July 29, 2019
“A full and fair review required the Plan to construe Plan terms according to their plain meaning, avoiding interpretations that would render some language meaningless. A full and fair review also required the Plan to consider all available evidence, as opposed to automatically deferring to its hired evaluators’ employability conclusions and disregarding all evidence proffered by Mickell. A full and fair review further obligated the Plan to consider the cumulative effect of all of Mickell’s conditions on his ability to meet the definition of Disability, rather than evaluating each condition in a silo.” So reads the opening statement in Darren Mickell’s appellant brief to the Eleventh Circuit Court of Appeals, following denial of his disability claim.
A great deal is packed into those brief sentences because they summarize how the NFL and its Disability Plan works to discredit and deny the claims of almost all damaged retirees who dare to try to collect on the benefits promised to them.
“Truth” isn’t what you see before your eyes, but rather what the billionaire owners of America’s richest sports league believe will make them richer, or at least avoid costing them money.
“Fair” isn’t keeping promises but finding ways to break them.
“Full” consists of only the evidence favorable to deny players and omission of whatever might support their claims.
The ability to work in real-world occupation requires evaluation of the entirety of a person’s abilities and not one element isolated from all others, but this is the strategy the NFL and its disability plan has employed for years, meeting with mixed success. Unfortunately for Darren Mickell, a former defensive end with 10 years in the NFL, the district court in which he sought justice bought the Plan-perfected Kool-Aid and now his future depends on an appeal to the Eleventh Circuit.
There’s no shortage of evidence to support his disability—in fact, the volume of evidence is extraordinary—twenty-seven lengthy appendixes of medical records, many of which date back to his playing days, along with correspondence and other substantive documentation, so much that it amounted to $80 in PACER fees to pull.
The Song Remains the Same
Darren Mickell entered the NFL through the supplemental draft in 1992, landing with the Kansas City Chiefs and remaining there for four-seasons when he was traded to the Saints where he spent the next three years. He signed with the Chargers in 2000 and finished his career with the Oakland Raiders in 2001. He was a defensive end throughout his career.
A Career Wrought With Injuries
Like many players, Mickell suffered his share of serious injuries. In 1994 he injured both knees but instead of rest and recovery, he was injected with painkillers and kept on the field. When the season ended, he required surgery on both knees. Prior to surgery he was given an injection in his back and told that he would remain awake throughout the surgery, but instead, he was given full anesthesia. Upon awakening, his back pain was worse than his knee pain. Nevertheless, he was given “pain management” and back in play for the next season.
In 1996, while playing for the Saints he sustained a shoulder injury that required surgery, and in 1999, while playing for the Chargers, he injured his hip. Though his hip was drained several times, the pain never resolved and continued to worsen as he continued to play. It’s sad looking back at old articles from this time and seeing Mickell referred to as a “bust,” when considering the extent of his injuries and the accompanying pain, it seem miraculous he was able to play at all. Sadly this is often the case with players who don’t live up to expectations. They try to battle through silently, as they’ve been conditioned to do, all the while creating for themselves life-long disabilities while oblivious fans and sometimes beat writers add emotional strain to amplify the physical hurdles.
Throughout the last two years of his career, Mickell was kept in play with cortisone shots, various painkillers, and daily doses of anti-inflammatory medications, but the relief they offered was fleeting, forcing him to retire at the end of 2000.
Darren Mickell Retires
To top off the orthopedic injuries, Mickell played during the time, when a concussion was just considered little ding, and “getting your bell rung” was to be expected and accepted.
The short-term cognitive deficiencies he began to experience near the end of his career in which, unable to focus, he blew plays and had trouble answering questions multiplied in retirement.
In addition to dealing with short-term memory loss and inability to focus, he experienced chronic headaches and insomnia. He found it difficult to control his emotions, sometimes finding himself overcome with anger. When he did sleep he was plagued with nightmares that sometimes forced him to spring from his bed in the middle of the night and run outdoors to catch his breath. Having never experienced such issues before, he began withdrawing from friends and family as he tried to figure out what was wrong with him. His personal hygiene declined and he neglected routine tasks like paying bills, eventually prompting his mother to move in and take over such responsibilities.
Due to the combination of problems he experienced as a result of the many injuries he sustained and tried to work through, he found himself unable to work in any meaningful capacity by the time he was forced out of the game. Unfortunately, instead of improving after he retired, his condition continued to worsen. I’ll spare the reader a detailed medical summary of the physical and cognitive problems, but a “brief” summary contained in his initial complaint, filed in 2015, spans almost two pages. Hundreds of medical records and references are contained in the exhibits.
