Page 6 - September 2020 NFL Newsletter Lawyers Edition

the neuropsychological test battery does not Player’s functional impairments were more likely
Published Decisions by the Special Master
e post all decisions the Special Masters designate to be published on the
WSettlement Website (under “Documents” click “Special Master” below
“Published Decisions”). Several recent Special Master rulings that affect Monetary
Award Claims are on the site:
Validity Testing and Cause of
Functional Impairment
In this August 19, 2020 decision, the Claims
Administrator denied the Retired NFL Football
Player’s claim based on concerns regarding
performance validity on his neuropsychological
testing as well as inconsistencies between his
reported level of functional impairment and the
Qualifying Diagnosis.
a. Performance Validity The Special Master
explained the two ways that the Settlement
explicitly addresses performance validity. First,
for Level 1.5 or 2 Neurocognitive Impairment,
clinicians must include performance validity
tests—both embedded and standalone—in the
neuropsychological test battery. These tests
6 INSIGHTS Lawyers Edition September 2020
end the validity analysis. There are instances
in which a patient will obtain “passing” scores
across all performance validity tests, but the
clinician might nonetheless determine that his
neuropsychological test results are invalid. The
Appeals Advisory Panel (“AAP”) automatically
reviewed this claim because the Player’s diagnosis
predated the Settlement Effective Date. The AAP
Consultant and AAP Reviewers found that the
totality of the circumstances triggered significant
Slick criteria concerns. The Claims Administrator
adopted the well-reasoned conclusion of the
AAP that the Player’s neuropsychological testing
performance did not support his Diagnosis, which
the Special Master concluded was not clearly
erroneous.
b. Cause of Functional Impairment Level 2
Neurocognitive Impairment requires evidence
of moderate functional impairment based on the
CDR scale in the areas of Community Affairs,
Homes and Hobbies, and Personal Care. As
explained in FAQ #113, the impairment must
result from cognitive loss
instead of other factors
such as “physical handicap
or injury, chronic pain,
sleep apnea, or other
causes….” FAQ #113 also
directs that, “[i]n situations
aim to provide a quantitative basis for detecting where the diagnosing
minimal effort or deliberate underperformance. physician determines
that a Player suffers from
Second, clinicians must evaluate performance
validity by completing the Slick et al. checklist of functional impairment that
nine validity criteria. Eight of the nine Slick criteria is due to both cognitive
require the clinician to qualitatively assess the loss and emotional/
Player’s performance, which involves considering psychiatric factors . . . the
whether there are discrepancies between the diagnosing physician
Player’s scores and should, to the extent feasible, then attempt to
his observed behavior, isolate the functional impairment due to cognitive
collateral reports loss alone and assign a CDR rating based
and documented solely on that cognitive loss.” Issues of chronic
pain and psychiatric dysfunction consistently
background history. As appear in the Player’s medical records, which
these are independent the diagnosing physician reported but offered
requirements, passing no explanation as to the bearing these factors
at least two of the have on the Player’s functional impairment.
performance validity The Claims Administrator determined that the
tests included in
September 2020
mood-driven than due to cognitive loss and there
is nothing in the record that counters or even
addresses that determination. Thus the Special
Master determined that the available evidence of
the Player’s functional impairment did not support
a diagnosis of Level 2 Neurocognitive Impairment.
Evidence to Support a
Qualifying Diagnosis
On September 5, 2020, the Special Master issued
a decision denying the appeal of a Representative
Claimant who argued that the Retired NFL Player
should have been awarded a different Diagnosis
than the Pre-Effective Date Level 1.5 Neurocognitive
Impairment Diagnosis originally submitted. The
later Diagnosis of Alzheimer’s Disease was based
on evidence that was not before the Claims
Administrator. According to the Settlement, to
recover for a Pre-Effective Date Diagnosis, the
Player must come forward with evidence generally
consistent with each of the criteria listed in
Exhibit 1 (Injury
Definitions). The Special
Master explained that
contemporaneous proof of
each listed claim must be
evaluated on its own terms,
paying attention to the
actual evidence before the
Diagnosing Physician and
the Claims Administrator.
The Representative
Claimant also argued that
it was clear error for the
Claims Administrator to
note in its denial of the claim
the discrepancy between the Player’s presentation
and functioning at his doctor’s appointment with his
neuropsychological test scores because the ultimate
determination of the sufficiency of the evidence must
be left to the Diagnosing Physician. However, the
Settlement Agreement provides that Pre-Effective
Date claims, like that of the Representative Claimant,
are subject to independent AAP Review.
Click here to read these decisions.
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