football season began, he would have two practices a day for two weeks. Practices

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sometimes involved hitting other players while wearing football pads. Practices during the season
were usually about two hours a day. He remembers the contact in the college drills where linemen
would hit each other were harder when compared to many of his college games. He played college
football at Madison for ?ve years (he red shirted for one year); three years as a starter.

The claimant was drafted by the Tampa Bay Buccaneers in 1997 with the 37?? overall pick. He
played in Tampa Bay for 5 years. He played right tackle. From his junior year in college to the time
he left Tampa Bay he was 6 feet 5 inches tall, 340 pounds. Tampa Bay released him in August of
2002, and he was signed by the Seattle Seahawks in under a week.

In Seattle he played right tackle, right guard, left guard; he went in as a tight end a few times.
In Seattle he also played on the kick-off return in the wedge. . In the three seasons in Seattle he
played in every game, including pre-season, except maybe ?ve games he missed due to injuries. He
was not a starter in Seattle, but a key backup; typically six offensive line players suited-up on game
day, so if any of the five starting linemen were hurt, the claimant was the backup; he started a couple
of games while in Seattle. He did not play any regular season games in 2005.

The claimant was released by the Seahawks in 2005 after suffering another injury to his right
ankle; he started training camp but did not ?nish; this was the end of his professional football career.
During his career, pre?season had four games, the regular season had 16 games, with one bye week;
the season was typically 21 weeks, not including playoffs.

When he was ?rst drafted into the NFL he had mandatory mini-camps and training camps. He
could not speci?cally remember how much contact was involved in practices for the camps; he
described them as very, very physical. Drills would include hitting your own teammates. One training
camp practice in his first year with the Miami Dolphins he remembers as being particularly brutal.
Half of all the contact drills that will happen during a season occur in the four weeks of training camp.
At this point in the season, no player has a secure job; the drills are full speed, the atmosphere is
highly competitive; ?ghts would start. The exception to full speed drills in training camps was kickoff
drills; full speed would be too violent; instead players would run until they came close to another
player and then give themselves up. In training camp, players would only get an occasional night off
over the course of the four weeks. .There was not any signi?cant difference between the training
camps of Tampa Bay and Seattle. During the off-season he would work out roughly four days a
week; he would take off maybe two weeks.

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During the season, full speed contact drill days were Wednesday and Thursday; practices
were around three hours. The toughest aspect about practices for a linemen was that they hit all the
time. Some of the claimant's biggest hits came from safeties. Games were more violent than
practices, but practices were tougher because of the amount of repetitibn, so the practices were more
painful in his opinion.

When the claimant was playing, he was taught to hit with the crown of his helmet underneath
the opposing player's chin and then drive his hand and ty to lift up the opposing player to get leverage
and drive him back. The repetitive nature hurt his neck; sometimes he would get headaches during
practice. His lower back was engaged on all these plays, because he would bring his hips through
when hitting an opposing player. His elbows and wrists got sore from the constant pounding.

When the claimant played in kick-off return in Seattle he was the point in the wedge; the four
people in the wedge used to call it the suicide quad. On almost every kickoff return there were high
speed collisions. When the ball was kicked hewould be at the 20 yard-line; usually he would run
back to the 10 yard line and line up in front of the return man, form the wedge and then run forward,
trying'to stay low; collisions with opposing players typically happened between the 20 and 30 yard
line. Players involved in kick~off collisions would be running at full speed at impact. Claimant
characterized these collisions like getting in a car wreck; it was a relief when the return man did not
bring the ball out. In order to get underneath an opposing player on a kickoff, he would try to get the
crown of his helmet underneath the chin of the opposing player and run through their body. Vicious
collisions were the norm on a kick-off return; it happened almost every time. If he would get knocked
out it was "real quick", and once he had experienced it enough he knew to look for the silver bench
on the sidelines and make his way in that direction while his eyes were resetting.

As a linemen, some blocking techniques involved forearms to the chin, or an arm slap. When
the Claimant was playing, a defensive player could try to slap at a shoulder pad and if the slap
accidentally hit the offensive lineman in the head, it was not a penalty. Forearms to the neck or the
bottom of the helmet was a common technique. The claimant testified he got injured a lot more
playing guard (which he played in Seattle) than he did tackle (which he played in Tampa Bay). On
every play he was trying to make contact with two opposing players.

When asked to describe his injuries from playing, the claimant listed: a couple of ankle issues
on both sides with "torn stuff", sprained ankles on both sides numerous times; knees got rolled up on

-- numerous times; left hip torn labrum; injuries to both wrists numerous times; ?ngers; toes; tore a

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muscle between his thumb and pointer ?nger on his right hand; subluxed right shoulder; numerous
neck and low back; numerous concussions. He testi?ed about a few other speci?c hits that stood out
from his professional career.

His primary concern was issues involving his brain. He cannot control his emotions, he has
temper issues, he gets lost, sometime forgets his way home, suffers from vertigo and balance issues;
and he is only 42 years old. He cannot keep track of anything and has a hard time remembering
simple things; he cannot manage his own money. When he was ?rst married he handled all the
?nances; then about a year after coming to Seattle his former spouse took over all the ?nances; the
claimant was forgetting things and not following through; it caused problems in his marriage.

During his playing days, the claimant understood a concussion as being knocked out to the
point where a player could not continue with the game; anything short of that was a "ding" or a "bell
ringer". To illustrate his frame of reference while playing, a teammate after a play said he could not
?nd the sideline because he could not see; the next play this player ran the ball for a touchdown and
was then walked off the ?eld by his teammates; the teammate had got what was called a "ding". The
claimant was never knocked out of a game to the point where he could not continue with the rest of
the game. He could remember at least five instances while in Tampa Bay he was knocked out, but
could continue with the game. He did suffer ?dings" quite frequently; sometimes to the point where
he would vomit in the hallway; he testi?ed to two instances where he vomited in the huddle, once with
Tampa Bay and once with Seattle. Given his understanding of what constituted a concussion while
he was playing, the claimant never reported any, what he considered at the time, head injuries to any
training staff while playing professional football; instead he would inform training staff'he had his bell
rung or a "dinger" they would ask if he was ok, he would say yes, and that would be it; he never
received any treatment or evaluation after reporting a ding. The claimant testified that to him, and
the other football players he knew, that losing consciousness was just part of the game; he was never
told it was something of concern or that he should report.

When playing for the Seahawks, and with the understanding that a concussive like impact
would generate a change in light or floater in his vision; the claimant estimated he would experience
10 or 20 such impacts in a game. In a practice, at least two or three if the practice involved a contact
one-on-one pass-rush.

To his recollection, team doctors never discussed concerns over concussions with the players;

coaches never discussed concussions. The concern at the time was spearing opposing players with

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the helmet. That is, putting your head down, lining up your entire body, spine lined up in a straight
line, and hitting somebody anywhere.

The claimant also testi?ed'he has pain in his elbow, both wrists, has carpal tunnel, pain in his
left hip, his neck and suffers lots of headaches; he has joint pain at some level throughout his entire
body.

While in Tampa Bay he had stomach issues and ?lled a toilet bowl full of blood; his
understanding was it was due to hemorrhoids. The problem continued during his time in Tampa Bay;
he also had blood work done because he kept getting the?u; these problems persisted while he was?
in Seattle.

While playing for the Seahawks, the claimant regularly received injections of Toradol and
Hyalgen to manage pain so he could play. He also had trouble sleeping while in Seattle.

After he retired from football, the claimant was involved in a condominium complex
construction project. He characterized his duties as filing things in an of?ce and soliciting people to -
invest. He also started a credit card processing company in 2008, he was bought out in 2012 or
2013; the last two years he did not'do anything.

If he would discuss an area of pain or with a trainer or medical staff they would
prescribe medication for him; he was never told he had to take any prescription medication.

The claimant now coaches at his kids' high school on a volunteer basis; sometimes he cannot
make practices; practices are four to five times-a week; he makes it a point to attend games. The
day following games is his worst day of ?the week physically; his whole body hurts, he has a headache
and it hurts to move; but it's very important to him to be present for his boys at these games.

John S. Ramsden is the Director of player health and performance for the-Seattle Seahawks;
he has a bachelor's degree from University of Wisconsin?LaCrosse in physical education, with an
emphasis in athletic training; he is a board certi?ed athletic trainer. From 1992 to 1999 he was an
assistant athletic trainer with the Green Bay Packers; from 1999 to 2005 he was an assistant athletic
trainer with the Seattle Seahawks; from 2005 to 2011 or 2012 he was the head athletic trainer for the'
Seahawks; since 2012 he has been in his current position.

As head athletic trainer, he was responsible for all communications regarding player
complaints and injuries, collecting this information and providing it to the team physicians and

coordinating schedules to facilitate player appointments with physicians. As the director he is the

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global overseer of the medical staff, sports science staff, nutrition staff and he collaborates with the
strength and conditioning department.

