Ongoing Litigation Influences NHL Treatment of Concussions has partnered with LexisNexis to bring you this content.

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The Washington Times


Michal Kempny doesn't remember taking an elbow to the left cheek in a Sept. 25 preseason game against the St. Louis Blues. He doesn't remember any part of his shift before the injury, either.

"I saw it on the video," the Washington Capitals' blueliner said after his recovery. "I don't remember the whole shift when it happened. I had a little bit blackout."

Kempny received a concussion on the play. Blues defenseman Robert Bortuzzo was suspended two preseason games and the regular season opener for the illegal elbowing, but he returned to the ice for St. Louis before Kempny recovered and made his season debut for Washington.

It was Kempny's first concussion, and he didn't know what to expect with the recovery time.

"It was a little bit (frustrating)," the Czech said. "But I had to listen to my doctors. I had probably three, four days I didn't do anything. And then I started to like work out and little bit, like, body weights."

Kempny is on a growing list of NHL players who already have had a concussion in the young season joining Penguins goalie Matt Murray, Ducks winger Ondrej Kase, Canucks star rookie Elias Pettersson and Blues center Oskar Sundqvist. Sundqvist was injured by the Capitals' Tom Wilson in a different Washington-St. Louis preseason game.

Football has long been at the center of the so-called "concussion debate" in both youth and professional sports, and soccer, too, is struggling to deal with the connection between heading the ball and brain injuries. But hockey's relationship with concussions and chronic traumatic encephalopathy (CTE) is also complicated, including the ongoing litigation between retired players and the NHL and a reticence to admit a link between CTE and blows to the head.

USA Today polled 29 top NHL players in the preseason and found a majority (21 players) had moderate or high levels of concern about concussions.

Those CTE concerns are increasingly shared at the professional level by athletes looking to protect their long-term health, and, at the amateur level, by multitudes of parents and coaches worried about the kids.

Football has responded by settling lawsuits, scrambling to improve training and equipment and going as far as fundamentally changing rules to try to eliminate the most violent collisions.

Hockey? Well, they're working on it.

Diagnostic challenges

Capitals defenseman and alternate captain Brooks Orpik remembers a concussion he had while playing at Boston College at the turn of the century. Again, he doesn't actually "remember" he has no memory of the injury or the moments before it.

The hit he took "probably looked terrible," he said, but the next day he felt no lingering effects.

"And then there's ones where you see guys just get little glancing blows that don't look like much and then they're out for a few months," Orpik said. "I think that's the scary part. It's not like a bone injury where it's four to six weeks and you can tell exactly the timeline. Everybody responds differently."

The 38-year-old has played hockey across a few generations now, and he's seen how care for these injuries has evolved. When he was hurt at Boston College, he said the prescribed treatment was "to do nothing and wait it out."

"Now, you make sure you get your neck treated right away," Orpik said. "I know a lot of times, myself and other guys I've played with, you get a concussion and then you're actually over the concussion, but you still think you have it because you have a cervical sprain or another neck injury that gives you the exact same symptoms as a concussion."

Much of Orpik's experience was echoed by Michael Stuart, the chief medical officer for USA Hockey, who also had three sons play in the NHL.

"Instead of complete physical and cognitive rest putting an athlete into a darkened room and making them lay in bed we'll now actually have a very brief period of rest, sometimes as short as 24 hours, and then we begin some exercise," he said. "As long as it doesn't exacerbate symptoms or make them worse, it's probably helpful actually to get them exercising a bit."

There is also risk for keeping players isolated in a dark room for too long, as the social withdrawal can lead to symptoms of depression.

Andrew Peterson, a neurologist and sports medicine director at the University of Iowa, said handling concussions in youth hockey can include logistical obstacles, like simply getting onto the rink where a player is down and conducting diagnostic tests in tight spaces.

