Approval Rates Are Still Dismally Low

December 21, 2017
Sheilla Dingus

In keeping with Judge Anita Brody’s announcement following a closed hearing with Chris Seeger, NFL Counsel, and Special Masters, a claims report dated December 11, 2017 has been posted to the settlement website.  The seven-page PDF document  which details the current status of claims highlights numerous issues in the settlement, not the least of which is a mere 10% approval of submitted claims.

Total Claims

The last status report submitted to the Court revealed that 1,400 claims from retired NFL players and their representatives had been filed along with 375 derivative claimant packages (1,875 claims packages total).  Of these only 140 had received a notice of monetary award.  As of December 11, 1,913 claims packages had been submitted.  Of these 191 had been approved for a monetary award.  The report states that these awards were valued at $240,687,567, with approximately 44% of the funds withheld for liens and holdbacks.

This is consistent with the ALS award I detailed in this article written in August.  In this particular case in which the gross award was $4.5 million, $2.2 million was withheld as a pending Medicare lien.  The claimant, however has never used Medicare but instead relied on private insurance through his wife’s employer.  When this was pointed out to the claims administrator the player was told that he would need documentation from the private insurer that they did not plan to file a lien against his claim.  This was provided within a week’s time.  It took an additional three months for the withheld funds to be released.

Claims by Qualifying Diagnosis

Chart 2 of the report details the types of claims submitted thus far.  Of these, 1,218 have been pre-effective date claims – players who were diagnosed prior to the effective date of the settlement.  These are generally very solid claims but in spite of this, they are still being placed under a microscope for any perceived deficiency.

These players are running into problems because a large number of their diagnoses were made years ago by physicians who were treating patients for illness and not evaluating whether or not the player would qualify for an award on a settlement that did not even exist at the time.  I’ve recently learned of at least a dozen, and most likely more players who were diagnosed with Alzheimer’s or dementia over a decade ago and must be retested by one of the settlement’s designated doctors because the physician’s notes were deemed insufficient.  A widow’s husband died in February 2016 which was after the July 2014 cut off date for Death with CTE. Had this been covered, or had he died at the “proper time” she would have been eligible for an award of $1.2 million.  Since he was not eligible for that she filed a claim based on his Alzheimer’s diagnosis which was made several years before his death.  This award should have been worth $950,000, but the NFL rejected the diagnosis and since the deceased can’t be re-examined by another doctor the award was reduced to $580,000 for Level 2 dementia.  I’m even aware of an ALS claim that has been unmercifully delayed, not because there is any doubt the man has ALS but because the paperwork wasn’t exactly right.

Qualifying Diagnosis Date

As noted previously the vast majority of claims submitted thus far are pre settlement effective date claims.  I’ve been told by numerous independent counsel that they are still in the process of preparing additional pre-effective date claims for submission so there will be many more of these to be evaluated.  The remainder of submitted claims are post-effective date for diagnoses done by a designated MAF physician or Baseline Assessment Provider (BAP).  The unknown segment is most likely claims in process where the diagnosis date is in dispute.

Notices

Of the 191 claims approved, only 67 checks had been issued as of the December 11 report.

The following chart tracks the process approved claims must move through before the monetary awards are issued.

The actual issuance of checks is taking approximately 3 months after issuance of a notice of monetary award.  This is a far cry from the 30-90 days Chris Seeger told the Class in a February webinar.  Since the window for appeal is 30 days there is no way an award can be issued in that amount of time.  What is not reflected in the chart is the process a claim must go through to reach approval.  The overwhelming majority of approved claims were submitted in the spring.

Chart 4 indicates that the vast majority of submitted claims are in “a request for additional documents stage,” more commonly referred as notice of deficiency.  These are the folks who are trying to meet the ever changing and stringent demands for approval.  The “generally consistent” standard written in the settlement agreement seems to have been discarded in favor of a change which Chris Seeger deems procedural that requires pre-effective date claimants to submit medical records that are identical to the requirements from program doctors.  This is a huge source of delay, especially since many claimants who have had a diagnosis for years are having to be retested in order to have their diagnoses meet the language requirements imposed by the settlement.