From August of 2002 to September of 2005, when the claimant was a player with the
Seahawks, Mr. Ramsden was an associate athletic trainer. His duties were to set up care plans,
rehabilitation plans, therapy plans, prepare training and equipment supplies, pack-equipment for road
trips and provide hydration to players on the ?eld; they would also coordinate appointments with
physicians. His primary papenrvork duties was to coordinate and design physical therapy programs
for the players. 0n game days he would be on the sideline attending players and watching the game
to spot injuries. He attended all the practices, games, training camps and mini?camps; his primary
responsibility was to watch the players for injuries and take care of any such injuries. If he had a
concern with a player based on something he saw, either in a practice or game, he would talk to the
player about his concerns.

A typical week from 2002 to 2005 would involve a game on Sunday. Monday players would
come in and report injuries or concerns from the game, and physicians would be on'site; medical
concerns would be addressed and appointments made as needed. Tuesday was players' day off;-
except an injured player was required to come in for evaluation and treatment. Wednesday and
Thursday were big practice days where the players would do drills. Mr. Ramsden described these
practices as in shoulder pads and helmets, sometimes full pads; tackling to the ground was not part
of these drills, but contact at the line of scrimmage was expected. Practices were usually a little over
2 hours on Wednesday and Thursday. The total number of plays run in a practice was 80 to 90.
Friday practices were usually not in pads, sometimes players wore their helmets; the emphasis was
speed and quickness as opposed to contact. Saturday would involve mock games, which had no
contact.

During the regular season there were no practices that involved tackling players to the ground.
Instead, "thud tempo" was a high intensity practice where the players would collide but not take each
other to the ground. On Wednesday and Thursday, the linemen would usually start practice with a
?ve-man blocking sled, where the offensive would hit the sled and drive it for M0 or three seconds;
next would be individual drills where linemen would lineup across from a teammate to work on
blocking schemes for certain plays; after that offensive and defensive linemen would line up for
running plays, this was usually 10 repetitions and was at "thud tempo", a running back would be given
the ball, the offensive line would try to create a hole and the defensive line would try to stop it. There

Page 21 of 49

 

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was helmet-to?helmet contact in practice between linemen as well as contact to the head and neck.
In terms of linemen, during practice, Mr. Ramsden agreed there was constant banging into each
other. If a player did not work hard in practice they risked losing theirjob; Collisions between linemen
in practice were substantial enough to cause a concussion.

Training camp would last ?ve to six weeks; and usually start about two weeks before the first
pre-season game. The ?rst week was very physical; two practices a day six to seven days a week.
The first week would have periods of live practice; these were the most intense practices; when it
was not at live game speed, this ?rst week was "thud tempo". After this ?rst week there were no
more live practices in training camp. At some point, the practice schedule would change, where the
?rst practice in the morning was like a Wednesday practice and the afternoon practice was special
teams practice or an unpadded practice that was like a Friday practice. The rest of training camp
was typically "thud tempo".

Off-season minicamps typically stared in April or early May. There were no live drills but some
practices were at "thud tempo". During these offseason mini?camps "there were not any practices 
that did not involve contact between the players. Drills for the offensive line were described as very
repetitive by Mr. Ramsden and largely the same as the drills in the regular season.

If a player had a complaint from something that was not seen by a trainer in a game or practice,
that player would report the injury or complaint to the trainer. The trainer would then do a physical
exam, checking range of motion, strength, joint and ligament stability and get a histOry from the
player. If it was felt more medical attention was needed, then the head athletic trainer would be
notified; the head athletic trainer would then be responsible for creating the list of players that needed
to see a physician. Physicians were present on site Monday, Wednesday, Thursday and Friday and
game day. Physicians were also present at the training camp; physicians were not present at off-
season minicamps.

Any time a player saw a physician a note was generated. A player reporting a concern in a
game or practice would not always result in any record being created. If a player required a treatment
plan as a result of speaking with an athletic trainer, then a note would be created. Notes from
physician or trainers would all be placed in a player's athletic trainer ?le. Any player concerns of head
injury or concussion-would generate a written record and placed in the athletic trainer ?le. .

Mr. Ramsden was familiar with the term "ding" and the phrase "to have one's bell rung"; both

are player slang for a blow to the head. Getting? "knocked out" was slang for being rendered

Page 22 of 49

 





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unconscious for any period of time. From August of 2002 to September of 2005, he evaluated and
treated players for concussion. If a player reported a concussion or head injury, he would refer the
player to the team physician. If a player reported a "ding" during a game, then a trainer would speak
with the player and use general questions to evaluate the effects and how the player was feeling. if
the trainer had a sense the player was still affected by the "ding" then the trainer would tell the player
to be evaluated by the team physician. A player was not allowed to return to the game until the
physician examination was complete. If a 'ding' was reported in practice, the trainer would ask
general questions to get a sense of the effect on the player; if the player was not handling these
questions very well, then the player was held out of practice. A player would be held out of practice,
even in following days, until the player no longer endorsed any sometimes the player had
to be evaluated by a team physician prior to returning.

Any reported loss of consciousness was a red-?ag, the player would be held out of activity
until cleared by a team physician. Trainers and physicians would watch the games. Mr. Ramsden
could not think of any instance where a player reported a "ding" or any type of head injury that was
ignored by training staff or team physicians.

I Players were also prescribed medication by team physicians and given prescription
medication by training staff. Players were not forced to take medications. Records were kept of
every prescription for each player. Re?lls were only done with physiCian consent; sometime a
physician would be consulted over the phone, as opposed to another physical examination, and a
re?ll would be approved. Without a prescription or approval from a team physician, an athletic trainer
would not be able to give any prescription medication to a player. Over the counter medication was
readily available to players. The claimant was prescribed hydrocodone 7.5, given one dose in the
2003 season; Toradol, an anti-in?ammatory, that he had eight injections in the 2004 season and eight
injections in the 2002 season; Bextra, an anti-in?ammatory, one dose in the 2002 'season; Vioxx, an
anti-inflammatory, one dose during the 2002 season; Indocin, an anti-inflammatory, was given three
times in the 2004 season and 11 times in the 2003 season and one time in the 2002 season;
hydrocodone 5/500 was given four times in the 2003 season.

Mr. Ramsden remembers the claimant. He treated the claimant for an ankle injury sometime
around 2005; he was aware of the claimant's reported daily pain. He does not remember if the
claimant ever reported any other injuries to him. Mr. Ramsden did not remember any instance of the
claimant reporting a concussion, loss of consciousness, a 'ding', having his 'bell rung', being knocked

Page 23 of 49

 



 

out. From 2002 to. 2005 Mr. Ramsden does not recall any player on the Seahawks reporting
concussions or head injuries. He does recall questioning and evaluating players about head injuries
based on what he had observed in a game or practice; speci?cally, .Mr. Ramsden remember two
instances. To his knowledge, the claimant was never evaluated or screened for any concussion or
head injury during his time with the Seahawks.

Bloody diarrhea or blood in his stool was never reported by the claimant while he was with
Seattle. If he had, there would be a note generated. Likewise, if the claimant reported ?u-like
a document likely would have been generated, Mr. Ramsden was not aware of the
claimant ever reporting ?u-like 

There was no written concussion protocol for the Seahawks from 2002 to 2005. Mr. Ramsden
does not remember that any written material was ever given to training or medical staff or players
regarding concussions for the period of 2002 to 2005. He also testi?ed he does not recall if any
players reported a concussion or head injury to him from 2002 to 2005, but he does remember two
instances of approaching a player about concussions or head injuries based on what he saw in a
practice or a game for the period 2002 to 2005. He also testified he was unaware of the culture of
players in regards to reporting concussions for the period of 2002 to 2005.

Patrick Bays, D.O., has been board certi?ed in orthopedic surgery since 1993. 'He has an
active practice and performs seven to ten orthopedic procedures each week; 90 percent of his
practice involves injured workers; 60 to 70 percent is treating patients and 30 to 40 percent of his
practice is medical consultations and evaluations.

In August of 2008, Dr. Bays evaluated the claimant; although he did a full orthopedic exam,
the primary focus was the right ankle and foot. The examination was essentially normal for all body
parts with the exception of the right ankle and foot. The claimant had normal range of motion in all
body parts, including the right ankle. No tenderness on palpitation other than the right ankle region.
Strength, re?exes and'sensation in all areas was normal. No signs of muscle atrophy, circumferential
measurements were symmetrical. The right ankle was noted to have multiple well healed scars from
prior surgeries. Dr. Bays made four diagnoses that were all proximately related to a work injury dated
April 29, 2015: (1) impingement to the right ankle, status post right ankle arthroscopy with excision
of the bone spurs; (2) longitudinal split tear of the perOneus brevis tendon ,with partial invagination of
the peroneus longus; (3) right foot fracture to the ?fth metatarsal head, with soft tissue edema; (4)
posttraumatic painful right hind foot with marked gastroc, status post right gastroc slides, status post

Page 24 of 49

 



 

exploration of the peroneus brevis with repair of that longitudinal split tear, status post transfer of half
of the peroneus Iongus and peroneus brevis tendons.