"You're oftentimes doing it around the bench, a very cramped area with a very rowdy group of folks hanging out around you," Peterson said. "It's always been a challenge to get a good evaluation just because of the setting."

Because concussion symptoms can evolve over time, Stuart said, researchers are looking for more "objective" means of diagnosis.

"We're looking at biomarkers, which are not ready for prime time," Stuart said. "But it could be that saliva or blood could give us insights about concussion."

Courtroom fight

In 2013, the NFL paid out $765 million to settle lawsuits brought by retired players who claimed the league should have done more to educate them about concussion-related risks inherent in the sport.

That same year, former hockey players brought a similar lawsuit against the NHL. The difference, though, is that the NHL is still fighting its lawsuit five years later.

A judge ordered the league and the plaintiffs to enter mediation, but NHL commissioner Gary Bettman said as recently as September that he thinks the suit "doesn't have merit." (Attorneys representing the retired players did not respond to requests for comment.)

In the NFL, a health official acknowledged a link between head trauma and CTE in 2016, marking a sea change from the league's previous stance that the science was not there yet.

The NHL, though, has held out and Bettman still denies a link between blows to the head and CTE.

The two sides were interested in facing off in a set of trials in 2019, but more recently, TSN reported that they are moving closer to a settlement.

All of this is not to say the league hasn't gotten more serious about brain injury along with the rest of the sporting world. A rule that banned checks to the head from a lateral or blind-side position was passed in 2010 in an effort to reduce concussions, though an independent study soon found the rule did not have that desired effect.

In 2015, the NHL followed the NFL in introducing designated "concussion spotters" trained officials whose duty it is to watch games and identify players who may have suffered a head injury. The following year, the league updated its concussion protocol to include "central spotters" watching every game from NHL offices.

But the concussion spotter strategy has weathered some criticism for ceding certain situations, like headfirst crashes into the boards, back to team doctors.

It's also hard to track just how many concussions NHL players experience, because teams are not required by the league to publicly release injury news. Many clubs stick to vaguer "upper-body" and "lower-body" identifications, which would lump a concussion into the same category as a sprained wrist.

Strides forward

USA Hockey, the country's governing body for the sport in charge of fielding Olympic teams and developing grass-roots amateur programs, does not have an official stance one way or the other on a link to CTE, Stuart said.

The doctor added his opinion is that current research including Ann McKee's work studying brains of deceased football players has yielded "alarming" data that needs deeper inquiry.

"Repetitive concussions are definitely not good for the brain," Stuart said. "The exact cause-effect relationship to progressive neurodegenerative diseases like CTE is certainly very worrisome and needs further study. But we know that progressive neurodegenerative diseases happen to people that have never played sports."

The NHL and USA Hockey work together on several marketing and charitable partnerships, but they do not have influence on each other's policies. Dave Fischer, USA Hockey's senior director of communications, said how the NHL chooses to "go down the path" of addressing concussions is up to them.

USA Hockey has done its part to make the sport safer. In 2011, it raised the age level for body-checking to the 13- and 14-year-old group. It's instilled a mantra of "When in doubt, sit them out" for coaches to err on the side of caution when a player might be hurt. And during October, it collaborated with the Concussion Legacy Foundation to promote "Team Up, Speak Up" Week, an effort to teach young athletes to report concussion symptoms.

"In the sport of ice hockey, I think we've been proactive," Stuart said. "We've made a lot of strides. We have a long way to go, but we have rules in place that will hopefully eliminate a lot of the dangerous activities that can cause injuries in the brain and cervical spine."

In the meantime, NHL players like Kempny and Orpik accept that concussions are still part of the risk of playing hockey.

"Hit like that happens. Things like that happen," Kempny said. "It is what it is. Like I said, I had to deal with it and now I feel great."

"There's only so much (the league) can do," Orpik said, " ... Some of that stuff, like the speed that we play at and as big as guys are, that unfortunately is gonna happen whether there's intention behind it or not."

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November 7, 2018


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