↑ Return to Current Litigation

NFL Admits Denial of Veteran Player’s Disability Benefits Without Review of Medical Records

Darryl Ashmore w/ Oakland Raiders

By Sheilla Dingus

January 11, 2017

In the latest NFL Disability Plan response to a lawsuit filed by eleven-year veteran offensive lineman Darryl Ashmore in regard to denial of his disability claim, the Plan attorneys admit that his medical records haven’t even been reviewed!  When I previously reported on this story, I noted his claim of disabilities resulting from eleven seasons in the NFL: chief among them, the neurological impact of frequent and severe migraines, encephalopathy, memory loss, depression, anxiety, impaired concentration, nausea and hypertension, as well as the physical manifestations of chronic pain in his neck, knees, back, wrist, and shoulders attributed to  herniated discs, and degenerative arthritis.

I had the pleasure of interviewing Ashmore for this story; the first thing that impressed me about him was his soft-spoken easy manner.  I was soon impressed with his attitude, and determination to overcome obstacles as well.

Our conversation started when I asked him what it was like going from college to the NFL.  “Well, I came from college where I played in the Big 10 at Northwestern. We come from a small school in a large conference. It was kind of oAshmore - Northwestern Carddds were against me,” he said.  “We still had a negative image as far as being Northwestern . . . You still have that negative image as far as they don’t know how to win.”  In his sophomore year, he suffered a knee injury that required surgery and kept him red-shirted through would have been his senior year.  When he returned in his fifth year at Northwestern he transitioned from defensive to offensive lineman, which would remain his position from that point forward.

“I became a top ten prospect, NFL prospect. I was one of the top ten lineman before the Combine started after playing in the Senior Bowl.”  He told me that he expected to be a second-round draft pick but things didn’t quite work out that way.  Teams were hesitant to pick him up because of his injury.

A 1992 Los Angeles Times article described his unceremonious entry to the NFL by way of the Los Angeles Rams: “The 172nd pick in the draft was Ashmore, who at best has only loose bits and pieces of what the NFL wants in its athletes.”  Ashmore, who is 6’7”, was at the time of the draft considered twenty pounds under his ideal weight.

Still, he said, it was a “bigger than life kind of thing” being drafted.  He told me his dad was a Rams fan, so it was a really big deal to his family as well.  “So I got to the NFL, and I was kind of taken aback by them with Jim Everett and backing up a Hall of Famer in Jackie Slater,” he said.  “You kind of had to take it in,” he continued, “but, first of all, I didn’t go where I wanted to in the draft, not a lot of money, signing bonus. I feel they got a good deal, and they feel they had a good deal, too. So I wasn’t going to take over Jackie’s place, but being [in a late] round, I didn’t get the fanfare.”

“I was still learning how to be an offensive lineman,” He said of his start in the NFL.  “I had pride, and I had a talent, and I had some athletic aDarryl Ashmore - Ramsbility. But I was playing basically on one knee. My knee still wasn’t properly rehabbed. It isn’t the way it is now medically.”

In a league where most players never see the five-year mark, Ashmore bulked up to 310 pounds and began to terrorize defenses for what would turn out to be an eleven year career in spite of the challenges.  “So I played basically with one-and-a-half knees over an 11-year career period. I had my share of injuries.  Seemingly taking a moment to reflect, he related, “So I kind of look back on it and think, what kept me from being a full-time starter in this league. And I look at my injury list, injured at times during the year, and would I be able to overcome some of the injuries in the first parts of the years.”

He recalled that in college, he’d been given ample time to regroup from injury.  “You can come back if you want to, but it’s up to you type of thing,” he told me.  “And I’d worked and worked and had some setbacks. I had to have a clean-up surgery real quick. I could pick my time, and I was able to slip over to – I could have come back my true senior year and played one game, and I wasn’t ready. I obviously had swelling and stuff . . . I red shirted my senior year and came back as a fifth-year senior.”  He found the NFL culture to be much different.

In the pros, the name of the game is returning to the field as soon as possible.  “You get through it with painkillers and what they give you, anti-inflammatories, and you never really get to feel your body because they give you painkillers during the offseason to offset some of the pain,” he said.  “So after my fourth, fifth year, with the knee injury, the pain and the knee injuries I had with the Rams, two consecutive ones in my first few years, my body really was never the same to start with. It went downhill from there.”

