More Lawyers…
This story started a couple of weeks ago when I was reminded that Valerie Cross was the person listed as the Director of Player Benefits for the Bert Bell/Pete Rozelle NFL Players Retirement Plan. So I went ahead and called her office. My call got directed to her voicemail and I left a message asking her to call me back regarding some questions that I had about my benefits as well as my HIPAA/ERISA rights. The story continues in the following e-mails:
Dear Mr. Lamade,
On July14, 2009, a Jo-Ellyn Klein left a message on my phone recorder which said Valerie Cross (Director of Player Benefits) asked her to call me to follow up on a message I left (for Valerie) concerning HIPAA. She went on to say, “We’re happy to assist you” and to give her a call. When I returned her call the next day I asked Jo-Ellyn how long she had worked for the NFL because she had not properly identified herself. However, I had to ask her at least 3 times before she said that she was calling on behalf of Larry Lamade (from Akin Gump!) to find out what were my HIPAA questions?
Jo-Ellyn Klein - Akin Gump
After I hung up the phone, I later discovered that Jo-Ellyn Klein was also an attorney with Akin Gump. (?!!)
I sent her my questions but I have not heard back from either of you. I am sorry to bother you again but would you please assist me in answering my questions I gave her at your earliest convenience. (see below)
Sincerely,
Dave & Heidi Pear
————————————-
Dear Mr. Lamade, (sent 7/19/09)
As a partner for Akin Gump in Washington, D.C., you have represented the League for over 30 years and I thought you might be able to assist me in answering these disturbing questions. The NFL Players Association has been found guilty of breaching their fiduciary duty to retired players in the Players Inc. trial.
Please help me to better understand the motive of the NFLPA and the NFL by answering these questions.
1) Section 8.8 of the Plan provides “The Retirement Board and the Disability Initial Claims Committee will discharge their duties with respect to the Plan and Trust solely and exclusively in the interest of the Players and their beneficiaries, and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matter would use in the conduct of an enterprise of like character and with like aims. …” While the late Gene Upshaw and the NFLPA have taken most of the heat for the failings of the disability system under the Plan, it should be noted that the Bell/Rozelle Retirement Plan is a joint venture with the NFL Management Council, and the ex-officio Chair of the Retirement Board is the NFL Commissioner. (Plan section 8.1 (c)) Furthermore, it appears that it may well be the NFL Management Council-appointed members of the DICC and Retirement Board who routinely vote to deny claims, often without any substantive justification. Last year Congress heard many stories of players’ claims which were denied even after several favorable opinions from the Plan’s own neutral physicians. It is apparent that those deciding disability claims are violating their duty of loyalty and care – not to the NFL – but to the Players and their beneficiaries.
- Please explain why the NFLPA and the NFL are violating their duty to loyalty and care to players and their beneficiaries?
2) Furthermore,their fiduciary responsibilities charge them with the duty of skill, care and prudence to act like others operating a similar enterprise (i.e. – adjudicating disability claims). Here there is a significant failing, as the Plan asks examining physicians to determine whether players meet their definition of disability, which in a nutshell, is whether “…he is substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit…” (Plan section 5.2). My disability attorney John Hogan has been specializing in disability law for well over 30 years, handling claims in many forums, including Social Security, the VA, the Railroad Retirement Board and with most major insurance carriers. In each of those forums, a physician cannot make the determination of whether someone can work. Rather, they set forth the physical and mental restrictions which a claimant possesses, and then a qualified vocational specialist considers such factors as age, education, work experience, past earnings, etc,. (depending upon the specific requirements) to determine whether a person with the claimant’s medical limitations is in fact capable of working. The vocational factors of whether a retired player meets the Plan’s definition of disability are completely missing from their disability determinations and thus, the Plan is failing in their fiduciary duty to act with the skill, care, prudence and diligence they are required to exercise.
- Why is a physician allowed to make the determination of whether someone can work?
- Why are the above mentioned vocational factors completely missing from the disability determination?
- Are these principles in compliance with ERISA Law?
3) In June of 2007, after the meeting in Washington DC with Gene Upshaw/Roger Goodell and Congress, the NFLPA Leadership posted my personal medical information on their public website (NFPLA.org) in their so-called White Paper WITHOUT my permission.
