Questions on the Disability Plan… from an Expert

Nov 8, 2011

EDITOR’S NOTE: Several weeks back, the NFLPA put out a request to local chapters for three questions to send along to their big meeting in Washington DC. Disability Attorney John Hogan actually had a few questions to point out in the new CBA. John also has some observations from a recent case that was “approved” by the Disability Board:
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1. The CBA contains some significant changes in disability – specifically, there will no longer be a requirement to show that your disability is ALL football-related. Why weren’t these changes made retroactive so that guys who are disabled but denied football degenerative might be able to get a better deal?
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2. Who is the new neuro-cognitive benefit supposed to benefit? Guys have to be vested; have to be under 55; and not on disability. That would seem to cover a very narrow category of guys who manage to continue working in spite of a cognitive impairment.
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3. The CBA acknowledges the need for additional improvements to the disability plan and was supposed to name representatives to discuss same (with the League) by October 31st. Who did the Union appoint to this important position and what were his qualifications regarding disability law and procedure?
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4. Under the new CBA, the definition of “Total and Permanent” disability will allow players to receive up to $30,000 per year in earned income. (Article 61, Sec. 2 (a)(i)) As earnings this high are inconsistent with Social Security disability, for a player who is just applying for disability, he will probably have to go to a “neutral” examination. Are they going to change the questionnaires they send to the doctors to ask them whether the guy is capable of performing a job where he makes up to $30,000 per year? It would be totally inappropriate for a medical doctor to express such a vocational opinion. Most unskilled sedentary and light jobs would probably pay less than $30,000 per year – so how are they going to determine if the guy is disabled? (BTW – $30,000 per year is about $15 per hour.)
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And also under the new CBA, for applications filed after Sept 1st, if a guy is determined to be disabled, he gets the new “Category A” benefit if it is within 15 years since his last credited season. There will no longer be a need to show that it is football related. I have a couple of guys who have been denied football degenerative; but they are still within the 15 year time frame. The Plan has always allowed guys to re-file for disability – usually they have to wait a year. So, will they be able to file a new application, and be granted Category A? I have read and re-read the disability section of the new CBA several times. It does not say if a player first files – but just “files”. (A couple of my clients cannot take advantage of this because it’s been more than 15 years after they last played.) We should open this issue up for public discussion. (Of course, we could strongly suggest that De and the PA boys STRONGLY FIGHT to allow this!)
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We’ve also just uploaded a copy of the 2-page summary of Benefit Changes that the Bert Bell/Pete Rozelle NFL Players Retirement Plan recently issued to participants in the plan. It’s on Scribd for viewing and to make it downloadable for printing. You can also click the Enlarge icon in the lower right corner of the menu at the bottom of the viewing screen to go Full Screen for easier reading (and just hit the ESC key to close):
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2011 NFL/NFLPA Benefits Summary
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2 Responses so far | Have Your Say!

  1. Tony Davis
    November 8th, 2011 at 1:32 pm #

    Tony Davis

    Hey,

    This guy’s pretty smart…

    Tony Davis
    Cincinnati Bengals & Tampa Bay Buccaneers
    1976 – 1982

  2. Dave Pear
    November 8th, 2011 at 2:04 pm #

    Dave Pear

    Thank you, John Hogan!

    You ask a great question: “Why weren’t these changes made retroactive so that guys who are disabled but denied football degenerative might be able to get a better deal?”

    It seems that what the NFL does is change the name of a so-called benefit in hopes of confusing or lessening their liability.

    Here are two examples:

    1) The NFL chose two new co-chairmen — and a new name — for its committee on concussions which was originally called the NFL MTBI Committee (MILD traumatic Brain Injury).
    “Dr. Hunt Batjer of Northwestern University, and Dr. Richard Ellenbogen of the University of Washington will lead what now will be called the NFL Head, Neck and Spine Medical Committee, the League said Tuesday.”

    In my humble opinion, there’s nothing ‘mild’ about a brain injury but the NFL now wants to distance themselves from any liability, especially in having their name associated with brain injuries. Maybe if you change the name, the danger of repeated blows to the head will vanish? (I don’t think so). And the NFLPA just goes right along with it quietly…

    2) In 1995 when I applied for Total and Permanent disability the NFL’s own doctor (Hugh Unger) rated me “80% or greater disabled” and wrote in his examination report that I must rest frequently on the job. But he also wrote that I could do “sedentary work” and I was subsequently denied the benefit. The NFLPA did nothing when I asked for their help. This is another breach of fiduciary duty by ‘our’ Union.

    NOTE: Can you imagine applying for a job and writing on your job application that you are 80% or greater disabled and your doctor requires you to rest frequently while at work? I asked the NFLPA for help and they said there is nothing they can do. I asked what types of sedentary jobs I might apply for and they (Miki Yaras-Davis) said that they only enforced the decision and were not able to answer any questions!

    Also, there is a 15-year rule that states you must be found permanently disabled within 15 years of leaving football in order to receive any type disability. I guess that means you’re not a retired football player after 15 years? I wonder how they would explain that to their retirees if they did the same thing to members in the UAW or other REAL AFL-CIO Unions?

    So then they came up with Inactive Disability meaning that your injuries were not football-related or if you became permanently disabled 15 years or longer after leaving football.

    Now the new name is Inactive A category (which replaces football degenerative) and Inactive B category (which replaces Inactive).

    But as attorney John Hogan pointed out, he has represented retired players who have clearly qualified for full disability benefits after being examined by the NFL’s own doctors and then only receive Inactive B disability which is the lowest level of disability even though it was LESS than 15 years since they left football.

    This violates the NFL’s own plan document. And they still allow doctors to express their vocational opinions which is inappropriate at the very least.

    Nothing has really changed except for the new names given for concussions and brain injuries along with the continued disability debacle that was designed, created and still managed by the Groom Law Group.

    Regards,
    Dave & Heidi Pear