I was aware of a neck injury he suffered after being traded to the Redskins in 1996, and asked him about it.  “I had that neck injury and I had a back injury with the Redskins, neck injury with the Rams,” he told me.  “My neck was never the same. I had trouble sleeping. Luckily, I was going into the offseason with the neck injury with the Rams and had a chance to rehab it, but I was never physically a hundred percent strong strength-wise and the feeling in the arms never came back all the way.  But compared to one side of my body, I probably was minus 10 percent strength and some reflexes on that side because of the neck injury and pain. I had pain all the time. I had to wear special pads and stuff just for my neck out there. I had an option of having surgery, which would have ended my career with the Rams, where they would have fused my vertebrae, but I chose to rehab it.”

With the aid of painkillers, he continued to play, but said that he had to try to compensate for the injuries, for the remainder of his career, using the special pads to insure that his neck didn’t “bend back too far,” and that pain was a constant during the latter part of his time on the gridiron. Ashmore was traded to the Raiders in 1998 and played for Oakland until his retirement in 2002.

Ashmore - Oakland Raiders

“What happened next? I asked.  “The moment I retired, I did have surgery. I did tend to the injury, and I never recovered. I tried to come back, but the Rams’ doctor, from what I hear, didn’t perform the surgery properly. He kind of botched it, and my quad wasn’t connected properly. I never regained the strength in my quad.”  He contemplated that he probably shouldn’t have played the last few years – and couldn’t have without the painkillers that had kept him on the field.  Unfortunately, his situation is not unique.  “I’ve seen players I played with that roll out of bed and can’t even be able to get up the next day after a game,” he remembered.  “Without the painkillers, a lot of the guys would not have been playing for as many years as they did.”

In view of all this I wondered what his private, post-retirement physicians had to say.  “Well, I’m going through different physicians, asking for surgeries on my back. But they said the minute you open yourself up it’s going to be worse, and I was a fairly young man, 33, 34. But I sought out medical professionals from when I lived in the D.C. areas, consultations.”  He told me he got to the point where he just wanted “to leave it alone.”  “You always think you’re not going to be that someone. You think, ‘hey, I’m going to get better, I can beat this, I can get my body stronger, I can overcome.’ But at the end of the day, I’m regressing and my body is getting worse, and my condition, little by little, I’m like, ‘hey, this isn’t better. You’re never getting better; you’re always getting older and weaker.’  So it’s like that,” he said. “Being an athlete, you think you’re stronger than the average person, and you’re mentally stronger, but Father Time always wins with arthritis, on top of other problems and it gets worse and worse.”

Ashmore is now head-on with perhaps the toughest battle of all.  At age 47, he faces the debilitating latent effects of multiple concussions, in addition to the crippling effects of degenerative arthritis and his other physical ailments.

“I don’t know how to get better at this point. I don’t know where the improvement is going to come, but it seems like over the last five years, as I approached the first part of forty and the mid-forties, it’s gotten worse. I don’t want to be the guy like Merlin Olson, I think I saw him at the ten-year reunion, he was on crutches, and Rosie Grier was using a walker. So I’m like, is this what we have to look forward to? Looking like you’re on the other side of death. So is this what we play the game for?” He asked.  “Did we really know this going in, this is how our lives would be? I don’t know if we knew that we would have signed a contract. But we signed the contract . . . it’s something you have to deal with.”

Not only have the numerous injuries weighed heavily on Ashmore; a lengthy legal battle, which can take a tremendous toll on even a healthy person, has also presented a huge emotional burden.  He’s been fighting for total and permanent disability benefits for a few years now.  In addition to this he’s a plaintiff in another suit which seeks to hold the league responsible for its abuse of prescription drugs.

I asked if he’d received any support from the NFLPA.  “Out of sight, out of mind. Nobody really cares about the guy that’s not producing anymore, even the Players Association.  Their main focus is taking care of the players that are playing and those who are to come. I understand that a little bit, but until you’re on the other side of it, nobody is going to really care.”  It certainly doesn’t appear that the NFL Disability Board cares.

What is perhaps most surprising in Ashmore’s case is that the Board denied his benefits without ever reviewing his medical files. Like many other former NFL players in a similar position, his benefits have been denied on legal technicalities rather than an honest review and evaluation of medical evidence.

In short, Ashmore, who is now unable to travel by air, or for lengthy periods of time by automobile, was scheduled by the Disability Board for medical evaluations that would entail over 1,400 miles of travel.  According to court documents, his attorney, Edward Dabdoub, whose law firm specializes in obtaining disability benefits from insurance companies and the NFL Plan, explained the situation to the Board, stating that Ashmore was willing to submit to their medical evaluations, but they needed to be scheduled in his home state of Florida due to his inability to travel.  The Board responded with an offer to administer the exams in Atlanta.

Dabdoub replied with a letter from Ashmore’s physician reiterating the difficulty in compliance, and requesting reasonable accommodation.  According to court briefs, in email exchanges with Ashmore’s counsel, the Board appeared to be willing to cooperate—that is, until the date of the proposed medical examination in Atlanta.  As soon as that appointment was missed, Ashmore promptly received a letter of denial.

