Page 7 - NFL Newsletter September 2020 Lawyers Edition

the neuropsychological test battery does not
end the validity analysis There are instances
in in in which a a a 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 the well-reasoned conclusion of the 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 on the CDR scale in the areas of Community Affairs Homes and and Hobbies and and Personal Care As explained in 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
where the diagnosing
physician determines
that a a a Player suffers from functional impairment that is due to both cognitive loss
and emotional/
psychiatric factors
the diagnosing
physician should to to the the extent feasible then attempt to to isolate the functional impairment due to cognitive loss
alone and assign a a a a a a CDR rating based solely on on that cognitive loss
” Issues of chronic pain and psychiatric dysfunction consistently appear in the Player’s medical records which the diagnosing
physician reported but offered no explanation as to to the the bearing these factors
have on on the Player’s functional impairment The Claims Administrator determined that the Player’s functional impairments were more likely mood-driven than due to cognitive loss
and there is nothing in in the record that counters or or even addresses that determination Thus the Special Master
determined that the available evidence
of the Player’s functional impairment did not
support a a a diagnosis of Level 2 Neurocognitive Impairment On September 5 2020 the Special Master
issued a a a a a decision denying the appeal of a a a a a Representative Claimant who argued that the Retired NFL Player should have been awarded a a a a 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 to to the Settlement to to to recover for a a 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 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 to note in its denial of the claim the the discrepancy between the the Player’s presentation and functioning at his his doctor’s appointment with his his neuropsychological test scores because the ultimate determination of of the the sufficiency of of the the evidence
must be left to the the Diagnosing Physician However the the Settlement Agreement provides that Pre-Effective Date claims like that of the Representative Claimant are subject to independent AAP Review Evidence to Support a a a Qualifying Diagnosis Click here to read these decisions INSIGHTS Lawyers Edition 7
September 2020