Mickell attempted to return to work in April 2012. He got a job handling freight for Publix Freight Handlers but was unable to meet the demands of the work. He often was unable to finish shifts due to excruciating pain and sometimes couldn’t report to work at all. He tried cutting down to a 4-day work week but that wasn’t enough to overcome the physical pain and weakness. The harder he tried, the more he felt his cognitive abilities declining along with the physical.
The Disability Dance
Unable to meet the demands of the job, Mickell applied for NFL disability, submitting his application in September 2013. Along with an abundance of medical records he had a one-page statement from his employer that verified his employment but little else. It didn’t include Mickell’s many absences or a record of his uncompleted shifts, nor did it contain any information regarding his earnings. Often when asked for a document of this nature, employers decline to provide any information at all outside verification of employment as a shield against liability should the employee later file a discrimination suit. Mickell supplemented the employer’s document with an earnings statement showing that he would make less than $30,000 for the year, as the Plan allows, at least on paper, some leeway in which applicants making under $30,000 aren’t automatically disqualified. Despite this, his application was denied based solely on employment.
Mickell promptly appealed:
On March 31, 2014, Mickell was sent to a “neutral” Plan physician, Dr. Craig H. Lichtblau, who is board certified in physical medicine and rehabilitation. His report is entered below. The Plan interpreted it as a determination that Mickell had the capacity to work.
He also saw neuropsychologist, Mark E. Todd, who found “due to his severe mood, behavior, physical problems and cognitive difficulties, Mr. Mickell is prohibited from consistently attending work or completing work requirements.”
This wasn’t enough to satisfy the Disability Board, so they pulled a couple more tricks from their well-worn magician’s hat.
One of those tricks is scheduling appointments a long distance from a physically impaired player’s residence, making it difficult for the player to keep the appointment. While 70 miles would have been a godsend to Darryl Ashmore, who was first scheduled over 1,500 miles of travel and then rescheduled closer and a “mere” 700 miles, the 70-mile distance created difficulty for Mickell in that it was on such short notice.
Since Mickell was disallowed from providing any medical records to the Plan physician, including those of other “neutral” plan doctors, he requested that the Disability Board provide prior medical history to the doctor, and on June 17, 2014, he reported for the exam. He learned that no medical records had been provided. The doctor spent less than 20 minutes with him and performed only a cursory examination and then made the determination that Mickell was able to work. This is an especially devious hat trick that has been performed multiple times. One retiree’s wife related a similar experience to me, stating when her husband was referred, she came prepared with medical records in hand. The examining doctor informed her than he’d been told there had been no prior examinations and on review of her husband’s records, rendered a qualifying disability determination. It seems the plan plugged that hole when dealing with Darren Mickell. With a doctor who’d now shot down his physical ailments as disabling, the Disability Board instructed Mickell to see an Atlanta neurologist despite an abundance of board-certified neurologists in South Florida where he lives. After a brief 15-minute exam, the neurologist concluded:
This is a trend I’ve observed in both disability and the especially in the NFL Concussion Settlement, in that if a player presents with problems like headaches and or depression, cognitive loss is blamed on those factors rather than the incessant head-banging inherent to football.
Mickell was then sent to a Plan neuropsychologist, Dr. Stephen Macciocchi and according to the complaint given a “very brief” examination in contrast to typical neuropsychological testing that usually takes from 6 to 8 hours.
Further armed with additional Plan doctors who found Mickell fit to work or possibly fit to work, his appeal was denied again. The denial didn’t elaborate. It merely said that he was denied based on the opinions of these physicians. Again, Mickell appealed and again the Disability Board sent him on a “where’s Waldo” style tour requiring yet more examination anywhere except in the vicinity of where Mickell lived. (Consider the hypocrisy in that the NFL insist players see a doctor within 150 miles of their primary residence to prevent doctor shopping in the NFL concussion settlement.)
Darren Mickell’s U.S. tour wasn’t over yet. Next stop—Texas.
After months of demands and travel which only served to worsen his physical condition, while still continuing to wear down what little he might have in the way of mental defenses, it should be apparent to a reasonable person that the Plan was shopping for doctors who’d tell them that Mickell wasn’t sufficiently impaired.
On July 8, he requested from the Plan, the report of the SEVENTH “neutral” physician he’d been sent to so that his personal doctor could review it. He was ignored. He made another request on July 27 and was again ignored. Despite the Plan Office having possession of the report on July 20, it wasn’t provided to him until August 11, only 5 days before the Board was scheduled to review his appeal, giving him and his doctor very little time. On August 19, the Board affirmed its own decision to confirm its denial of Mickell’s claim.
Through his attorney, Alisha Grisham, Mickell filed a lawsuit in the United States District Court for the Southern District of Florida.