Sole reason

In October, Ashmore filed an appeal to District Court in Florida.  The Defendant, NFL Player Disability and Neurocognitive Benefit Plan, filed its response with the court on November 21, requesting that Ashmore’s case be remanded back to them.

The response brief from the Plan for all practical purposes relies on the tactic of “affirmative defense,” in an attempt to deflect from or actually debate the allegations.

First Affirmative Defense

Like the NFL itself, in reliance of Article 46 granting the commissioner virtually unlimited discretion, the Plan relies heavily on “discretion” as well.  This has been both relied upon and abused in numerous ways as I pointed out in an article about another denied player, Jesse Solomon.  Sometimes the devil is in the details, as evidenced by a footnote excerpt from an unrelated concussion lawsuit.

Devil in the Details

While the first affirmative defense was completely predicable, I find the second most disturbing.

Second Affirmative Defense

The Defendant, NFL Disability Plan admits their administrator did not review the medical evidence supporting Ashmore’s application for disability benefits, yet requests the Court remand back to the Plan.  It would seem that medical evidence should be of utmost importance in a disability determination, but apparently it wasn’t a priority for the Plan decision makers.

According to briefs submitted by Ashmore, as described in my previous article, an extensive paper trail appears to exist, so rather than an outright denial of all allegations, in essence they are asking for a “do-over.”

District Judge Kenneth Marra has issued scheduling and discovery orders for the case. The discovery cut-off is July 28, 2017, so it appears that it will be difficult for the NFL Plan to prove their case against the records maintained by Ashmore’s counsel.  Unless the Plan is able to successfully move to seal the documents, they will become a matter of public record at that time.

Jury trial is scheduled for the two-week court calendar commencing Monday, January 8, 2018, with calendar call starting January 5, 2018.

In the meantime, Ashmore must continue to wait.  Financial obligations continue to mount.  We discussed the obstacles former NFL players face upon retirement – the challenges of being out of the mainstream work force for a number of years, and then either having to start over in an entry level position, which can’t come close to maintaining the lifestyle to which they’ve become accustomed, or alternately starting a business of some sort and taking their chances in that regard.  We talked about a lot of things most fans don’t consider when they watch their favorite teams on Sunday or select their fantasy lineups.

Ashmore told me that he feels fortunate, at least for now, that they’re paying their bills.  “I have grown kids, I have kids that are growing and going to college, so you want them to have the best in the world and the opportunity to go to the right college,” he told me.  “But just the prospect of you never know where your body is going to be in the next year because seven years ago I wouldn’t expect my body to feel like it does now. I wouldn’t expect my mind to be where it is at this point.”

He told me, “I read this research article the other day, an ex-player sends out a blog, I forget his name, about all the NFL players who died in six years. Just this year, a lot of NFL players who might have played one season or fifteen seasons, every different era, who passed. You kind of don’t get the reality of it, but a lot of guys have passed away, and you wonder what’s going on with a lot of these guys, young guys, or guys in the forties and fifties . . . It makes you feel mortal at this point because for me being a big guy, you don’t see a lot of 6’7, 270-pound, 80-year olds walking around or 70-year olds. So I think the life span is short for the big guys in the NFL. We’re always kind of aware of that. It makes you want to get in shape, lose some weight, but it’s kind of an oxymoron when your body hurts and you can’t do too much and you can’t work out the way you want.”

“I had a couple of players I played with pass away over the last couple of years,” he said.  “It’s tough to swallow . . . You’re aware of mortality when you leave the NFL and you get to a certain age.”

We discussed what needs to happen and agree that it will be fans who must hold the league accountable for the injuries that built the NFL into the $13 billion annual megalithic giant that it is.  “Pretty reactive institution, the NFL,” Ashmore said.  “They react after they see what the public sentiment is, and then they start to change after that.”

The NFL refused to address or acknowledge the danger of concussions until they could no longer ignore the public outcry.  While there is still much work to do, and much more responsibility needs to be taken for damage already done, the positive steps that have been taken would not have happened if not for the public demanding this.

Darryl Ashmore is far from alone in his struggle to receive the total and permanent disability benefits he’s worked for and his doctors feel he’s entitled to. Denials are pandemic.  The NFL continues to keep players on the field through the over-use of prescription painkillers.  It is my hope in writing that people will become aware, and in becoming aware, will push for change to make the game of football better, for players of the past, for the present, and for the future.

I’d like to express deepest thanks to Darryl Ashmore for sharing his story with me
and to
Copley Court Reporting for providing the transcript of our conversation.