In May of 2015, Dr. Bays evaluated the claimant again at the request of the employer for
purposes of this worker?s compensation claim. The claimant now had 35 orthopedic complaints; they
were: neck pain, right and left shoulder pain, right and left elbow pain, right and left forearm pain,
right and left wrist pain, right and left hand pain, right hand numbness and tingling, left hand
numbness and tingling, decreased range of motion to the right elbow, decreased range of motion to
the right wrist, weakness to the right arm, low back pain, left hip pain, right knee pain, left knee pain,
right ankle pain, left ankle pain, right foot pain, left foot pain, right and left great toe pain, right and left
thumb pain.

Medical records reviewed were from 1994 to March 2015. In 1994 he injured his right elbow
and had surgery in the right triceps tendon region. In 1995 another surgery was done on the right
elbow; an x?ray from 1995 showed changes in the olecranon process of the right elbow; again in
1995 he injured his right elbow again and another surgery on his right elbow was done in December
of 1995. In August of 1997, a left knee sprain is noted. November of 1997 a right elbow MRI shows
changes in the olecranon process of the right elbow. January of 1998 he reported dif?culty extending
his right elbow and nighttime pain. April of 1998 he was seen by Tampa Bay team physicians for
neck problems after reporting he pulled a muscle in his neck while lifting; a cervical MRI showed no
disc pathology. Also in April of 1998 he complained of back and neck pain. December of 1998 he
complained of neck stiffness. April of 1999, complaints of pain to the right knee cap. June of 1999
he reported right knee soreness. In January of 2000 a right knee MRI showed evidence of a mild
contusion to the medial femoral condyle. May of 2000, his preseason physical showed signs of
plantar fasciitis. August of 2000 he was seen for an injury to his right wrist. In December of 2000 he
was diagnosed with a left knee mild sprain. January of 2001, he had a traction injury to his brachial
plexus, that also involved his left shoulder and' neck. December of 2001, he injured his elbow, and
was diagnosed with a right elbow sprain. August of 2002 images of his right elbow showed evidence
of degenerative changes, including calcification and spurring. November of 2002, he presented with
elbow pain, x?rays showed generalized arthritis. November of 2002 he treated with a chiropractor for
right elbow complaints. In August of 2003 he complained of right elbow pain, and x-rays again
showed degenerative changes. September of 2013 he complained of a right knee injury suffered
during a game, an MRI showed evidence of degenerative changes to the right knee. In the same

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timeframe he suffered an injury to his left hip; an MRI showed evidence of- superior labral tear and

acetabular labral tear. In November of 2003 he had a right ankle injury and an MRI from 2003 showed
what Dr._ Bays diagnosed in the 2008 examination. AuguSt of 2004 he was again seen for right ankle
issue and right elbow issues. December of 2004 he had right .knee pain, an MRI showed
degenerative changes as seen previously. January 2005 his right elbow was locking. Surgery in
January of 2005 improved the right elbow. April of 2005 he suffered a right ankle injury, and in June
of 2005 he had a right ankle arthroscopy. of 2005, an MRI showed the fracture to the ?fth
metatarsal. Dr. Bays reviewed a voluminous amount of medical records concerning the claimant,
including various other medical evaluations done by various types of medical professionals.

Physical examination of the claimant revealed evidence of pain to the right and left portions of
the neck; pain in the interscapular region of the thoracic spine; but when touching his midback, he
complained of right upper extremity numbness, which is inexplicable anatomically. When compared
to the 2008 examination, range of motion had decreased signi?cantly in almost every body part, save
the left elbow. Notable was right elbow range of motion increased by 30 degrees when his right arm
was relaxed to his side when Dr. Bays was not actively measuring. Circumferential meaSurements
were symmetric and equal bilaterally, and similar to 2008. Neurologic exam for strength was normal.
Grip strength tests were considered invalid due to the wide disparity between the three separate
tests. Re?exes were normal, sensory exam was normal except the right foot/ankle.

Diagnoses following his May 2015 medical evaluation were:

(1) history of right triceps exploration and debridement on May 18, 1994;

(2) history of right elbow arthroscopy conducted on February 3, 1995, with evidence of
olecranon osteophyte;

(3) history of right elbow arthroscopy with debridement of the posterior aspect of the olecranon
on December 12, 1995;

(4) history of signi?cant chondral wear and irregularity over the radiocapitellar joint identi?ed
on January 8, 1998;

(5) history of multi?compartmental osteoarthritis, most severe at the posterior compartment
with areas of denuding and overall diffuse moderate chondral thinning, with more moderate
osteoarthritis at the proximal radial ulnarjoint, and evidence of a 3 millimeter intra-articular
body in the coronoid fossa, with evidence of a tear to the anterior bundle of the ulnar
collateral ligament at its insertion, identi?ed on JanUary 10, 2005; preexisting, but
temporarily exacerbated by a prior issue, none-the-less preexisting and unrelated;

(6) history of moderate osteoarthritis to both the right and left elbows, identified on August 3,
2010, representing a natural progression of a preexisting condition;

(7) history of degenerative changes to the right elbow, identi?ed on February 3rd of 2015,
representing a natural progression of a preexisting degenerative condition;

(8) history of a hyperextension injury to the left elbow identi?ed on September 11, 1997

Page 26 of 49

 




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(9) history of degenerative joint disease to the left elbow, with probable bilateral ulnar
neuropathies at the level of the elbow due to cubital tunnel and entrapment of
the ulnar nerves at both elbows, identi?ed on August 3, 2010;

(10) history of a left knee sprain that occurred on August 15, 1997;

(11) history of a left knee injury that occurred on September 20, 1998;

(12) history of a left knee injury on November 7, 1999;

(13) history of left leg sprain December 14, 2000;

(14) history of right knee pain weakness and crepitus, identi?ed on April 6, 1999;

(15) history of a right knee sprain on January 24, 2000;

(16) history of a very small Baker's cyst, with mild chondromalacia to the patella of the right
knee, identi?ed on January 26, 2000;

(17) history of a right knee sprain on September 8, 2003;

(18) history of a Grade medial collateral ligament sprain that occurred on December 
2004, representing an acute injury to the right knee that went on to resolve;

(19) history of degenerative changes to the right knee, identi?ed on August 3, 2010,
representing a natural progression of preexisting degenerative process;

(20) history of degenerative changes to both the right and left knees identi?ed in 2010
representing a natural progression of a degenerative condition involving both the right and
left knees;

(21) history of bilateral foot, plantar fasciitis, worse on the right foot than the left identi?ed
on May 18, 2000;

(22) history of bilateral foot pain, bilateral ankle pain, bilateral knee pain, identi?ed by on
January 27, 2015;

(23) history of a cervical strain/sprain identi?ed on April 13, 1998;

(24) history of early degenerative changes to the cervical spine, identi?ed on April 21, 1998;

(25) history of an injury to the cervical Spine and shoulder described as a strain to the
cervical spine and strain to the left shoulder that occurred on January 18, 2001;

(26) history of multilevel degenerative changes to the cervical spine, identi?ed on August 3,
2010, representing a natural progression of a preexisting degenerative process to the
cervical spine;

(27) history of multilevel degenerative changes to the cervical spine, identified on February
7, 2015, representing a natural progresSion of a preexisting disease process to the cervical
spine;

(28) history of low back injury that occurred on May 14, 2001;

(29) 2 millimeter midline disc protrusion at L3-L4, with evidence of multilevel degenerative
changes to the lumbar spine, identi?ed on July 25, 2011;

(30) history of a left hip sprain with evidence of a minimally displaced anterior superior left
hip Iabral tear, identified on September 8, 2003, representing an injury that occurred while
playing with the Seattle Seahawks on September 3, 2001;

(31) history of a right thumb sprain on December 3, 2001;

(32) history of minimal degenerative changes at the radiocarpai - joint and metacarpal
phalangeal joint of the right thumb, identified on August 30, 2010;

(33) history of an injury to the left thumb diagnosed as a thumb contusion on June 6, 2004;

(34) history of minimal degenerative changes to the left thumb radiocarpal joint and
metacarpal phalangeal joint, identi?ed on August 30, 2010;

Page 27 of 49

 



 

(35) history of a right ankle injury that occurred while playing for the Seattle Seahawks on
April 29, 2005;

(36) history of an injury to-the left proximal foreleg with imaging studies showing evidence
of edema and hemorrhage into the tarsal tunnel of the left ankle secondary to recent
trauma from December 2, 2003; 

(37) history of a right wrist hyperextens'ion sprain that occurred on August 1, 2000;

(38) history of minimal degenerative changes to the radiocarpal joint of the right wrist,
identi?ed on August 3, 2010, representing a'natural progression of a degenerative process.

.None of the diagnosis were related to the claimants occupational disease claim in the opinion of

Dr. Bays.

The in?ammatory arthritis category did not apply to any of the diagnoses. The arthritis in the
elbow would have been traumatically induced as far back as 1994. Arthritis in the right ankle had
imaging studies showing bone spurs that were present before 2002. Arthritis in other parts of the
body was all age related degeneration,.unrelated to any type of injury, including that seen in the
cervical spine at C5-C6. Arthritis in the knees were related to prior injuries or secondary to the aging
process. Arthritis in the hip was either age related or a result of trauma.

