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John Hogan: Nothing has Changed

Jun 4, 2010

Just a quick update on two recent cases which clearly show that the NFL disability Plan (the Bert Bell/Pete Rozelle NFL Retirement Plan) needs significant reform as they continue to abuse ERISA laws, due process and the retired players to whom they owe a fiduciary duty of care:

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1. Jimmie Giles. (Jimmie has been open about his battle with the Plan, and has given me permission to discuss his case publicly.) Jimmie was one of the players who, having previously been denied in his attempt to obtain disability, had taken his early NFL retirement but was finally allowed to reapply for disability under the 2008 “window” process. Jimmie had applied for Social Security disability, and was found to be disabled by SSA in Nov. 2004 – which was within the 15-year window to be eligible for the higher-paying football degenerative total and permanent disability benefits. As the Plan was amended to grant NFL disability to those who were granted disability by SSA (Social Security), Jimmie was granted inactive (lower-paying) disability. The Plan provides that they will accept SSA’s decision unless at least four of the six Retirement Board members feel that the SSA decision was obtained by fraud. Also, despite what they told Congress in 2007, the Retirement Board still retained the discretion to send a player found disabled by SSA to see one or more of their doctors if necessary to make an “adequate” decision. [Read: To try to find a reason to deny the claim!] Recently, Jimmie was sent to see an NFL neutral physician and – without ever sending the report to him or me for comments – the Board denied his case once again.

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As Jimmie was found disabled by SSA, and there was no indication of fraud; and since he was found to be disabled within 15 years of his last credited season, it seemed to me that the only possible issue which might be addressed by an NFL physician was whether the disability was football related. However, when I received the neutral physician report – after the denial – it was obvious that the Plan never explained the circumstances of the situation to the doctor but rather just sent their regular request for an examination and opinion. The doctor set forth Jimmie’s various impairments to his spine and knees and expressed the opinion that he was not totally disabled. First, that opinion is irrelevant under the Plan’s acceptance of a Social Security disability award. Second, the doctor never expressed what limitations or work he thought Jimmie might be capable of. (Ignoring the explicit questions of the Plan’s own assessment form.) But most importantly, he stated that Jimmie’s impairments were caused by NFL injuries! That being the case, he should have been granted football degenerative, not denied.

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Also, the Plan now has a medical advisor, Dr. Stephen Hass, who purportedly reviewed Jimmie’s file. He expressed the opinion that Jimmie is not totally disabled due to football, but due in part to obesity. I have argued to the Plan that Jimmie was medically obese when he played, and that it is quite disingenuous to make an issue out of obesity, as none of the three NFL doctors who examined him listed his height and weight, nor mentioned or diagnosed obesity. If the Plan’s designated physicians are well-trained and following a standard protocol, it is obvious that obesity is something that they are not concerned with. In other words, in making an issue out of obesity, they are going out of their way to find a reason to deny him.

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I have sent my comments to the Plan administrators and asked them to reconsider in light of the fact that not giving me an opportunity to comment prior to the Board’s action is a violation of due process and ERISA regulations.

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2. (Unnamed player) is vested in the NFL, but played afterward in the CFL. The Plan sends him for an exam, and the doctor explicitly details his numerous injuries, taking great care to separate those injuries sustained in the NFL from those which occurred in the CFL. He completes all of the questions on the Plan’s standard questionnaire, and expresses the opinion that he is totally disabled just from the NFL injuries. Rather than grant the case, the Plan sends the file to one of their long time Medical Advisory Physicians. Without examining the player, without separating the NFL injuries from the CFL injuries and without stating what limitations the player might have, they opined in a very conclusory manner that he is not totally disabled from NFL. In the meantime, the Plan sends a letter to first examining doctor to clarify his opinion; he does, and in a concise, easily understandable manner, separates NFL from CFL and again explains why the player is totally disabled just from NFL injuries. The Plan is still not convinced – or should I say they’re not happy that their own carefully chosen doctor has indicated that the player is disabled due to NFL football! To be continued…

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It doesn’t matter that Tom Condon is no longer on the Retirement Board – it doesn’t matter who is on it so long as the system continues to violate ERISA laws, due process, and their fiduciary duty of care owed to players. Until the system undergoes major changes, the Plan will continue to deny those they don’t like on a whim, make stuff up as they go along and even fail to follow their own Rules and the ERISA law which is supposed to govern them.

