Page 7 - 3rd Quarter 2021 NFL Newsletter - Lawyers Edition

Audit
e post all decisions the Special Masters designate to be published on the Settlement
The Claims Administrator denied the Player’s WWebsite (under “Documents” click “Special Master” below “Published Decisions”).
claim and during the pending appeal, the claim Click here to read the decisions published so far. We encourage you to check the
was placed into audit. The Claims Administrator Settlement Website often and read any new decisions because they serve as guidance for
provisionally found a potentially material piece of the consideration of the same or similar issues and principles in later decisions. Let us know
evidence to be fabricated, which led it to doubt
the trustworthiness of a key source of information if you have questions about any of the posted rulings or how they might affect you.
about the Player’s functional impairment. That
source was subsequently excluded from the New FAQs and Recent Revisions to Existing FAQs
record so the appeal could move forward.

Published Special However, the Settlement Program demands In our quarterly Status Reports we file with the Court, we describe all new FAQs and changes to
that its fiduciaries work efficiently to pay valid
existing FAQs. As reported in Claims Administrator Status Report No.13 filed on July 29, 2021,
Master Decisions claims: one of the Special Masters’ primary we added two new FAQs in the Special Master Appeal Decisions category:
duties is to make sure that the documentation
and evidence that they rely upon as custodians FAQ 373. Is the diagnosing physician required to interview a knowledgeable
Three recent Special Master rulings of the Monetary Award Fund is reliable. As a informant as part of the CDR evaluation?

that affect Monetary Award Claims are result, on June 3, 2021, the Special Master
now on the site: ordered the Claims Administrator to reopen FAQ 374. Is driving generally consistent with the required CDR scores for
Level 2 Neurocognitive Impairment?
Functional Impairment the audit and make findings about whether any
of the Player’s statements and documentary We also made substantive revisions to five existing FAQs:
Relying on the review and recommendations submissions misrepresented or omitted material
of an AAPC and AAP Member, the Claims facts, and if any misrepresentations were found, 1 We revised FAQ 103 (“What does “generally consistent” mean?”) to clarify further what
Administrator denied the Player’s claim for Level what role the Player’s law firm had in such “generally consistent” means based on a published Special Master decision;
1.5 Neurocognitive Impairment. The Claims misrepresentations. For FAQ 109 (“What must the medical records show for Level 1.5 and Level 2
Administrator comprehensively explained 2 Neurocognitive Impairment diagnoses made in the BAP by Qualified BAP Providers?”), we
why the Player’s diagnosis was not generally Slick Analysis and Functional added a Reminder explaining what it means for cognitive deficits to occur exclusively in
consistent with the Settlement criteria for Level the context of a delirium, acute substance abuse, or as a result of medication side effects,
1.5 Neurological Impairment, specifically criteria Impairment and noted that a diagnosing physician may reschedule a Retired NFL Football Player’s
(ii) evidence of moderate to severe cognitive The Claims Administrator denied this claim appointment if he or she believes that the Player’s clinical presentation may be, in part, the
decline . . . in two or more cognitive domains on multiple grounds, including unaddressed result of substance abuse or medication side effects;
and criteria (iii) functional impairment. As FAQ Slick validity criteria and an unclear and
113 makes clear, the Diagnosing Physician’s underdeveloped record regarding the 3 We revised FAQ 364 (“How should a Qualified MAF Physician apply the Generally
report is a key document in evaluating whether Player’s daily cognitive functioning. On July Consistent standard when making a Qualifying Diagnosis? How will the Claims
the Player has adequately come forward with 1, 2021, the Special Master found that the Administrator confirm that a Qualifying Diagnosis is Generally Consistent with the
evidence of his functional impairment. That neuropsychologist’s assessment fell well short Settlement criteria?”) to include information about how the Claims Administrator confirms
report is supposed to pull together the Player’s of a thorough consideration of the claim’s that a Qualifying Diagnosis is generally consistent with the Settlement criteria;
medical history, relevant documents and the inconsistencies and instances of potential In FAQ 367 (“Does my evaluating physician need to address my medication side-effects or
physician’s articulated judgment. The Special invalidity and did not reflect an articulated 4 other conditions that may affect my cognitive function when deciding whether I have a
Master upheld the denial in this May 28, 2021 judgment about the Slick criteria. The clinician Qualifying Diagnosis?”), we added a reference to a Special Master decision about the use
decision, concluding that the MAF Physician’s also failed, to the extent feasible, to attempt to of alcohol or other substances and its effect on cognitive function; and
report and supplemental email concerning the isolate the functional impairment due to cognitive
Player’s functional impairment do not establish loss alone and assign a CDR rating based solely 5 FAQ 372 (“Do the Claims Administrator and/or the AAP defer to the clinician’s judgment when
a CDR of 1, and thus cannot support an overall on cognitive loss, as required by the Settlement. reviewing the Slick criteria?) was revised to elaborate on the meaning of “clearly erroneous.”
award of Level 1.5 Neurocognitive Impairment.

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