It should probably be noted at this point that the $14 billion league isn’t looking at a huge amount of money to compensate Mickell and give him some much-needed relief and security.
The amount the Plan has spent on sending Mickell, on a cross-country trek in order to find doctors to deny him, compensation of those doctors, not to mention attorney fees likely in the hundreds of hours probably exceeds, by far the $32,600 that he’d receive annually in compensation for a cumulative 3 to 4 years, and possibly more. It seems abundantly clear that the league doesn’t have a problem with spending money—as long as it doesn’t go to the players. Perhaps this is the owners’ revenge for free agency, or perhaps a deep-rooted resentment in that they are unable to operate on a free labor model like the NCAA. Perhaps not. Whatever the reasoning, however, it’s clear that neither the NFL nor NFLPA take issue with feeding disposable retirees to the figurative lions in what often results in a real-life battle for survival for the players.
While many judges have ruled differently, and through their opinions seemed appalled at the effort expended by the Plan to discredit the players it was created to help, sadly, the Florida district court concluded that the Plan did not abuse its discretion in cherry-picking the physician reports and denying based on the few reports by their hired doctors that were unfavorable. Although Mickell was forced to leave his freight handling job shortly after filing his claim for disability and despite making less than $30,000 during the time he did work, Judge Cohn did not have a problem with the Plan contorting the clearly written Plan language to disqualify Mickell as the sole reason in his initial application.
The clear language of the Plan does not state that the $30,000 per year in earned income must be derived from league employment or that the remuneration must be from NFL career-related sources such as autograph signing.
Though the various Plan doctors find that Mickell could probably do some kind of light or sedentary work in view of his orthopedic problems, and the neurologists and psychologists, agree that he has cognitive issues but should be able to do “something” perhaps they should explain what that “something” is. Most people make a living with either their brains or their backs, and when both are impaired that precludes almost any type of work. Administrative judges for the Social Security Administration when making a determination consider many factors including the physical and mental capacities of the claimant, prior work history and if any work they may be capable of exists in sufficient quantity in the national economy to be relevant. In other words, just because a disabled claimant may be able to do “something,” unless there are adequate job opportunities for their limited skills, the person is considered disabled regarding employment prospects. This doesn’t seem to matter to the Plan, as long as they can paint a player with some type of hypothetical ability, it doesn’t matter if there are real jobs in the economy that would conform to the player’s needs and abilities.
Since the district court ruled in favor of the Plan, I hoped to find some insight into Judge James I Cohn’s mindset by searching the docket for all ERISA cases that he presided over and closed since January 2014 and came up with little. Of the 22 cases he closed, 17 were by settlement, 3 were remanded to state court, 1 was dismissed without prejudice, and 1 default judgment was entered for the plaintiff when the defendant failed to respond. The sole case in which he ruled on the merits was Mickell.
Judge Cohn’s grant of summary judgment in favor of the Plan boils down to this brief snip from his 26-page opinion.
He agreed that the Board had full discretionary authority to interpret and administer the plan, even though his opinion indicated that he found many of Mickell’s arguments plausible and credible. When this type of deference is granted, however, it turns the Plan into a clone of CBA Article 46 which gives the commissioner unlimited and unfettered authority to do as he pleases.
Judge Cohn, found no conflict of interest because NFLPA members are seated on the Board, however if he’d looked more closely, he’d soon realize that the NFLPA is deeply conflicted as they affirmatively acknowledge, they represent the interest of current and not former players, and they are fully aware that benefits to former players reduce the salary cap for actives.
During the time Mickell was battling the NFL Plan he applied for Social Security Disability and both Mickell and the Plan requested a stay pending the outcome of his SSA determination, both sides stating it would be dispositive in his NFL case. The stay was granted and Mickell was awarded SSA disability.
Judge Cohn wrote that he was “troubled by Defendant’s inconsistent positions with respect to the SSA Award.” Nevertheless, he ultimately ceded authority to the Plan and ruled against Mickell.
It was interesting to note when reviewing 5 years of ERISA claims in the Southern District of Florida, the majority of which were administered by an insurer, most settled in under 6 months and almost all within one year. The two longest-running cases were both former NFL players, the other being Darryl Ashmore, whom the district court awarded benefits finding the actions of the Plan arbitrary and capricious.
Now Darren Mickell’s fate and future rest in the hands of the Eleventh Circuit Court of Appeals. Hopefully, they will take a more critical look at the specifics of the case and consider the many times courts have found the plan to abuse discretion and treat disabled retired players in an “arbitrary and capricious manner.” For many disabled NFL retirees, ERISA law is their last line of defense, in the most important fight of their lives. It’s up to the courts to ensure the laws enacted to protect the disabled don’t become a mockery subjected to soulless whims of the NFL.
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