NFL Concussion Settlement: Some Good News and Some Bad News

By Jeff Nixon
May. 16, 2018

In the newest NFL Concussion Settlement Claims Report issued on May 15, 2018 there is some good news and some bad news.

The good news: Payments actually received by former players went up by over 10 million in the past 2 weeks, going from $171,624,754 up to $182,829,488.

The bad news: Out of 1,818 claims submitted by former players, 255 Claims have been denied.

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The good news: NFL appeals of Monetary Awards went from 70 down to 64. The number of appeals probably went down due to claims being placed into audit. To date, the NFL has won only 1 appeal of a Monetary Award.

The bad news: A number of claims that were previously approved, are now going through the audit process. This will obviously delay their payments - if they pass the audit, but it could also result in the denial of a previously approved claim.

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The good news: 37 monetary award totaling 28,706,834 are in the process of being paid to former players that submitted Level 1.5 and Level 2 claims.

The bad news: To date, only 11 payments for Level 1.5 and Level 2 claims have actually been received by former players.

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The good news: Former players with ALS and Parkinson’s disease have received $131,504,308 in monetary award notices, with over 100 million already paid out, or in the process of being paid out.

The bad news: Far more players than expected have been diagnosed with ALS and Parkinson’s. The NFL projected 32 ALS awards under the entire 65 year term of the Settlement, but 30 monetary award notices have already been issued. The NFL projected 14 Parkinson’s Disease awards in the first year of the Settlement, but 64 monetary award notices have already been issued, in just a little over one year.

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The good news: In a recent response to the Court overseeing the Settlement, the Claims Administrator said they have not denied any audited claims due to delays in getting the documents or information they have requested.

The bad news: Not all lawyers and former players are responding to the audit requirements – leaving their claims open to the possibility of being denied.

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The auditing of claims has been a huge bone of contention with many lawyers and former players, but this is something we agreed to when the $675 million cap on monetary awards was lifted and the NFL became liable for paying all approved claims, no matter what the total cost might be at the end of the 65 year term of the Settlement.

So, is it any surprise that the NFL is fighting tooth and nail to limit their liability?

The Claims Administrator is the only entity that can initiate an audit, but there is no doubt that some of the red flags being thrown by the NFL are influencing the Claims Administrator’s decision to audit certain claims.

Although the Claims Administrator is only required to audit 10% of claims, there have been a number of questionable claims that have increased the number of audits to 28% of all claims. To date, over 400 claims have been audited, with 139 of them being denied.

The Settlement Agreement allows audited Class Members 90 days, or such other time they determine necessary and reasonable, to respond to a request for information in an Audit. If a Settlement Class Member refuses to cooperate with an Audit, including by unreasonably failing or refusing to obtain and provide them with all the records and information sought within the time they specify, they have authority to deny the claim, without the right to appeal.

Nonetheless, the Claims Administrator has been very lenient with the 90 day period for lawyers and class members to respond to audit requests for documents. They recently told the court that even though they have the clear power to deny claims for lack of cooperation with an audit, they have not yet exercised that remedy. They said “Our goal is to provide the persons under audit with the time needed to explain things adequately so we do not unfairly issue an adverse Audit Report to the Parties and the Special Masters.”

One last thing regarding the denial of claims….

Early on in the claims process, our Co-Class Counsel, Seeger Weiss realized that there would be situations in which a player’s claim may be denied with respect to the asserted Qualifying Diagnosis, but that there was sufficient evidence to support a different Qualifying Diagnosis. For example, a player submits a claim for Level 2 Neurocognitive Impairment (moderate dementia) but the evidence supports only a Level 1.5 Neurocognitive Impairment (early dementia).

Under the Settlement Agreement, that claim would be subject to denial and the player would need to start all over again and file a new claim for a Monetary Award based on an asserted Level 1.5 Neurocognitive Impairment.

In an effort to streamline the process and avoid needless appeals, Seeger Weiss proposed that the AAP (Appeal Advisory Panel) should have the ability to approve a claim for a lesser Qualifying Diagnosis or for the asserted Qualifying Diagnosis but with a later diagnosis date.

After much negotiation, the NFL agreed, in part, to “downgrading,” but only in very limited circumstances. As a result, Seeger Weiss raised the issue with the Special Masters, who agreed with him and gave the AAP the discretion to “downgrade” claims without restriction.

Lawyers and players can appeal any downgrade of a diagnosis, but if they are satisfied with the AAP downgrade, at least they don’t have to start the claims process all over again.

I’ll end this article on that bit of good news.

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