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John Hogan

Disability Attorney

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14 Responses so far | Have Your Say!

  1. Dave Pear
    June 4th, 2010 at 1:52 pm #

    Dave at Home
    John,

    You are a sagacious disability attorney who understands firsthand the fraud that exists in the NFL disability plan !

    Thanks for continuing to expose this fraud.

    Until OUR Disability Plan is completely re-written and re-built so all disabled NFL players and their families finally receive access to their full, earned benefits along with their retroactive pay, NOTHING will change.

    Regards,
    Dave & Heidi Pear

  2. RobertinSeattle
    June 4th, 2010 at 3:25 pm #

    RobertinSeattle
    John -

    Thanks for two more real-life examples of how things have been done over the years. As far as we can see in every case we’ve had information on (including Dave’s), the biggest problem these people seem to be facing is that there’s absolutely no adult supervision. Not a single one of the people on the Board or in the management of this Plan appears to have any real experience with disability or pension funds. Zero! And yet they continue to act with total impunity and disregard for the law or even so much as to seek out advice of those who do have knowledge. Is there anyone really in charge over there?

    And yet, there are those who continue to insinuate that we should all stop complaining and pointing out flaws in the system (!). Well, in Management 101, you learn that identifying the problem(s) is the very first step in finding a solution. So for those of you out there still whining about some of us pointing out the problems, there’s another old saying: If you’re not part of the solution, you’re part of the problem.

    Unfortunately, it would seem there are so many problems that still need to be uncovered that this phase is still far from being complete. Every time you think you’ve seen it all, another incredible case comes out that leaves you scratching your head in disbelief. You just can’t make this stuff up.

  3. Thomas Henderson
    June 4th, 2010 at 6:26 pm #

    Hollywood Henderson
    I broke my neck in a Miami Dolphin uniform August 1981. Obviously I never played again after that. Being somewhat ignorant of my options, it took me 6 years to seek benefits. Did the whole doctor visits, CAT scans and MRI’s. All the doctors determined I was totally disabled from a football injury. Gene Upshaw invited me to New york for a Disability Board meeting where they were voting on my case. I actually testified at the hearing. I was asked to leave the room before the vote. Fifteen minutes later, Gene Upshaw approached me in the hall and said, “Hollywood,they don’t want to give you T&P (Total & Permanent) football disability.” He continued, “They think your cocaine addiction and a bar fight contributed to your neck injury, therefore they are offering to give you T&P non-football.”

    Now, keep in mind I had just beeen released from prison and dead broke. I accepted the deal fearing arbitration would rule against me. I collected that smaller amount for 18 years. Instead of $4,000.00 a month, I got $1,200.00 a month. Then in 2000, I won the Texas lottery and the Benefits office wanted to audit me for any profit or remuneration. They cut my benefits! I’m still trying to figure out when I stopped being disabled? I’m still disabled but can’t receive the benefits I earned. As a matter of fact, I never got what I deserved according to the plan. Thanks, Gene Upshaw.

    Thomas Hollywood Henderson
    1975 – 1982
    Dallas Cowboys (San Francisco 49′ers, Houston Oilers) Miami Dolphins

  4. Burt Grossman
    June 6th, 2010 at 7:18 am #

    Burt Grossman
    Hollywood,

    Off-topic, you being my all-time favorite player since I was young: What would be the odds of you sending me an autographed picture?