The chart also notes that 43 claims have been denied but gives no further information as to the reasons for denial.  Fifteen of these are under appeal.  According to a report and recommendation by Special Masters dated December 5, 153 claims were denied without prejudice for players who received neuropsychological evaluations from Dr. Serina Hoover, who was disqualified from participation in the program due to several practices Special Masters deemed questionable.  Based on this, an adjusted figure for denials appears to be 196, leaving 549 claims in deficiency status.  Players who were examined by Dr. Hoover are permitted to be examined by an MAF or BAP physician and resubmit their claims.

Status of Monetary Awards

Chart 5 details the awards that have been paid as of December 11.

One can refer to the flow chart under the previous heading for assistance in interpreting the timeline of this chart.

The 191 approved claims are valued at $240,687,567.  The NFL thus far has deposited $99, 916,867.  From this amount, checks have been issued for $74,989, 632 (gross).  A little additional math will reveal that of $249,667,567 (total approved awards) with $128,757,710 subtracted for offsets and liens equals an actual dollar amount of approximately $120,909,857  has been paid to claimants with an average claim reduction of  48.4% for the liens and offsets.  Rounding to a 48% calculation actual cash payouts are likely to have been around $35,995,023.

Since the NFL is responsible for the gross amount of the award – both the net paid to the retiree and the deductions which are held in escrow for lien holders, it appears that the amount of funds in the payment account is insufficient to cover the claims that have been approved.

Because of this, it seems likely that the claims due for processing next month will be held up since the NFL has until January 11, to make a deposit sufficient for all of the approved awards to clear.  This could happen and I hope it does.  But based on delays and the NFL’s vigorous demands which have landed so many claims in deficiency purgatory, it seems unlikely that they will deposit money until the deadline they are required to abide by.

Denied Claims

Of the 43 denied claims, four were for Death with CTE, two of which are under appeal.  Of those, I have knowledge of one.  For this claim the pathology was done by noted researcher Dr. Ann McKee of Boston University.  The NFL questions the way her statement was worded according to the widow who filed the appeal so for all practical purposes Dr. McKee must now defend and reword her report to suit the no-margin-for-deviation claims requirements.

So far no ALS claims have been denied although at least a few of the claims submitted for ALS are still in the deficiency bucket awaiting a decision.  One of the major surprises in the report is that three Parkinson’s claims were denied.  Seventeen Alzheimer’s claims were denied primarily on the basis of qualifying diagnosis.  Seven of these are under appeal.  It appears that since an Alzheimer’s diagnosis qualifies for a higher award that dementia, the NFL is attempting to downgrade these claims.  Most of the players I’m aware of who are going to an MAF doctor to have their diagnoses confirmed are trying to avoid this outcome.

Claim Profile

The Status Report submitted to the court last month reflected that 53% of claimants were pro se.  This month’s figures show that approximately 43.7% are pro se, so it appears that either a fairly substantial number of players have hired an attorney or almost all of the new claims are represented by one.  While there has been much confusion regarding the need for personal counsel, the claims handling has not unfolded as the simple process that was presented to the players.  Attorneys are having fits navigating the maze of obstacles that must be overcome for claims approval.  It seems lunacy at this stage to file unrepresented.  A 69-page set of FAQs was recently submitted to the court for approval; its purpose is to aid class members in understanding the program and filing their claims.  It seems highly unlikely that a neurologically impaired person could comprehend something of this complexity.

Further breakdowns

*This is based on information taken from Table 6 of the Claims Report

I created the chart above from numbers contained in the report in order to determine average payouts and deductions for various covered diagnoses.  One thing that stood out to me was the small number of Level 2.0 and Level 1.5 dementia claims that have been approved.  Many experts predicted that the NFL would try to deny these claims in order to mitigate their losses and this appears to be their strategy.  Another area that stood out to me is the average claim size for dementia claims, which appears for Level 2.0 to almost entirely encompass men in their 40’s and for Level 1.5 men in their 40’s and 50’s based on the award amounts as cross-referenced with this chart from the settlement website.

Based on the actuaries prepared when valuing the settlement, the NFL appeared to believe that most of the claimants would be much older.  Consider this excerpt from the court-appointed expert, Professor William Rubenstein’s report as to how he calculated a monetary value on settlement awards. Based on his calculations, he valued the entire settlement at $720.5 million which was in agreement with the NFL and Chris Seeger’s projections.