Dr. Bays understanding is that an occupational disease claim is something that occurs over
the course of time, typically secondary to 'cumulative trauma' or 'repetitive motion', with very speci?c
criteria attached to those terms. Repetition being de?ned as the same motion in cycles of under 30
seconds over the course of an eight?hour day with almost the exact same motion; a meat cutter doing
the exact motion over and over again is an example. Cumulative trauma, in the context cf qualifying
for an occupational disease claim, in Dr. Bays understanding, is the same as 'repetitive trauma'.
Dr. Bays testi?ed that if a person has a speci?c injury to a body part, from a particular incident, that
is subsequently made worse by the demands of a job, the worsening of the particular injury or body
part is not an occupational disease.

In his opinion, Dr. Bays believes that if the claimant has orthopedic conditions that arose
naturally and proximately out of the distinctive conditions of his employment as a professional football
player with the Seattle Seahawks form 2002 to 2005, then he would expect those conditions to be'
manifest in 2008 when he first examined the claimant. He has no explanation why there are more
orthopedic diagnoses for the claimant in'2015. That stated, Dr. Bays testi?ed that he does not believe
the claimant has any occupational orthopedic diseases as a result of his employment with the Seattle
Seahawks form 2002 to 2005.

Page 28 of 49

 



 

Dr. Bays did not take any detailed history concerning the practice or play of the claimant; he
did review a job analysis. He also testi?ed that he did not consider blocking as trauma. Whether a
hit on a football ?eld had any impact on the human body also depended on the type of hit and part of
the body. Whether an injury to a football player would be exacerbated by continuing to play football
would depend on the player and the type of injury.

He did testify that in terms of head injury, you get cumulative trauma, and football players have
conditions that are outside the scope of the normal population. Offensive lineman in particular Were
more likely to die earlier than the average population; but this had to do with the development of heart
disease.

Marc MD, is boardcerti?ed in neurology, he is a clinical associate professor of
neurology at the University of Washington and the director of the primary stroke center at Northwest
Hospital; he got his MD. in 1982, and has been a general neurology clinical practitioner for the last
20 years. He sees over 200 outpatients per month and around 70 to 80 inpatients per month; 99
percent of his practice is patient care. Dr. evaluated the claimant on May 13, 2015 at the
request of the employer. He testi?ed he watches football a little, but not a lot.

He explained that a concussion ?rst required a blow to the head orjarring acceleration of the
head at the skull and its contents, the brain and central nervous system. It is often manifested by a
complaint of a headache; initially patients report loss of memory and concentration. are
more apparent in the hours or a couple of days after an event and are typically at their maximum
within a couple of hours or days after the impact event. are expected to improve with the
passage of time. A person can have a concussion without loss of consciousness, but Dr. 
did not know whether most concussions happen without a loss of consciousness.

Post-concussion is when for a number of weeks of months after a concussive event,
a person still complains of headache; they may have vertigo, balance problems, vestibular 
sleep disruption, nausea; many patients with protracted have a history of migraine and
have associated therewith like visual auras, visual distortions or illusions of shining lights.
To diagnose the condition, ?rst there must be a history of concussion; next, such as
headaches, problems with confusion, sleep disruptions.

Upon examination on May 13, 2015, the claimant reported headaches, visual distortions,
issues with cognition, memory difficulty, he would get lost while driving, dif?culty expressing himself

verbally. Dr. found the claimant to present with a clear train of thought and was a decent

Page 29 of 49

 



 

historian. Dr. also reviewed medical records, including reports of imaging studies; he did
not get to see the actual images; none of the medical imaging reports documented any indication of
a brain injury.

The neurological exam was essential normal, with a couple of de?cits; he had problems with
a test associated with executive function, or the ability to plan ahead; some dif?culty with delayed
recall of words. Dr. thought the claimant demonstrated poor cooperation in the motor
examination. He was also concerned that the claimant's girlfriend laughed when the claimant said
the year was 2005; which indicated to Dr. that the claimant and the girlfriend may be aware
of something that he was not. He was taken aback with the lack of emotional concern expressed
regarding the cognitive decline issues. Sensory examination had ?ndings consistent with peripheral
nerve disease.

Diagnoses were: (1) chronic daily headache and intractable migraine; (2) chronic pain
disorder; (3) cognitive decline; (4) peripheral nerve disorder; (5) histOry of arthritis; (6) obstructive
sleep apnea.

Chronic pain disorder is arguably applicable to everyone over 40, so the diagnosis is given
when the pain interferes with quality of life. Cognitive decline was given due to the claimant being
taken at his word that he- was not thinking well, but 'Dr. testi?ed that without formal
testing to show this was not indeed a problem, he would offer the diagnosis, but 
with the caveat that the diagnosis was most likely a result of his depression due to personal stress.
The reason Dr. concluded that the most likely cause of the cognitive-decline was due to
personal stress was because there is no record of any. cognitive complaint until 2010, whiCh is ?ve
years after the claimant stopped playing football; he would expect cognitive complaints around the
time of the head injuries. It is atypical that of post-concussion would ?rst appear
?ve years later. Although he did not know the speci?cs of what a practice or a game entailed for an
offensive linemen, or the claimant specifically, Dr. had no reason to doubt that the claimant
suffered head trauma while playing professional football.

Dr. testi?ed that the medical community does not understand yet who is at risk for
cognitive decline. While?he has no doubt that the claimant suffered some head trauma while playing
professional football, this does not create a foregone conclusion that the claimant will have cognitive
decline later in life as a result. By way of example, some boxers develOped brain diseases at a young

age whereas other boxers seem to escape. To presume head trauma will lead to brain disease is

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'patently incorrect'. In his opinion, none of his six diagnoses for the claimant were a result of an
occupational disease. The exception that his chronic pain disorder may be related to orthopedic
injuries sustained as a professional football player.

Douglas Robinson, MD, is a board certi?ed he has been in private practice since
1979; about two-thirds of his practice is medical examinations and one-third is patient care; about 10
percent of his patient?practice is a traumatic brain injury diagnosis. He was a consultant
to the medical director's of?ce at the Department of Labor and Industries from 2000 to 2005. Almost
all the examinations he does are related to an injured worker and almost all are done at the request
of the Department or an employer. He examined the claimant on May 14, 2015. He testified he had
examined a number of other professional football players in the past.

He testi?ed that there is controversy whether post-concussive even exists; it is not
a universally accepted diagnosis; even though it appears in the DSM-V2. are subjectively
reported and studies indicate its presence in situations where compensation is being sought. That
stated, are fatigue, sleeplessness, irritability, headache, nausea, sensitivity to light and
sound.

Under the DSM-V, the diagnostic criteria for a neurocognitive disorder due to a traumatic brain
injury are: evidence of a traumatic brain injury with one or more of the following; loss of
consciousness, posttraumatic amnesia, disorientation and confusion, neurological abnormalities.

The are present immediately following the occurrence of injury and the typical course is a

complete or substantial improvement, from mild blows to the head, that tends to resolve within days

to weeks, with complete resolution within three months.

Upon examination, Dr. Robinson did a mental status exam. The claimant's chief complaints
were memory problems, difficulty reading, forgetting where he was going or what he was doing, short-
term memory loss, some long-term memory dif?culties, headaches, he developed a stutter and
inability to articulate himself. He did not discuss in detail with the claimant the speci?cs of practices
for an offensive linemen playing professional football nor did they discuss the specifics of games.
Dr. Robinson testified he was unfamiliar with what an offensive lineman does in practice in

professional football.

 

2 is the acronym for Diagnostic and Statistical Manual of Mental Disorders Fifth Edition, published by the American
Association, 2013

Page 31 of49

 



 

Dr. Robinson and the claimant did not discuss what constitutes a concussion, nor did they
discuss whether they had different ideas about what would qualify as a concussion; the claimant did
tell him that when he was playing football, his understanding was that a concussion was the type of
blow that resulted in a player being carried off the ?eld and being unable to continue for the rest of
the game. Three signi?cant concussions were reported by the claimant. When describing his
Dr. Robinson understood the claimant to be describing residual from the three
signi?cant concussions; which was generally described as memory and cognition problems getting -
worse over time.

The mental status exam lasted about two hours. The claimant was cooperative and engaged
during the process; his emotion seemed normal, speech pattern Was normal and he did not have any
dif?culties with vocabulary. As a medical historian he did not have dif?culty providing a chronology,
but Dr. Robinson noted there were variations between what the claimant reported as the number of
concussions, the number of times he was unconscious and the that folloWed and the
he suffers from now, when what he stated in the mental status exam was compared
to medical records and histories on previous instances. This variation is not typical in Dr. Robinson's
experience with patients with concussions or traumatic brain injuries.

reviewing prior medical records for the time the claimant was playing professional football,
there was no mention anywhere of the claimant ever having a concussion, being evaluated for a
concussion or head injury, or complaining of a head injury. Of particular note is that one of the three
signi?cant concussions reported by the claimant occurred in a game where the claimant was injured
and was evaanted and treated; yet, despite speaking to medical staff concerning an injury, there is
no documentation the claimant complained of any concussion or impact to the head.

