Fourth Circuit Affirms Lower Court Ruling, Finding NFL’s Post-Retirement Disability Apparatus Failed Ex-Player

Aug 4, 2017

A panel of judges with the 4th U.S. Circuit Court of Appeals has affirmed the ruling of a district judge that the Bert Bell/Pete Rozelle NFL Retirement Plan and the NFL Player Supplemental Disability Plan (The Plan) abused its discretion when it denied disability benefits to a former NFL player, who is currently suffering from the after-effects of multiple concussions and other injuries.
In so ruling, the panel noted that the defendants “failed to follow a reasoned process or explain the basis of its determination–neither addressing nor even acknowledging new and uncontradicted evidence supporting (the plaintiff’s) application, including that of the Plan’s own expert.”
Plaintiff Jesse Solomon played professional football in the NFL for nine seasons before his retirement in 1995. During his football career, he sustained more than 69,000 full-speed contact hits. As a result, he experienced symptoms associated with chronic traumatic encephalopathy (CTE), a degenerative brain condition caused by repeated head trauma. He also suffered numerous knee injuries requiring multiple operations. Solomon now suffers from chronic knee pain, chronic headaches, depression, and anxiety that doctors expect to worsen over time. These injuries forced Solomon to resign from his post-NFL career as a high school teacher and football coach in 2007. Because he was unable to work, Solomon sought benefits under The Plan.
The court went on to explain the mechanics of The Plan, which provides disability benefits to retired players who become totally and permanently disabled (TPD) as a result of their football career.
On March 11, 2009, Solomon first applied for disability benefits under the Plan, asserting that football-related orthopedic injuries rendered him TPD. Although Solomon did not seek benefits for his CTE-related disability in this first application, the medical records he submitted contained evidence of brain injuries. These records included a 2005 MRI showing “white matter changes in the deep white matter of both parietal lobes” of the brain, according to the complaint, and a 2006 letter from Solomon’s primary care physician, Dr. Mark Hudson. Dr. Hudson linked the white-matter changes to chronic concussion syndrome, a condition resulting from Solomon’s football career and “likely to worsen with time.” In addition, occupational therapist Brian Matuszak opined that Solomon was TPD and could not return to competitive employment. Mr. Matuszak based his decision primarily on Solomon’s orthopedic impairments, but noted Solomon’s “poor concentration requiring frequent redirection” and “increased psychological barriers to return to work,” according to the complaint.
On May 14, 2009, those overseeing the plan denied Solomon’s application, finding that he was not TPD. Solomon appealed that decision, which affirmed the denial on Nov. 19, 2009.
On Dec. 12, 2010, more than 12 months after his first application, Solomon filed a second application for Plan benefits. In contrast to his first application, Solomon’s 2010 application claimed that football-related neurological and cognitive impairments caused him to become TPD. This application contained a number of new medical reports describing the severity of his CTE-related disability. For example, Dr. Jamie Fernandez conducted a neuropsychological examination on June 11, 2010, finding that Solomon suffered depressive symptoms, cognitive dysfunction, and “behavioral disinhibition resulting in (Solomon) leaving his job as a football coach” in 2007. Dr. Dexter Stallworth conducted an MRI that same day corroborating the 2005 MRI and confirming the presence of “white matter lesions along the right and left frontal and parietal lobes of the brain,” and noting that these lesions are “thought to be posttraumatic.” Dr. Fernandez prepared another report, dated Aug. 23, 2010, concluding that Solomon suffered from diffuse axonal injury, white matter changes, and postconcussive syndrome resulting from traumatic brain injury (TBI). Finally, Dr. Fernandez opined, in a letter dated April 6, 2011, that Solomon suffered severe postconcussive syndrome, possible CTE, and was disabled as a result of his numerous football-related TBIs, extensive orthopedic injuries, cognitive impairment, and severe depression and anxiety.
“Pursuant to The Plan provisions authorizing a neutral evaluation, the Plan also referred Solomon to an independent neurologist in January 2011,” wrote the court. “In February 2011, The Plan’s expert, Dr. Adam DiDio, concluded that Solomon was TPD as a result of severe postconcussion/posttraumatic head syndrome and possible CTE, noting that there had been a ‘progressive worsening of cognition over a period of 5-10 years.’ And while Dr. DiDio ‘agreed’ with Dr. Fernandez’s assessment that Solomon was exhibiting signs of CTE, he was ‘more comfortable labelling Solomon’s condition postconcussion/posttraumatic head syndrome.’ The Plan’s physician report form asked, ‘Has the impairment persisted or is it expected to persist for at least 12 months from the date of its occurrence?’ For all three of Solomon’s impairments–cognitive impairments, anxiety/depression, and headaches–Dr. DiDio checked the box designated ‘yes.’”
After he was denied a second time on March 9, 2011, Solomon appealed. But he was unsuccessful. After several more failed attempts, Solomon filed a lawsuit.
In deciding the appeal, the court considered whether the defendants had been reasonable in their determination.
“Stripped of the arbitrary restrictions on evidence it would consider, the Board provided no justification for denying Solomon Football Degenerative benefits, let alone substantial evidence for doing so. The mere absence of contemporaneous evidence is not evidence at all, and the Board has nothing else to support its conclusion. See Weaver, 990 F.2d at 157-59. If the Board had examined record evidence outside the arbitrary four-month window, it would have confronted substantial evidence that Solomon’s brain injury caused him to become TPD prior to the March 2010 cutoff. Solomon had been unemployed and unable to work since 2007, and the Board’s own neutral neurologist noted in February 2011 that Solomon’s brain injuries had worsened ‘over a period of 5-10 years.’ In addition, multiple expert reports dated within months of the cutoff date described serious neurological impairments traceable to Solomon’s decades-old football career that rendered him TPD.
“A fiduciary must rely on substantial evidence to sustain its denial of benefits and thus abuses its discretion when it ignores unanimous relevant evidence supporting an award of benefits. The expert opinions concerning Solomon’s CTE-injuries established at least a presumption that Solomon was entitled to Football Degenerative benefits, and the Board did not rely on substantial evidence to contradict them. Indeed, it relied on no evidence at all. Neither in briefing nor oral argument did the Plan cite any affirmative evidence relevant to brain injuries on which the Board relied. We therefore hold that the Board abused its discretion when it arbitrarily denied Solomon Football Degenerative benefits.”
Jesse Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan; NFL Player Supplemental Disability Plan; 4th Cir.; No. 16-1730, 2017 U.S. App. LEXIS 11197; 6/23/17
Attorneys of Record: (for Appellants) Michael Lee Junk, GROOM LAW GROUP, CHARTERED, Washington, D.C. (for Appellee) Adam Ben Abelson, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland. Cyril V. Smith, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, for Appellee.


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