Based on the NFL’s numbers which were used by Professor Rubenstein, the league expected men to qualify for dementia claims at a much more advanced age and therefore at a much lower payout.  Professor Rubenstein estimated payouts of between $25,000 and $50,000 and the actual payouts to this point have averaged between $890,000 and $2.2 million.  I believe this is why the NFL is fighting claims so aggressively and trying to invalidate diagnoses.  The younger men who have been tested with newer protocols appear to be faring better than their older counterparts in regard to approval of  monetary awards.  It stands to reason that if younger retirees are this severely affected, older retirees will even more severely impacted by brain damage.  The NFL has been able to delay claims by invalidating older diagnoses, but since many attorneys are sending players to be re-diagnosed by the standards required in the new settlement “procedures” as Mr. Seeger refers to them, their diagnoses should be confirmed and retroactively dated to their original diagnosis date.  Many of the men in this category were diagnosed in their forties and should receive similar awards to the players who are currently in their forties who have been approved.  While the long wait for relief has proved excruciating to these players and their families, I believe there is reason to be optimistic that claims will be approved after medical records are updated and in compliance with unwieldy demands of the current protocols.

Professor Rubenstein’s estimated value of $720.5 million is likely to be dwarfed when qualifying diagnoses stand the rigors of the NFL’s opposition, which I believe in time, they will.  Based on claims approved this far, the average pre-deduction award has been $1,512,554.  If only half of the claimants eventually qualify for an award, which I believe they will, and also feel this is a low number, the payouts should total in the neighborhood of $1.4 billion, which exceeds the $1 billion figure estimated by the court at the time the settlement was uncapped, and cited by most media.  This is easily a low estimate of currently submitted claims.  I am hearing from numerous law firms that they still have hundreds of claims to submit, so the payout for the NFL could easily range from $2.5 to $3.5 billion by the time the current caseload of players is processed.

Summary

The excerpt above from Table 7 of the report shows a break down of approved awards and those which have already been paid.  The remaining 104 approved claims sit somewhere in the “process.”  According to the report 23 claims are in the funding/disbursement process; 31 claims are slated to slide into this slot when the next report is prepared on January 10 and 74 claims are on a 30 day appeal hold; those not appealed should slide in to the February 10 submission for pay.

The good news is that some decent awards have been paid and there is reason to expect more of the same. . . but the bad news is that it is an excruciatingly slow process.  It appears that very solid claims with only one or two deficiency kickbacks are taking 8-9 months from submission to approval.

The waiting and wondering is taking a huge toll on the retired NFL community.  Over all, the mood is similar to this text I received from a retired player a couple of weeks ago whose claim was submitted in the spring:

“I’m am so stressed and depressed with this settlement.  [Attorney] still hasn’t heard anything to clarify the deficiency notice.  But what scares me is they said the claims administrators have gotten WORSE in past couple weeks!!!  Instead of deficiencies, I am told they are just flat out denying all claims!!  How the hell could it get worse than it was??? But it is. It’s hard to think about a denial when during approval process we were guaranteed approval if we had a diagnosis prior to final settlement date.”

I’ve seen the medical submissions for this man.  He has a valid and long-standing diagnosis from a reputable neurologist.  Yet he waits.  A couple of days ago he told me that his lawyer is sending him to a MAF doctor for retesting in order to validate his existing medical records.  I believe he will be approved, but scheduling a new exam, receiving and submitting the results and the claims administrator’s evaluation of the new record could add months to his wait.  It seems cruel to put a disabled and neurologically impaired person through such hell, when what would otherwise be considered solid medical records exist.

Wives have reported severe declines in their husbands as the waiting takes its toll.  Some men have been triggered to violent outbursts while others succumb to severe depression which in turn seems to diminish the cognitive abilities they had managed to retain.

The NFL needs to learn a couple of new words: “accountability” and “mercy.”  Chris Seeger has claimed the lion’s share of the common fund for payment of class counsel for himself.  The lawyers representing individual clients who were largely cut out of this are working feverishly to get their claims approved. Seeger needs start doing the back-end of the job he was appointed to and remember who he’s working for, and the goai – getting claims approved and money to impaired players and their families.  If this doesn’t take place in short order, I hope that Judge Brody will show the same compassion for the class that she did when she refused the capped settlement amount and intervene once again to relieve the suffering.

CORRECTION: Total claims awards were incorrectly entered initially. Correction was made to $240,687,567 as reflected in Table 1 of the Claims Report.