    Thanks,
    Burt G.
    San Diego Chargers, Philadelphia Eagles
    1989 -1994

  5. thomas henderson
    June 6th, 2010 at 2:26 pm #

    Hollywood Henderson
    Retirement Topic: I began taking my pension at 54 years 2 months. I receive $1,437.00 a month. I get this amount in spite of my taking the early retirement benefit in 1983. The plan restored that 25% deduction a few years ago. So, I now receive my full retirement. I had $6,000.00 in ’83 to do drugs – just being honest.

    Now, I want to speak to all you guys who think it wise to NOT take your benefits at 55 or earlier. I want you to get out a calculator and figure how long you have to live to make up the income of your pension if you take it now. For instance, I get $1400+ a month. Ten years times that amount is $168,000.00. If I had waited until 65 to draw $2300.00 a month instead, I would have to live 7-1/2 years past 65 just to break even! That’s 72-1/2 years old to recoup money that was mine ten years ago. Do your own math. To me, this would have been insane. I know some of you don’t need the money but that’s not my point. In your wallet or in their wallet is the question. I don’t need it but I get it. Don’t know if we’ll live to be 80. If I were one of the guys 54 and over, I’d seriously consider taking your pension. Do your own math and see how much longer you would have to live to recoup what you leave on the table for another ten years. Mine is in my wallet. Just a thought.

    Thomas “Hollywood” Henderson
    1975 – 1982
    Dallas Cowboys (San Francisco 49′ers, Houston Oilers) Miami Dolphins

  6. Burt Grossman
    June 7th, 2010 at 8:49 am #

    Burt Grossman
    How did you get the 25% early benefit restored? If you took that lump sum early and it lowered your monthly payments, how did you ever get them to restore it?

    Burt Grossman
    San Diego Chargers, Philadelphia Eagles
    1989 -1994

  7. Cody C. Jones
    June 8th, 2010 at 7:35 am #

    Cody Jones - Rams
    I hear you on that, Grossman! That’s got to be a brunch of bull – 25% of early payment benefit restored? Hollywood is joking! I guess when you’ve won the lottery, you take pleasure in having a laugh at the fellow retired players’ expense. I say you take back your request for his autograph (just kidding, Hollywood!).

    On a related subject, I just read the annual Benefit Report. It’s irritating to know you’re worth more dead than alive. If I could just get the same amount of money my wife would receive AFTER I’m gone, I could live OK while I’m still alive. Here’s how it reads: While I’m alive – $2600.00 a month with a joint benefit arrangements so that when I die, my wife will continue receiving that amount for the rest of her life. But if I die before my benefits begin, my wife gets $9,000.00 for 48 months, then $3,600.00 after that for the rest of her life!

    Why not pay me what she would get if I die? They still treat retired players like they’re dead already anyway.

    Cody C. Jones
    Los Angeles Rams
    1974 – 1982

  8. Thomas Henderson
    June 8th, 2010 at 8:29 am #

    Hollywood Henderson
    In 1983, I took a one-time payment of a little over $6,000 from my pension. The 18 years I collected T&P non-football disability, they deducted that benefit by 25% because of my taking the early retirement benefit. Then a few years ago, the plan raised my benefit by 25%. It’s a net even for me. If I had not taken the $6,000 in ’83, I would be getting more at this time. I would be getting 25% less than I’m getting now. If I had not taken that early benefit I would be getting $350.00 a month more now. Hope that clears that up.

    Thomas Henderson
    1975 – 1982
    Dallas Cowboys (San Francisco 49′ers, Houston Oilers) Miami Dolphins

  9. Henry Bradley
    June 8th, 2010 at 8:31 am #

    Henry Bradley
    The same thing happened to me that happened to Jimmie – I got inactive football. However, the last two doctors THEY sent me to said it was football-related. Until we make a stand and quit begging for something that’s already ours, they will continue to treat us like we have no value. I have had enough what-about-you. They have taken my money, mental and physical health and now they want our lives. Let’s do something for ourselves – that’s when they’ll finally know we’re serious!

