Page 7 - September 2020 Newsletter ClassMembers Edition

the neuropsychological test battery does not Player’s functional impairments were more likely
end the validity analysis. There are instances mood-driven than due to cognitive loss and there
in which a patient will obtain “passing” scores is nothing in the record that counters or even
across all performance validity tests, but the addresses that determination. Thus the Special
clinician might nonetheless determine that his Master determined that the available evidence of
neuropsychological test results are invalid. The the Player’s functional impairment did not support
Appeals Advisory Panel (“AAP”) automatically a diagnosis of Level 2 Neurocognitive Impairment.
reviewed this claim because the Player’s diagnosis
predated the Settlement Effective Date. The AAP Evidence to Support a
Consultant and AAP Reviewers found that the Qualifying Diagnosis
totality of the circumstances triggered significant
Slick criteria concerns. The Claims Administrator
adopted the well-reasoned conclusion of the On September 5, 2020, the Special Master issued
AAP that the Player’s neuropsychological testing a decision denying the appeal of a Representative
performance did not support his Diagnosis, which Claimant who argued that the Retired NFL Player
the Special Master concluded was not clearly should have been awarded a different Diagnosis
erroneous. than the Pre-Effective Date Level 1.5 Neurocognitive
Impairment Diagnosis originally submitted. The
b. Cause of Functional Impairment Level 2 later Diagnosis of Alzheimer’s Disease was based
Neurocognitive Impairment requires evidence on evidence that was not before the Claims
of moderate functional impairment based on the Administrator. According to the Settlement, to
CDR scale in the areas of Community Affairs, recover for a Pre-Effective Date Diagnosis, the
Published Decisions by the Special Master Homes and Hobbies, and Personal Care. As Player must come forward with evidence generally

explained in FAQ #113, the impairment must consistent with each of the criteria listed in Exhibit
result from cognitive loss 1 (Injury Definitions). The
e post all decisions the Special Masters designate to be published on the instead of other factors Special Master explained
WSettlement Website (under “Documents” click “Special Master” below such as “physical handicap that contemporaneous
“Published Decisions”). Several recent Special Master rulings that affect Monetary or injury, chronic pain, proof of each listed claim
Award Claims are on the site: sleep apnea, or other must be evaluated on its
own terms, paying attention
causes….” FAQ #113 also
directs that, “[i]n situations to the actual evidence
Validity Testing and Cause of aim to provide a quantitative basis for detecting where the diagnosing before the Diagnosing
Functional Impairment minimal effort or deliberate underperformance. physician determines Physician and the Claims
Administrator. The
that a Player suffers from
Second, clinicians must evaluate performance
validity by completing the Slick et al. checklist of functional impairment that Representative Claimant
In this August 19, 2020 decision, the Claims nine validity criteria. Eight of the nine Slick criteria is due to both cognitive also argued that it was
Administrator denied the Retired NFL Football require the clinician to qualitatively assess the loss and emotional/ clear error for the Claims
Player’s claim based on concerns regarding Player’s performance, which involves considering psychiatric factors....the Administrator to note in
performance validity on his neuropsychological whether there are discrepancies between the diagnosing physician its denial of the claim the
testing as well as inconsistencies between his Player’s scores and should, to the extent feasible, then attempt to discrepancy between the Player’s presentation
reported level of functional impairment and the his observed behavior, isolate the functional impairment due to cognitive and functioning at his doctor’s appointment with his
Qualifying Diagnosis. collateral reports loss alone and assign a CDR rating based neuropsychological test scores because the ultimate

a. Performance Validity The Special Master and documented solely on that cognitive loss.” Issues of chronic determination of the sufficiency of the evidence must
pain and psychiatric dysfunction consistently
be left to the Diagnosing Physician. However, the
explained the two ways that the Settlement background history. As appear in the Player’s medical records, which Settlement Agreement provides that Pre-Effective
explicitly addresses performance validity. First these are independent the diagnosing physician reported but offered Date claims, like that of the Representative Claimant,
for Level 1.5 or 2 Neurocognitive Impairment, requirements, passing no explanation as to the bearing these factors are subject to independent AAP Review.
clinicians must include performance validity at least two of the have on the Player’s functional impairment.
tests—both embedded and standalone—in the performance validity The Claims Administrator determined that the Click here to read these decisions.
neuropsychological test battery. These tests tests included in

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