(Click HERE to read our earlier post on the Truth Squad.)
- Please explain why this is not a violation of my HIPAA rights?
- Who gave the NFLPA Executive Director permission to violate my civil rights?
4) On February 3, 2008/The Washington Post Magazine (Super Bowl Sunday) pg.26, par.6: Gene Upshaw’s own attorney Lanny Davis corrected Gene for not properly understanding federal law governing retirement and disability benefits. Gene stated, “it’s the law” that a retired player could not receive a pension and a disability benefit. However, it is not the law, “Its discretionary,” as Mr. Davis pointed out to Gene Upshaw who was the Executive Director of the NFLPA. (Click HERE to read The Pain Game from Michael Leahy.)
- What records, charts and statistics did Gene fish out of my file to show Michael Leahy a staff writer for The Washington Post?(b) Who gave Gene Upshaw permission to open the file and “fish out” my medical records?
- What charts and statistics did Gene also share with the newspaper?
- Where was the Human Resources (HR) Department when this incident occurred?
In the Players Inc. trial (November 2008) the language in the courts that jurors found the union to be guilty of included such phrases as “malicious and oppressive conduct with evil motive,” and “conduct that was outrageous and grossly fraudulent.” The NFLPA Leadership was found guilty of “Breaching their Fiduciary Duty” towards retired players. Surely they are guilty of doing the same for disability.
malicious: given to, marked by, or arising from malice: (1): the desire to cause pain, injury or distress to another. (2): intent to commit an unlawful act or cause harm without legal justification or excuse.
- Was this type of behavior standard practice for the Executive Director of the NFLPA ?
- Please explain why this HIPAA privacy compliance was breached?
Please respond at your earliest convenience. Thank you.
Dave & Heidi Pear
P.S. - This story wouldn’t be complete without linking back to the original Lawyer story from last year: (Read that story by clicking HERE.) And here’s the link to all the paperwork related to my case in which I was turned down multiple times over the past 20+ years (click HERE).
Bob Grant
July 30th, 2009 at 7:29 am #
Dave,
These folks are going to continue the dodging and evasive tactics that they have been employing in the past because they think that no one is listening or paying attention to your pleas and demands for answers that are long, long overdue. Maybe they don’t know that this site gets over 225,000 visitor/readers per month. Maybe they think that you are going to just suddenly quit if they continue pretending that you don’t exist.
I would like to suggest that you have Robert give all of us the opportunity to show that we support you and all of the other injured Retired Players who have been and continue to be ignored. I would like to be the first to sign such an online petition if a form can be set up on the “Pear” site that will allow me to do it online there.
The folks at both the NFL and the NFLPA drawing their large salaries are, to some degree, doing so because they continue to avoid paying you and the many other Retired Men who have contributed so greatly to “The Game.”
I certainly would not say that these folks are “War Criminals” or anything like that but in many ways their behavior and way of doing business demands that they be held responsible someday. They will of course claim that they were just “following orders.” You know the other lines like “I was just doing my job.” HOGWASH!
It is hard to believe that they would deny fair and proper aid to guys like you in your upcoming spinal surgery (about your 12th operation, I think) and Jim Summers (who remains partially paralyzed after enduring 40 years of constant chronic pain). Folks at the NFL and the NFLPA continue drawing their fat checks on the 1st and 15th of every month though. I hope they choke on the money.
Dave Pear, going in for yet another surgery! Conrad Dobler close to losing a leg now! I am getting pretty tired of this and there must be others of you who feel the same way.
Maybe we should design a deck of 52 playing cards, the way that we did in Iraq, that shows who the guilty ones are.
Bob Grant
Retired Player Activist
Sharon Hawkins
July 30th, 2009 at 7:49 am #
Dave and Heidi,
I am floored with the information in this email!!!
Let’s have another Congressional Hearing….yes, I know they take August off, but, geez… we have to make all this info known to our Congressmen and Congresswomen – NOW.