    Pray to God and ask him what to do!

    Henry Bradley
    Cleveland Browns
    1979 – 1982

  10. Thomas Henderson
    June 8th, 2010 at 8:41 am #

    Hollywood Henderson
    Hey Cody,

    Why you sniping on me? ;-p These are my facts and experiences with the Benefits office. If you missed the notice, benefits were raised 25% a few years ago. Now, I do not know if that was for guys who took those one-time lump sum amounts or if they were for everybody. But my pension was raised 25%. This was what happened in my case.

    Thomas Henderson
    1975 – 1982
    Dallas Cowboys, Miami Dolphins

  11. Burt Grossman
    June 8th, 2010 at 9:22 am #

    Burt Grossman
    That 25% bump was for everybody. A good PR move for a public that doesn’t know any better. 25% sounds like a lot and under normal pensions it would be but the sad truth is for most retired players, it actually represented about an extra 75 bucks or less a month!

    Burt Grossman
    San Diego Chargers, Philadelphia Eagles
    1989 -1994

  12. Dave Pear
    June 8th, 2010 at 10:10 am #

    Dave Pear Superbowl Ring
    Guys,

    Let’s keep in mind, the NFL makes up this stuff as they go. They do it on the fly. There are no standard operating procedures and they make up their own rules. In fact, there’s no standard at all.

    What we do know is that the NFL, NFLPA, and the Retirement Board has and continues to violate ERISA Law, HIPPA and our civil rights with malice.

    Also, we know that the NFLPA Leadership did three ruthless things to retired players once Gene Upshaw left the building:

    1) They gave his estate $16,000,000! How much more in deferred money will his estate be paid? How much more money did he hide in bank accounts offshore?
    2) They rename their own building “UPSHAW PLACE”
    3) They renamed the dire need fund “The Gene Upshaw Dire Need Fund.”

    Remember Gene Upshaw’s dog food statement to retired players when he unwittingly said, “We could have the greatest dog food in the world but if the dogs don’t like it, we can’t sell it.” That “we” is the NFLPA Leadership that breached their fiduciary duty to retired players by scrambling our identities in the Players Inc./Electronic Arts swindle.

    This same NFLPA Leadership (and their smiling faces) were convicted in Federal court last year of “malicious and oppressive conduct with evil motive” and “conduct that was outrageous and grossly fraudulent” and ordered to pay over 2,000 retired players $28,100,000 in damages are still in power.

    To say “the rift is over with retired players” is so far from the truth. BP CEO Tony Hayward also said that the oil catastrophe in the Gulf of Mexico was going to be very, very minimal and now he wants his life back is also not the truth.

    When will retired players receive their due compensation from the greedy NFL?

    Please – no more meaningless and hollow words or worthless benefit programs.

    Sincerely,
    Dave & Heidi Pear

  13. Cody C. Jones
    June 8th, 2010 at 10:49 pm #

    Cody Jones - Rams
    Hollywood,

    I just wanted to get to the facts, man. I got nothing against you. Dave, I know you don’t appreciate your blog being used for these purposes but we as retired players need to stop tripping.

    I was at a meeting for the NFLPA last month. I suggested that the heads of the NFLPA and the NFL Alumni get together and any other entity for retired players so we could show some unity. The rep speaking said the NFL Alumni and Fourth and Goal can’t be trusted because of monies given to them by the owners – the old divide-and-conquer. I personally don’t think the NFLPA is interested in doing what’s best for retired players. We need to get our s**t together before this next CBA is reached.

    Cody C. Jones
    Los Angeles Rams
    1974 – 1982

  14. A Window Into the Toll of the N.F.L. - The Fifth Down Blog - NYTimes.com
    June 24th, 2010 at 2:45 am #

    [...] For another perspective on the trail of damage left behind by the game, go to Dave Pear’s blog, in which players like Thomas Henderson, known as Hollywood, discuss their pension and disability cases. [...]

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