Dr. Robinson diagnosed the claimant using the DSM-IV. Under Axis I, which is current
disorders; no diagnosis. Axis II, which is lifelong conditions, diagnosis deferred. This was
done because in order to provide a diagnosis in Axis II, a requires much more information
and often needs to know someone over a period of time and be aware of the nature of their patient's
relationships and life situation. Axis is physical diagnoses, Dr. Robinson noted several conditions
that were present in the claimant?s medical records. Axis IV, is and environmental, he
listed chronic medical conditions, dif?cult marriage, divorce and vocational difficulties. Axis V, is a
rating from 1 to 100 that re?ects the level of impairment due to disorders, 1 represents
the highest level of impairment, the lower the number, the more impairment; factors considered are

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ability to accomplish daily tasks, employment tasks, maintain relationships an avocational interests;
Dr. Robinson's testimony did not include the claimant's rating.

The conclusion Dr. Robinson reached was that the claimant did not have any neurocognitive
dif?culties related to concussions that occurred during his time as a member of the Seattle Seahawks.
He testified he was familiar with the standard for allowance of an occupational disease worker's
compensation claim in Washington State and the claimant did not have an occupational disease
related to his employment in Seattle.

Two diagnoses suggested by the claimant's complaints are, (1) dementia due to head trauma
and (2) post?concussive Dementia is a permanent alteration of brain functioning in a
negative direction with head trauma being a common cause; many other diseases may cause the
condition such as Alzheimer's or Parkinson's; or excessive use of street drugs. Given the complaints
of the claimant, dementia would be the appropriate diagnosis if he had cognitive decline as-a result
of concussions; but in Dr. Robinson's opinion, the claimant does not have dementia. Likewise, the
claimant did not have post-concussive Claimant's appear to be worsening over
time, as opposed to getting better and he reports that are uncharacteristic, such as loss
of smell. Even though this can occur with head trauma, such head trauma needs to be of suf?cient
force to sheer the olfactory nerve which the claimant did not suffer. That his complaints appear so
long after the events, as in years, is uncharacteristic as well.

Dr. Robinson also testi?ed that he believed the majority of concussions were a result of a
trauma that rendered the person unconscious.

Robert Jarrell, is a private investigator, he was hired to conduct surveillance on the claimant
in the State of Florida. He was provided a home address, vehicle information and told that the
claimant coached football at a local high school about a 30 minute drive from the claimant's home.
Mr. Jarrell was in the ?eld on November 7, 8, 13, 14 and 15th of 2014; he did not observe the claimant
on November 8 'or' November 15. The 8th and 15th Were Saturdays. Mr. Jarrell's records indicated
ten hours were spent on the assignment on November 8 and nine hours were spent on the
assignment on November 15. Video was taken of the claimant on a Sony Handycam; the videos
were not edited or altered. Photographs taken of the claimant were not altered. Mr. Jarrell has no
medical training.

Brian K. McDonald is a private investigator; about 95 percent of his business involves worker's
compensation claims. Video surveillance taken by his agency is edited only to the extent that video

Page 33 of 49

 




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not depicting the subject is removed; for example, if an investigator forgets to turn the camera off and
?lms the seat of his or her car. Mr. McDonald's agency was hired to do a background investigation
of the claimant and to conduct surveillance. The background investigation'was completed by
October 29, 2014. Mr. Jarrell was subcontracted to conduct surveillance-in the State of Florida, where
the claimant lived. Mr. McDonald's agency took surveillance video of the claimant from May 12 to
May 15, 2015, while the claimant was in Washington State. Mr. McDonald has had no medical
training.

Dav-id Dingwell, is a licensed private investigator, he works for Mr. McDonald's agency. He
took video surveillance of the claimant 2015. He has no medical training.

Neil B. Jacobson is a licensed private investigator. On November 6, 2014 he was hired to
conduot'surveillance on the claimant. He was in the ?eld conducting surveillance on November 6, 7,
8, 13, 14 and 15, 2014. The majority of the video taken shows the claimant at a football ?eld where
he is helping coach high school football; one time was at Walmart and another at a 7-11.
Mr. Jacobson also took still photos ofthe claimant; he also took some video of the claimant's
residence. He did not see the claimant on November 8.

Upon review, the videos show the claimant walking around, getting in and out of vehicles,
walking into a bowling alley, driving to the airport, driving around the Seattle area, driving around in
Florida, standing in parking lots and walking around a high school football field during practices and
games. Sometimes the claimant appears to walk with a relatively normal gait, and sometimes-he
walks with a noticeably altered gait; he is never seen running, or even moving quickly; at the high
school football practices, there is no footage of him participating in any of the drills (including throwing
a football) or even jogging around the field. No sound was heard on any of the videos.

Theodore J. Becker, is a board certi?ed disability analyst and examiner and licensed
physical therapist. He has been a licensed physical therapist since 1983. His area of specialty is
biomechanics and work physiology and tolerance evaluation, with a subspecialty in shoulder
biomechanics. He has been a rehabilitation consultant for a professional baseball team for the last
18 years. He also does research in upper extremity biomechanics.

.His practice involves evaluating people in performance based physical capacity evaluations;
also known as a functional capacity evaluation. In lay terms, the evaluations measure a person's
strength, ?exibility, endurance, stamina, balance, coordination, and range of motion. The full battery
of tests is typically about ?ve hours, but can last up to eight hours. Dr. Becker has done thousands

Page 34 of 49

 


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of these evaluations in the last 30 years. Included in the evaluation, are tests designed to determine
whether a person is giving good effort. About 80 percent of his practice is spent giving these
evaluations.

Dr. Becker evaluated the claimant on May 12, 2015; he saw the claimant this one time. As
part of the evaluation, a history is taken. Some of the activities the claimant stated he was generally
unable to do were helping with housecleaning, throwing a ball with his children, bending over, hunting;
sometimes he could not manage his own toileting and personal hygiene and he no longer danced;
the claimant did not speci?cally state what he was still able to do. Dr. Becker did not have a list of
the claimant's diagnoses from other medical providers.

Results of the physical capacity evaluation revealed that the claimant was exaggerating .his
Tests evaluating hand pinching strength had a greater than 20 percent change between
tests, which indicate the claimant was feigning hisability to pinch; one test showed a change of 41
percent on one hand and 53 percent on the other hand; another test showed a change of 59 percent.
Tests evaluating grip strength, again a change of over 20-peroent between tests indicates the person
is exaggerating his or her in every test of grip strength, changes were seen between 22
and 70 percent for the left hand and 31 to 54 percent for the right. If evaluations for the shoulder vary
greater than 15 percent, then the results are considered invalid. The claimant's left shoulder had a
17 percent variation and the right shoulder had a 29 percent variation. The knee ?exion test for the
left was considered invalid; that is the claimant volitionally restricted his abilities. Tests to both ankles
also resulted in invalid test results. Tests measuring his ability to reach forward or lift something up
or extend his arms were also considered to be invalid. Tests concerning his ability to walk indicated
he was putting forth minimal effort; he was measured to be walking at half a normal walking speed.
Measurements of his heart rate during testing also revealed the claimant was giving minimal effort.
Dr. Becker?s conclusion after evaluating the claimant was that the criteria for a valid test were not met
and it was determined the claimant volitionally restricted his own performance during the evaluation.

Dr. Becker also testi?ed that the claimant's physical abilities in the physical capacities
evaluation when compared to video surveillance taken of the claimant were 'considerably
inconsistent. Specifically, in the surveillance video, the claimant is walking considerably faster than
he was in the evaluation. His cervical ?exion seen on the surveillance video was much greater than
that measured in the evaluation; so much so that what was seen. on the video was a 500 percent

Page 35 of 49

 



 

increase; he was at 8 degrees in the evaluation and 40 degrees in the surveillance; there is no
biomechanical explanation for this.

Stanley A. Herring, MD, has been board certi?ed in physical medicine and rehabilitation and
electrodiagnostic medicine since 1983. His practice focuses on musculoskeletal and neurological
problems. He is a professor at University of Washington in the rehabilitation medicine, orthopedics
and sports medicine and neurological surgery departments. He is co-medical director of the
University of Washington Sports Concussion Program. In the early 19803 he was a team physician
for the San Francisco 49ers professional football team; for the last 27 years he has been a team
physician for the Seattle Seahawks and for about the last ten years one of the team physicians fOr
the Seattle Mariners.

His duties for the Seahawks include management of injuries to the musculoskeletal system.
He attends and observes training camps, injury clinics on Mondays and Wednesdays during the
football season, sideline game coverage, he attends the NFL combine and includes helping develop
sideline protocols for managing emergent injuries; the primary focus of his duties is orthopedics.
Dr. Herring gave testimony as to his recollection of the period of 2002 to 2005

When observing the games, his job was to look for injuries; he would walk the sideline to
position himself near the line of scrimmage. At training camps he would be on the ?eld while players
were practicing looking for injuries. Some training camp practices were live contact, but most had
less contact involved, especially as games grew closer. At mini-camps, which were typically in late
March or early April, most practices were not full contact; the purpose of these practices was more
teaching players calls, routes and techniques.