Don’t we have help within the halls of Washington? This situation has dragged on too long. It has to be handled ASAP (not news to you and all of us)…so frustrating…the NFLPA
must be held accountable for the travesties experienced by so many players. I admire your tenacity and I know it comes from being screwed!
Thank you for your hours dedicated to this cause. “We will overcome.”
Sharon on behalf of Wayne Hawkins
Oakland Raiders
Larry Lamade
July 30th, 2009 at 7:52 am #
Dave,
I spoke to Jo-Ellyn about her phone call with you. My apologies for the delay in responding to your questions but I am on vacation this week with my family. I have a number of meetings next week when I return. As soon as they are out of the way, I will respond to as many of your questions as I can.
I hope that your recovery has gone smoothly.
Larry Lamade
Bernie Parrish
July 30th, 2009 at 8:53 am #
Nice note, Dave. Did you ask Lamade what role he played in that meeting he attended in 1995 when they turned you down? They kept minutes of those meetings so maybe Lamade will send you a copy of those minutes since he was there.
Bernie Parrish
Larry Kaminski
July 30th, 2009 at 8:55 am #
Dave:
Excellent and fair request. Keep up the pressure and great work. I will copy and send to my reps and senators.
Larry Kaminski
Poulsbo, WA
Na Zdrowie
GO PURDUE
Dave Pear
July 30th, 2009 at 10:10 am #
Dear Larry,
Thanks for your e-mail. I hope you and your family are having a nice vacation.
I look forward to your response to my questions. I have outlined my observations and questions about HIPAA/ERISA in this post.
I’m scheduled for more spine surgery next month.
Sincerely,
Dave Pear
George Visger
July 30th, 2009 at 11:27 am #
Dave, Heidi and all the other wounded brothers and their families who suffer more than we do.
I applaud your tenacity over the YEARS you have dealt with all of this crap. I am with Bob Grant, Larry Kaminski and all the others who realize the strength we have if we pool our resources.
I will be the first to sign a petition, and I just sent letters to my Senators (Senator Dennis Hollingsworth and Senator Tom Harmon) here in CA last week RE: a bill just passed in the state of WA (HB 1824 Youth Sports) which now requires all football coaches from Pee Wee Pop Warner up to have formal concussion training. I am a man speaking with experience of having survived fractured C6 & C7 & S 8 vertebraes, 3 knees and 9 brain surgeries ( I have a VP shunt in my head that drains spinal fluid into my abdomen 24/7) and multiple grand mal seizures as a result of developing hydrocephalus (water on the brain) during my last season with the 49ers in 1981. I was forced to sue the 49ers for Work Comp to get brain surgeries #2 & #3 paid for (conducted 10 hours apart and I was given last rites) – all just 4 months after we won the Super Bowl! It took me 5 years of dealing with creditors – and folks who never had the backbone to strap on a helmet – question my injuries, until I finally won in 1986.
I feel all of your pain and I’m freaking pissed. I am currently battling The Travelers Insurance to be able to attend Dr. Amens Clinic in New Port Beach CA for a full neuro evaluation (3 days). This is the same Dr. Amen who conducts the free brain scans and evaluations for retired NFL players and he is trying to compress the free NFL evaluation AND his 3-day evaluation into 2 – 14-hour days for me, so Workers Comp will pay. I tried to attend the 1-day NFL evaluation last year but could not afford to drive 7 hours down for the all-day exam. I’m also currently working with The Sports Legacy Institute conducting Coaches Concussion Clinics, and as of the first, I’ll be involved with Mt Tamalpais High school in Mill City CA on Aug 16.
Hang in there brother. You, Heidi and the rest of our NFL brothers are all in my prayers.
We shall overcome.
George Visger
San Francisco 49ers 80 & 81
George Visger
July 30th, 2009 at 11:31 am #
P.S.:
Larry -
Hope you enjoy your vacation and you can find time to respond to Dave and Heidi Pear before he has another 2 or 3 surgeries.
Be careful and please stay out of the sun!
George Visger
San Francisco 49ers 80 & 81
D.D. Lewis
July 30th, 2009 at 12:12 pm #
Dave -
Keep at them. And I can’t wait to see what kind of reply he makes to your request.
D.D. Lewis
Dallas Cowboys 1968 – 1981