Page 6 - 3rd Quarter 2021 NFL Newsletter - Lawyers Edition

Audit
Published Special
Master Decisions
Three recent Special Master rulings
that affect Monetary Award Claims are
now on the site:
Functional Impairment
Relying on the review and recommendations
of an AAPC and AAP Member, the Claims
Administrator denied the Player’s claim for Level
1.5 Neurocognitive Impairment. The Claims
Administrator comprehensively explained
why the Player’s diagnosis was not generally
consistent with the Settlement criteria for Level
1.5 Neurological Impairment, specifically criteria
(ii) evidence of moderate to severe cognitive
decline . . . in two or more cognitive domains
and criteria (iii) functional impairment. As FAQ
113 makes clear, the Diagnosing Physician’s
report is a key document in evaluating whether
the Player has adequately come forward with
evidence of his functional impairment. That
report is supposed to pull together the Player’s
medical history, relevant documents and the
physician’s articulated judgment. The Special
Master upheld the denial in this May 28, 2021
decision, concluding that the MAF Physician’s
report and supplemental email concerning the
Player’s functional impairment do not establish
a CDR of 1, and thus cannot support an overall
award of Level 1.5 Neurocognitive Impairment.
6 INSIGHTS Lawyers Edition Third Quarter 2021
The Claims Administrator denied the Player’s
claim and during the pending appeal, the claim
was placed into audit. The Claims Administrator
provisionally found a potentially material piece of
evidence to be fabricated, which led it to doubt
the trustworthiness of a key source of information
about the Player’s functional impairment. That
source was subsequently excluded from the
record so the appeal could move forward.
However, the Settlement Program demands
that its fiduciaries work efficiently to pay valid
claims: one of the Special Masters’ primary
duties is to make sure that the documentation
and evidence that they rely upon as custodians
of the Monetary Award Fund is reliable. As a
result, on June 3, 2021, the Special Master
ordered the Claims Administrator to reopen
the audit and make findings about whether any
of the Player’s statements and documentary
submissions misrepresented or omitted material
facts, and if any misrepresentations were found,
what role the Player’s law firm had in such
misrepresentations.
Slick Analysis and Functional
Impairment
The Claims Administrator denied this claim
on multiple grounds, including unaddressed
Slick validity criteria and an unclear and
underdeveloped record regarding the
Player’s daily cognitive functioning. On July
1, 2021, the Special Master found that the
neuropsychologist’s assessment fell well short
of a thorough consideration of the claim’s
inconsistencies and instances of potential
invalidity and did not reflect an articulated
judgment about the Slick criteria. The clinician
also failed, to the extent feasible, to attempt to
isolate the functional impairment due to cognitive
loss alone and assign a CDR rating based solely
on cognitive loss, as required by the Settlement.
e post all decisions the Special Masters designate to be published on the Settlement
WWebsite (under “Documents” click “Special Master” below “Published Decisions”).
Click here to read the decisions published so far. We encourage you to check the
Settlement Website often and read any new decisions because they serve as guidance for
the consideration of the same or similar issues and principles in later decisions. Let us know
if you have questions about any of the posted rulings or how they might affect you.
New FAQs and Recent Revisions to Existing FAQs
In our quarterly Status Reports we file with the Court, we describe all new FAQs and changes to
existing FAQs. As reported in Claims Administrator Status Report No.13 filed on July 29, 2021,
we added two new FAQs in the Special Master Appeal Decisions category:
FAQ 373. Is the diagnosing physician required to interview a knowledgeable
informant as part of the CDR evaluation?
FAQ 374. Is driving generally consistent with the required CDR scores for
Level 2 Neurocognitive Impairment?
We also made substantive revisions to five existing FAQs:
1 We revised FAQ 103 (“What does “generally consistent” mean?”) to clarify further what
“generally consistent” means based on a published Special Master decision;
For FAQ 109 (“What must the medical records show for Level 1.5 and Level 2
2 Neurocognitive Impairment diagnoses made in the BAP by Qualified BAP Providers?”), we
added a Reminder explaining what it means for cognitive deficits to occur exclusively in
the context of a delirium, acute substance abuse, or as a result of medication side effects,
and noted that a diagnosing physician may reschedule a Retired NFL Football Player’s
appointment if he or she believes that the Player’s clinical presentation may be, in part, the
result of substance abuse or medication side effects;
3 We revised FAQ 364 (“How should a Qualified MAF Physician apply the Generally
Consistent standard when making a Qualifying Diagnosis? How will the Claims
Administrator confirm that a Qualifying Diagnosis is Generally Consistent with the
Settlement criteria?”) to include information about how the Claims Administrator confirms
that a Qualifying Diagnosis is generally consistent with the Settlement criteria;
In FAQ 367 (“Does my evaluating physician need to address my medication side-effects or
4 other conditions that may affect my cognitive function when deciding whether I have a
Qualifying Diagnosis?”), we added a reference to a Special Master decision about the use
of alcohol or other substances and its effect on cognitive function; and
5 FAQ 372 (“Do the Claims Administrator and/or the AAP defer to the clinician’s judgment when
reviewing the Slick criteria?) was revised to elaborate on the meaning of “clearly erroneous.”
Third Quarter 2021 INSIGHTS Lawyers Edition 7