Some practices included game-like conditions and contact. Some drills involving offensive
linemen would involve a substantial amount of contact. 'Thud drills' involved contact, but not tackling
to the ground. Players would be injured in training camp, less so in mini?camps because there was
less contact.

If an injury happened during a game seen by Dr. Herring, then he, or anOther physician, would
evaluate the player. If an injury. happened in practice, if he, or another physician, was not at practice,
then an athletic trainer would do an initial assessment and report it to the physician and place the
player on the physician's schedule of player to see. Players would come to a physician to report
injuries; likewise, team physicians would proactively speak with players about injuries. Dr. Herring

testi?ed that a signi?cant portion of his job duty is to observe for what he believes may be an injury

Page 36 of 49

 

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and then inquire with the player. If 'a player came to him or was placed on his schedule, then a record
would be created of the evaluation. From 2002 to 2005, the Seahawks hadfour team physicians.
Records created by team physicians or athletic trainers were kept in the athletic trainer ?les. This
same process applied to head and neck injuries.

the period of 2002 to 2005, Dr. Herring understood the term 'ding' as player slang for being
struck with such force as to cause consistent with being dazed or confused; 'having one's
bell rung" meant the same as ding; 'knocked out' meant loss of consciousness.

if he saw a play that was possibly concussed or 'dinged', he would pull him from a game or
practice and evaluate him. Any playerthat is evaluated fora concussion or head injury, the evaluation
is ultimately from a physician. From 2002 to 2005, players were pulled out of games or practice for
head and neck injuries; he personally pulled players during this time period. Before being allowed to
return, a player would need to demonstrate he was back to baseline in terms of and able
to perform safely. The verbiage used by players in describing the impact as a 'ding' or concussion
did not impact the physician's evaluation. Dr. Herring cannot think of any instance where a player
reported an injury and the player was ignored.

Some prescription medication was kept at team facilities. Sometimes a physician would write
and ?ll the prescription at the team facility, other times the player would ?ll the prescription at a local
pharmacy. Any prescription for a player created a written record. Prescription medication was not
administered to a player without a physician present. Some players would ask for specific medication,
usually because they found a particular type more bene?cial when compared to other types of
medication. A common request on game day was for Toradol because it is an effective pain reliever;
the claimant in the 2003 and 2004 season would receive a Toradol injection on game day. Medication
would be taken on road trips; the process concerning medications on road trips was the same as at
Seahawk team facilities.

Dr. Herring remembered the claimant from when he played with Seattle; the claimant played
on the offensive line and he probably played on special teams. He evaluated and treated the claimant
for his injuries, primarily his ankle and elbow. The claimant reported injuries about his ankles and
elbows to Dr. Herring; nothing about 'dings' or concussions. ln-his review of the athletic training ?le,
which would contain the claimant's list of complaints and injuries, Dr. Herring did not ?nd any records
concerning concussions, 'dings' or loss of consciousness; if the claimant had spoken to any medical

staff about such an issue, a record would have been created.

Page 37 of 49

 

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The claimant had a physical done by Dr. Herring in 2002 prior to him playing for Seattle. Part
of that process is to ?ll out a medical history questionnaire. When asked whether he had ever been
knocked out or concussed, the claimant ansWered no. The-claimant also had a pre-season physical
in July of 2005, he was cleared-to play; but a player knows if they do not'pass the physical, then they
cannot play.

Dr. Herring agreed that a concussion is a blow to the head or to the body with force transmitted
to the head that results in a change of neurological function and those changes can be somewhat
broad. Direct contact to the head is not required for a concussion; loss-of consciousness is not
required for a concussion. Most sports related concussions do not involve loss of consciousness;
about 90 percent of sports related concussions are without loss of consciousness. of
concussions include headache, nausea, photophobia, sensitivity to hearing, affects to emotional
stability and sleep issues. I

From 2002 to 2005, he'was not aware of any formal education given to players concerning
concussions; if a player was evaluated for concussion they were educated during the medical visit.
He did not recall any materials about head injuries being given to players for the time period. In the 
same time period there were not any physicians that were independent from the teams that were on
sidelines during games watching for head injuries. He did testify that players were highly motivated
to play and he had to coax players to be forthright with him.

As the appealing party, the claimant has the burden of proof by a fair preponderance of the
evidence the order on appeal is incorrect.3 The industrial insurance laws are remedial in nature and
must be liberally construed.4 But this concept does not mean that facts must be liberally construed
in favor of the claimant.5 The Board is entitled to weigh conflicting evidence and reach its own
conclusions.6

A workers' compensation claimant has the burden to prove by the preponderance of
competent medical testimony that his or her claimed occupational disease was probably, as opposed
to possibly, caused by distinctive conditions of employment.7 In industrial insurance cases 'the

opinions of attending physicians should be given special consideration.3 This legal principle does not

 

3 RCW 51.52.050; WAC 263-12-115; Department of Labor indus. v. Maser, 35 Wn. App. 204 (1983).
4 Olympia Brewing Co. v. Department of Labor indus, 34 Wn.2d 498 (1949).

5 See, generally, in re Frank L. Heanon, Dckt. No. 02 10366 (May 15, 2003).

5 Groff v. Department of Labor indus., 65 Wn.2d 35 (1964).

7 Potter. v. Department of Labor 8; indus, 172 Wn. App. 301 (2012).

3 Hamilton v. Department of Labor indus, 111 Wn.2d 569 (1988).

Page 38 of 49

 

.s


?k
?l

45-13-45- 





 

require the trier of fact to give more weight or credibility to the attending physician's testimony, but to
give it careful thought.9 Medical Opinions must be based upon a greater probability, not a mere
possibility.1o

An occupational disease claim can also be allowed if medical testimony establishes distinctive
work conditions aggravated a worker's non-work related condition.11 Likewise, if medical testimony
establishes a worker's job duties accelerated his or her need for treatment or aggravated an
underlying condition, his or her claim can be allowed.12 Even in the context of allowance of an

- occupational disease, "The worker is to be taken as he or she? is, with all his or her preexisting frailties

and bodily 

A worker is entitled to bene?ts under the Industrial Insurance Act if a medical diagnosis or
condition arises naturally and proximately out of the distinctive conditions of employment.14
"Distinctive" does not mean unique.15

The term "naturally" in RCW. 51.08.140, requires establishment of something more than
proximate cause alone in order to establish it as an occupational disease. It is necessary, therefore,
to consider the conditions of claimant's employment and determine whether those "particular work
conditions more probably caused [her] . . . disease or disease?based disability than conditions in
everyday life or all employments in general."15 These conditions must be conditions of the
employment as opposed to conditions that coincidentally occur in the workplace.17 That is, there
must be a nexus between the combination of conditions that constitute a worker's job duties and his
or her claimed physical condition.

The claimant's primary job duty as a professional football player was to violently collide with
other professional football players. Although he had other duties, such as learning plays and
reporting his injuries, there does not appear to be any disagreement that the claimant's job as a

 

9 Hamilton v. Department of Labor 8. indus.. 111 Wn.2d 569 (1988).

1? See, Sayter v. Department of Labor indus. 69 Wn.2d 893 (1966) and Sacred Heart Medical Center v. Department
of Labor indus, 92 Wn.2d 631 (1979).

1? See Dennis v. Department of Labor indus, 109 Wn.2d. 467 (1987); see also, in re Donaid Ptemmons, BIIA Dec.,
04 12018 (2005).

12 Simpson Timber Co. v. Wentworth, 96 Wn. App. 731 (1999).

Dennis, supra.

?4 RCW 51 .08.140.

See, Dennis v. Department of Labor indus, 109 Wn.2d 467, (1987), which rejected this interpretation that was used
in Department of Labor tndus. v. Kinville, 35 Wn. App. 80 (1983).

16 Dennis v. Department of Labor indus, 109 Wn.2d 467, (1987).

17 id.

Page 39 of 49

 



 

professional football player, and everything it entails, including practices and games, is ?lled with
distinctive conditions of employment. Nor is there any disagreement that professional football is a
violent game. There is some disagreement as to how violent; such as the level of impact between
players in practice and the number of impacts in practices. That physicians are present at many
practices and all the games actively watching for injuries speaks to-the level of violence expected of
players. The claimant, team physicians, and athletic trainers all testi?ed that training camps,
practices and games all involved linemen hitting each other on a-regular basis.

The issue is whether the claimant's medical conditions arose naturally and proximately out of
playing professional football for the Seattle Seahawks from August of 2002 to September of 2005;
the primary medical concern appears to be the claimant's cognitive decline. The employer presents
testimony that there is no medical record documenting any head injuries suffered by the claimant
while he played and if any medical staff noticed an issue, then a head injury would have been
documented; because there is no documentation, the claimant did not suffer a head injury. There is
no doubt that if a player reports an injury, medical staff will not simply ignore the player.

