The Intelligent Quarterly from the publishers of The Insurance Insider

Autumn 2017

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Sport on the brain

Michelle Crorie and Alison Olof

In February, researchers from University College London suggested that brain damage in professional footballers could be linked to a lifetime of heading the ball.

As Clyde & Co's Michelle Crorie and Alison Olof examine in this article, this and other recently published studies into concussion and brain damage in sports professionals are being examined carefully by the insurance industry.

The concern is that a wave of insurance claims from players in a wide spectrum of sports may be looming. Such issues are already being seen in the US, and the debate has started in the UK, particularly among those involved in elite rugby.

For the accident and health insurance industry and those providing liability policies to sports teams, the issue of concussion raises questions as to their exposure for concussion-related injuries. It also throws a spotlight on action taken to mitigate risks - such as withdrawal from play or delay in return to play - and how it may affect clubs and players.

When considering the risk arising from concussion, medical evidence is likely to be crucial, and medical understanding is continuing to evolve.

Potential cumulative effect

Concussion can be classed as the temporary loss or alteration of consciousness or amnesia. It is described often as a form of traumatic brain injury. However, it is uncertain whether this represents an actual physical injury within the meaning of certain policy provisions, even temporarily, particularly where a brain scan indicates no damage.

In mild cases, an individual may not entirely lose consciousness or do so only briefly, and usually recovers within days. In more severe cases, individuals can exhibit cognitive and emotional symptoms over a longer period, including difficulties with memory, concentration and anxiety, as well as headaches, dizziness and balance problems.

The absence of baseline testing in some sports can make identifying the severity of cognitive symptoms difficult.

Incidences of concussion only appear to be increasing in professional rugby. A recent medical study (British Journal of Sports Medicine, 2015) found that the incidence of match concussion reported across the two seasons of 2012-13 and 2013-14 was approximately double that previously reported in a 2008 medical study (Clinical Journal of Sport Medicine, 2008).

One reason for this may be increased awareness and reporting, but it should also be considered that players are increasing in build and speed and so the potential for head impacts is becoming greater.

Medical experts have indicated a trend that those suffering from concussion may become more susceptible to further episodes that apparently increase in severity and recovery time.

Whether there is a causal link between the occurrences of concussion or whether it is behavioural (i.e. individuals affected continue to undertake dangerous activities with the resultant elevated risk of future episodes) is an issue that is being considered carefully by the medical profession.

However, the possible cumulative nature of a series of increasingly severe concussions raises questions in relation to policies that require that "disablement" results from a single traumatic event. Furthermore, these policies often insure for disablement which arises within a specified period rather than many years later.

Sports organisations in the UK have responded to concerns over concussion by introducing return-to-play protocols and guidance on identifying concussion symptoms.

Some may be concerned that allegations could be levied against them for being slow to recognise the risks. Equally, they may be vulnerable to the argument that they inaccurately implemented appropriate protocols due to players subsequently suffering from permanent cognitive problems.

Where cumulative problems do arise, the question for liability insurers will always be how responsibility for alleged negligence will be allocated across the years.

Long-term impact

While many manual workers or sports professionals will accept that physically their body will degenerate quicker than the average person due to the additional stress it has been placed under, mental degeneration does not appear to be acknowledged or accepted as a risk of certain occupations.

The long-term effects of head impacts indicate a worrying tendency towards significant neurological conditions in later life. A recent medical study (Acta Neuropathologica 2017), running from 1980 to 2010 examined 14 retired soccer players who were skilled headers of the ball until their deaths.

Concussion was only reported in six of the 14 players and was limited to a single episode each in their careers. Nevertheless, in all 14 cases players had developed progressive cognitive impairment with an average age at onset of 63.6 years and average duration of 10 years. In addition, six of the players were examined by post-mortem and all revealed septal abnormalities.

The examination of the players by post-mortem also diagnosed four players with chronic traumatic encephalopathy (CTE), a degenerative disease of the brain found in people with a history of repetitive brain trauma.

An established phenomenon in boxing, it is an open question whether CTE will manifest itself in individuals and sports professionals who have suffered instances of mild or repeated head trauma. Medical experts are also concerned about the risk of early onset dementia in professional sports players who have suffered concussive events.

Therefore, one of the issues for insurers of personal accident policies where concussion has been raised is the extent to which their degeneration or "degenerative process" exclusions will operate where a brain impact occurs and aggravates a degenerative process that was already in train.

The worried well are also a significant risk for insurers and their insureds. Following a number of concussive events, players may wish to retire rather than risk further concussive events of increasing severity and possible long-term neurological conditions. The legal consequences of such a decision will likely be debated in each case.

A further question might be how injuries in amateur and school sports will be handled. The Rugby Football Union has recently updated its recommendations to schools around the gradual introduction of full contact, and there is a debate as to whether young children should be prevented from heading in football.

Future concussion claims

In dealing with concussion claims, a key problem with identification and treatment of cognitive difficulties is that they are often diagnosed by reference to the individual's subjective reports of their symptoms. These can be exacerbated by other issues such as the individual's anxiety. At this time, a diagnosis of CTE can only be made during a post-mortem examination.

The consequences of concussion are also still being considered by doctors. The medical study of professional rugby players over two seasons referred to earlier (Br J Sports Med 2015) analysed players diagnosed with concussion who returned to play in the same season following satisfactory scores in clinical tests which indicated they had returned to their baseline results.

This study found the incidence of any injury occurring during the same season was 60 percent higher than those players who had not suffered a concussion. A similar increase is also seen in professional soccer, where the incidence of further injury following a concussion and a return to play in the same season was 50 percent higher (Br J Sports Med, 2014). While traditional personal accident policies may not be designed to respond to these type of issues, a bespoke answer may be available. "Concussion only" insurance is already being discussed between industry professionals. Liability insurers, however, may wish to consider reviewing their historic portfolios.

In light of the uncertainties surrounding the medical background to concussion, underwriters from all sectors that touch on professional sports should watch the unfolding situation carefully.

Michelle Crorie is a partner with Clyde & Co

Alison Olof is a solicitor with Clyde & Co

This article was published as part of issue Summer 2017

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