The claimant testi?ed he never reported any head injury because anything short of being
removed from the ?eld and being unable to continue was just part of the game; he would just shake
it off. The employer's witnesses even testi?ed that players are highly competitive, motivated and
know if they cannot pass a physical, they cannot play and they are in constant competition to keep
their position. After learning that a head injury can be evidenced by any alteration in vision or ability
to think clearly, even momentarily, the claimant realized that he suffered head trauma in most
practices on Wednesday and Thursday, in contact drills; also he suffered head trauma in training
camps, particularly in the first week when practices were game-speed while players competed for
their job; and in all the games. Notable is that athletic trainers could not think of a single instance
where a player voluntarily reported a head injury from 2002 to 2005. In comparing the testimony
concerning whether the claimant suffered repeated head trauma, in training-camp, practice and
games, the testimony of the claimant is more persuasive.

Further, testimony from the physicians was that a standard MRI of the brain with a concussion
would be normal. But the claimant had an MRI in 2014 that showed his hippocampus was smaller
than 95 percent of the adult population and this imaging was consistent with the Claimant's
testing that showed he had impaired cognitive function; 
testing that was needed to con?rm cognitive decline according to an employer's testifying physician.

Page 40 of 49

 



 

Although there are other explanations for low hippocampus volume besides repeated head traumas,
no alternative explanation was provided. Also, the testing shows that while the
claimant is in the normal range for some of his cognitive abilities, it is ability to plan, process
information and retain short term memories that showed signi?cant decline. These results are
consistent with the claimant's testimony, and his girl-friend, that he has dif?culty handling his ?nancial
affairs. Claimant's girlfriend laughing at him in a forensic medical evaluation as evidence of
secondary gain motivators is not persuasive; notable, is that the forensic neurological medical exam
was normal with the exception or a couple of de?cits with the claimant's executive function; thus this
result was consistent with his other testing results. Additionally, the physicians testified thatwhile the
expectation may be for concussions to get better with time, there is no speci?c pattern in how
subconcussive impacts or repetitive impacts manifest; nor is there a good understanding of the long 
term impacts of concussions. An employer testifying even testi?ed that dementia would
be an appropriate diagnosis if the claimant had suffered cognitive decline as a result of concussions.
When comparing the testimony of all the physicians, the testimony that the claimant has cognitive
decline is more persuasive.

Claimant's arthritic conditions were seen on medical images, as well as his left hip labral tear
and imaging showed evidence of his other physical conditions. The testimony that these conditions
were aggravated by playing professional football is more persuasive than the testimony they-were
just a natural progression of age related diseases. When comparing the claimant's physician's
testimony that every play causes trauma to the employer's physician's testimony that blocking is not
trauma, the claimant's physicians are more persuasive. The theory that repetitive trauma, caused by'
impacting other professional football players, had the cumulative effect of causing some and
aggravating some of the claimant's physical conditions is convincing, especially when compared to
testimony that the claimant cannot have an occupational disease due to cumulative trauma because
he was not hit in cycles of less than 30 seconds while performing the same motion with the same
body part as de?ned by the American Medical Associations Guides to the Evaluation of Disease and
injury Causation, Second Edition.

Claimant is seen on video surveillance walking around and standing; private investigators
followed him for a total of 10 days. Sometimes he appears to be walking relatively normally,
sometimes he appears to be walking with a altered gait; what he is not seen doing on any of
these videos is moving quickly, even at the high school football practice. Notable is that the claimant

Page 41 of 49

 







 

is not seen, at'all, on the two Saturdays following a Friday night high-school football game that he
helped coach. This is consistent with the claimant's testimony that he makes it a point to be at the
Friday games for his boys, but at the cost of needing at least a day to recover. The testimony of
Dr. Becker, that the claimant is exaggerating his physical due to inconsistent results in a
physical capacities exam and inconstant physical abilities as" seen on a video surveillance does
impact the credibility of the claimant; but not enough to be persuasive that the claimant is fabricating
his 

The claimant has been diagnosed with Crohn's disease. The claimant's physician testi?ed it
would be speculation whether playing professional football and taking the medications during that
time caused his Crohn's, but there was potential Crohn's was aggravated by the medication. There
is no known cause of Crohn's and the claimant's testifying physician could not state on a more
probable than not basis when the claimant developed Crohn's; only that when he left professional
football, he had consistent with Crohn's. The testimony indicates that while the claimant
has Crohn's disease, it was not arise naturally and proximately, nor was it aggravated by medications
taken while playing professional football.

In comparing the testimony presented by the claimant With that of the employer, the claimant's
testimony is more persuasive.

DECISION
In Docket No. 15 20588, the claimant, Jerry Wunsch, ?led an appeal with the Board of Industrial 
Insurance Appeals on September 24, 2015.. The claimant appeals a Department order dated
September 15, 2015. In this order, the Department rejected the claim as an industrial injury and
occupational disease. This order is incorrect and is reversed and remanded with direction to the

Department to issue an order directing the employer to allow the claim as an occupational disease.

FINDINGS OF FACT

1. On November 23, 2015, an industrial appeals judge certified that the
parties agreed to include the Jurisdictional History in the Board record
solely forjurisdictional purposes.

2. Gerald Wunsch worked as a professional football player from 1997 to 2005.
From August of 2002 to September of 2005 he played for the Seattle
Seahawks; also known as Football Northwest, LLC. With the Seahawks he
played the football positions described as right guard, right tackle, and left
guard; he sometimes played tight-end; he also was on the kickoff return
team in the wedge. Job? duties included colliding with other professional
football players on a regular basis in games and practice; tackling other

Page 42 of 49

 



 

professional football players on a regular basis in games and practice.
Furtherjob duties included, on a regular basis in games and practice: giving
to and receiving from professional football players, violent forearms,
punches, slaps, elbows, and blows, to various parts of the body, including
the head and neck area; hitting other professional football players with his
helmet; being hit by other professional football players on his helmet;
violently pushing, shoving, grabbing, and pulling professional football
players. Attending mini-camps, training camps, pre-season practices,
regular?season practices and playing games was also a job duty of
Mr; Wunsch.

Playing professional football constitutes a distinctive condition of
employment; including participating in mini-camps, training camps, pre-
season practices, regular-season practices and games.

Gerald Wunsch's conditions diagnosed as: (1) closed head trauma with
complete loss of consciousness and concussion with post-concussive
(2) temporomandibular joint dysfunction bilaterally; (3) chronic
cervical sprain; (4) headaches, secondary to conditions one, two and three;
(5) obstructive sleep apnea; (6) sleep disturbances secondary to conditions
one, two, three, four and ?ve; (7) bilateral foot pain; (8) right carpal tunnel
(9) right cubital tunnel (10) bilateral absent nerve
responses in lower extremities; (11) triceps tendonosis; (12) mechanical
facetogenic neck pain arising from CS-CS and 06-07; (13) mechanical
facetogenic low back pain; and (14) neurocognitive disorder-dementia due
to head trauma; that all arose naturally and proximately out of distinctive
conditions of his employment as a professional football player with the
Seattle Seahawks.

Gerald Wunsch's conditions diagnosed as: (1) arthritis in both ankles; (2)
arthritis in both knees; (3) chronic high ankle sprains in both ankles; (4)
cervical-spine degenerative disc disease; (5) lumbar-spine degenerative
disc disease; (6) left hip labral tear; (7) right elbow arthritis; and (8) arthritis
right foot; all were aggravated by the distinctive conditions of his
employment as a professional football player with the Seattle Seahawks.

Gerald Wunsch's condition diagnosed as Crohn's disease did not arise
naturally and proximately out of, nor was it aggravated by, the distinctive
conditions of his employment as a player with the Seattle Seahawks.

CONCLUSIONS OF LAW

The Board of Industrial Insurance Appeals hasjurisdiction over the parties
and subject matter in this appeal.

Gerald Wunsch's conditions listed in ?nding of fact number four and ?ve
are occupational diseases within the meaning of RCW 51.08.140.

Gerald Wunsch's condition diagnosed as Crohn's disease is not an
occupational disease within the meaning of ROW 51 .08.140.

Page 43 of 49

 


DOWNQUTLOONA




 

4. The Department order dated September 15, 2015, is incorrect and is
reversed. The claim is remanded to the Department to issue an order
directing the employer to allow the claim as an occupational disease for'
the conditions listed in ?ndings of fact number four'and five.

Dated: March 6, 2017

Michael P. Ryan
Industrial Appeals Judge 
Board of Industrial Insurance Appeals

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Addendum to Proposed Decision And Order
In re Jerry Wunsch
Docket No. 15 20588
Claim No. SE-27622
Appearances
Claimant, Jerry Wunsch, by Law Of?ce of William D. Hochberg, per William D. Hochberg

Self-Insured Employer, Football Northwest, LLC, by Bauer Moynihan 8: Johnson, per Marcin
Grabowski

Hearing Testimony Considered
Claimant Witnesses

1. David J. Becker, M.D., board certi?ed in internal medicine and gastroenterology

2. Ken Smith, board certi?ed athletic trainer

3. Kenneth Greene, retired professional football player, friend of claimant

4. Brenda J. McCarthy, claimant's girlfriend

5. Gerald Wunsch, Jr., the claimant
a. Sustained objections: page 23, line 22 to page 24 line 7.
b. Stricken from the record: page 23, line 19 to page 24, line 23.
c. Overruled objections: page 87, line 18 to page 88, line 8; page 90, line 14 to 15.
d. Testimony made part of the record: page 87, line 17 to page 50, to line 22; this portion

of the record is not in colloquy.
Employer Witnesses

 

1. Patrick Bays, D.O., board certi?ed in orthopedic surgery
2. Marc A. M.D., board certi?ed in neurology
3. Douglas Robinson, M.D., board certified in 

Perpetuation Deposition Testimony Considered
The following depositions are published in accordance with WAC 263-12?1 17 with all objections
overruled and all motions denied except as indicated below.
Claimant Witnesses
1. Andrew 0. Schreiber, M.D., board certi?ed in adult neurology

i. Sustained objections: page 34, line 5-8; page 40, line 16-19; page 59, line 24- 
25; page 60, line 17-19, page 61, line 2; page 61, line 4?6; page 62, line 18-19;
page 62, line 24-25; page 65, line 15-16. 

Page 45 of 49

 




A


 

ii. Stricken from the record: page 33, line 25 to page 34, line 8; page 40, line 3?19;
page 59, line 19-25; page 60, line 1 to page 61, line 7; page 62, line 15-19; page
62, line 20 to page 63, line 2; page 65, line 13-20.

2. Jeffrey D. Watson, surgeon, board certi?ed-in general orthopedics
i. Sustained objections: page 48, line 21-24; page 49, line 13.

ii. Stricken from the record: page 48, line 18, to page 49, line 19; page 71, line 14
to page 73, line 20.

3. Jeffrey Fitzhum, M.D., D.C., board certi?ed in physical medicine and rehabilitation

i. Sustained objections: page 20, line 18-19; page 51, line 8?9; page 62, line 10;
page 70, line 13; page 76, line 10-14; page 76 line 10; page 78, line 16; page
78, line 22; page 92, line 8; page 94, line 9; page 100, line 13 and 22; page 101,
line 22 to page 102, line 2; page 102 line 5-8.

ii. Stricken from the record: page 20, line 13-19, page 51, line 1-9; page 62, line 8-
12; page 70, line 10?14; page 76, line 5-24; page 77, line 6-18; page 77 line 19
to page 78 line 1; page 78, line 2-10; page 78 line 11-21; page 78, line 22 to
page 79 line 2; page 92, line 4-10; page 94, line 5-11 and line 17-20; page 100,
line 10-23; page 101, line 10 to page 102, line 13.

4. Andrew Russman, 00.,
i. Sustained objections: None.
ii. Stricken from the record: page 54, line 10 to page 58, line 20
5. Richard A. Hoffman, clinical board certi?ed in 

i. Sustained objections: page 13, line 14-17; page 57, line 5; page 58, line 24 to
page 59, line 1; page 65, line 20; page 66, lines 2, 16, 22; page 67, line 6 and
15; page 70, line 17-18; page 71, line 15-17; page 91, line 14?16; page 92, line
4-6; page 92, line 17?18; page 95, line 19-21; page 96, line 15, 17, 19-21; page
98, line 4-5; page 99, line 3-4; page 106, line 12; page 118, line 8-11; page 6,
line 6; page 126, line 20-22.

ii. Stricken from the record:'page 13, line 7-17; page 57, line 3 to page 59, line 1;
page 65, line 17 to-page 67, line 16; page 70, line 13~18; page 71, line 11 starting
with "The cover", to line 17; page 90, line 7, to page 91, line 4; page 91, line 10-
20; page 91, line 21 to page 92, line 10; page 92, line 11-18; page 94, line 19 to
page 97, line 3; page 97, line 16 to page 98, line 19; page 98, line 20 to page
100, line 3; page 100, line 21 to page 101, line 2; page 106, line 8?14; page 108,
line 11-18; page 110, line 2 to line 25; page 117, line 14 starting with, "And he
was" to line 23; page 120, line 4-14; page 124, line 22, topage 125, line 15; page
126, line 16 to page 127, line 3. 

Signature was reserved. The court reporter certi?ed the transcript on
October 23, 2016. The Board of industrial Insurance Appeals received the
deposition transcript on October 25, 2016. Deponent signature is deemed.
waived pursuant to CR 30(e), 

 

Page 46 of 49




45 

 

Employer Witnesses

1. Charles K. Bedard, M.D., board certi?ed in internal medicine and gastroenterology,
retired in 2016

i. Sustained objections: None.
ii. Stricken from the record: None.

2. John Samuel Ramsden, Director of player and health performance for the Seattle
Seahawks, board certified as an athletic trainer

i. Sustained objections: page 97, line 24, to page 98, line 4; page 99. line 17-
20; page 104, line 15-17.

ii. Stricken from the record: page 97, line 22, to page 98 line 4; page 99, line 13
to page 100, line 1; page 104, line 14-18.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on October 28, 2016. The Board of Industrial Insurance Appeals
received the deposition transcript on October 31, 2016. Deponent signature
is deemed waived pursuant to CR 30(e), 

iv. Two exhibits were marked but never offered. They will remain with the
depositions.

3. Robert Jarrell, licensed private investigator
i. Sustained objections: None.
ii. Stricken from the record: None.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on November 8, 2016. The Board of Industrial Insurance Appeals
received the deposition transcript on November 10, 2016. Deponent
signature is deemed waived pursuant to CR 30(e), 

4. Brian K. McDonald, licensed private investigator
i. Sustained objections: None.
ii. Stricken from the record: None.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on November 15, 2016. The Board of Industrial Insurance Appeals
received the deposition transcript on November 1-9, 2016. Deponent
signature is deemed waived pursuant to CR 30(e), 

iv. One exhibit was marked but never offered. It will remain with the deposition.

5. David Dingwell, licensed private investigator
i. Sustained objections: None.?
ii. Stricken from the record: None.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on November 15, 2016. The Board of Industrial Insurance Appeals

Page 47 of 49

 





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received the deposition transcript on November 19, 2016. Deponent
signature is deemed waived pursuant to CR 30(e), 

6. Theodore Becker, board certi?ed disability analyst and examinee, and licensed
physical therapist

I. Sustained objections: none.
ii. Stricken from the record: none.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on November 16, 2016. The Board of Industrial Insurance Appeals
received the deposition transcript on November 19, 2016. Deponent
signature is deemed waived pursuant to CR 30(e), 

7. Stanley A. Herring, M.D., board certi?ed in physical medicine and rehabilitation, and
electrodiagnostic medicine

i. Sustained objections: page 56, line 2?14; page 60, line 5-14.

ii. Stricken from the record: page 55, line 24 to page 56, line 18; page 59, line
24 to page 60, line 18.

Signature was neither waived nor reserved. The court reporter certi?ed the
transcript on December 22, 2016. The Board of Industrial Insurance Appeals
received the deposition transcript on December 23, 2016. Deponent
signature is deemed waived pursuant to CR 30(e), 

8. Neil S. Jacobson, licensed private investigator
i. Sustained objections: None
ii. Stricken from the record: None
Reserved Rulings

(1) Motions to exclude the testimony of Drs. Hoffman, Fitzhum and Russman are denied.

(2) The motion to exclude the testimony of Dr. Becker is denied.

(3) Reserved rulings from the hearing of claimant's testimony are indicated above, in the
section of "Hearing Testimony Considered". Hearing of October 17, 2016.

(4) The motion to compel production of the ?nancial records of Dr. Robinson is denied.
Hearing of October 20, 2016.

Other

At the hearing of October 20, 2016 two exhibits were marked Exhibit Nos. 11 and 12 but were
not offered.

The employer exhibit concerning the video surVeillance, submitted in .mp4 format is
renumbered as follows: (1) .the computer ?le folder containing video surveillance titled May 12 15,
2015, 23 minutes and 52 seconds in length, shall be renumbered Board Exhibit No. 13; (2) the
computer ?le folder containing video surveillance titled November'6 8, 2014 Video 1, 28 minutes
and 59. seconds in length, shall be renumbered board Exhibit No. (3) the computer ?le folder
containing video surveillance titled November 6 8, 2014 ?,Video 2, 11 minutes and 44 seconds in

Page 48 of 49

 




#0301 

 

length, shall be renumbered Board Exhibit No. 14-3; the computer ?le folder containing video
surveillance titled November 13 15, 2014 ??Video 1, 13 minutes and 37 seconds in length, shall be -
renumbered Board Exhibit No. the computer ?le containing video surveillance titled November
13 15 Video 2, 15 minutes and 38 seconds in length, shall be renumbered Board Exhibit
No. the computer ?le containing photos titled November 6, 2014 to November 8, 2014,
numbered 1 102, shall be renumbered as Board Exhibit No. 16; the computer ?le containing photos
titled November 13, 2014 to November 15, 2014, numbered 1 262, shall be renumbered Board
Exhibit No. 17

Page 49 of 49