Medical Benefits - Abes Baumann

More NFL retirees approved for dementia claims in rescored tests

abesbaumann on August 12, 2022

Original article from the Associated Press published on ESPN

PHILADELPHIA — Two years after a pair of former players sued the NFL over the treatment of Black retirees in the league’s $1 billion concussion settlement, hundreds of men whose medical tests were rescored to eliminate race bias now qualify for awards.

The newly approved payouts, announced in a report Friday, are a victory for NFL families in the decade-long legal saga over concussions. The 2020 lawsuit unearthed the fact that the dementia tests were being “race-normed” — adjusted due to assumptions that Black people have a lower cognitive baseline score. Changes to the settlement made last year are meant to make the tests race-blind.

The new results will add millions to the NFL’s payouts for concussion-linked brain injuries. A league spokesman did not return a phone call Friday or respond to emails sent in recent weeks seeking comment on the rescoring.

Of the 646 Black men whose tests were rescored, nearly half now qualify for dementia awards. Sixty-one are classified as having early to moderate dementia, with average awards topping $600,000, while nearly 250 more have milder dementia and will get up to $35,000 in enhanced medical testing and treatment, according to the claims administrator’s report.

Former players, lawyers and advocates say they will turn to getting the word out to more players who could receive awards.

“Our work has produced some great results and has opened many eyes,” said Ken Jenkins, a former running back who, along with his wife, petitioned the federal judge overseeing the settlement to make the changes and urged the Justice Department’s Civil Rights Division to investigate. “Now we’re really focused on getting as many players who deserve compensation to be compensated.”

This first group of players had the best chance of success because they otherwise passed the testing protocols and would have qualified if they were white. Thousands of other Black former players can ask to be rescored or retested, but their cases might not be as strong based on earlier results for dementia, validity and impairment tests. About 70% of active players and 60% of living retirees are Black.

The fact that the original testing algorithm adjusted scores by race — as a rough proxy for someone’s socioeconomic background — went unnoticed for several years until lawyers for former Pittsburgh Steelers players Kevin Henry and Najeh Davenport sued the league. Factors such as age, education and race have long been used in neurology to help diagnose dementia, but experts say the formula was never meant to be used to determine payouts in a legal case.

“In 2022, how can you possibly think that another human being comes out of the womb with less cognitive ability? It’s just impossible to believe that that can be true,” Jenkins said. “It’s unspeakable.”

Advocates fear that many former players don’t know they can be rescored or retested, especially if they have cognitive issues and live alone.

“Men who are homeless, men who originally signed up but their cognitive function changed, men who are divorced or isolated — we are going to go looking for them,” said Amy Lewis, Jenkins’ wife.

The couple, once critical of class counsel Chris Seeger for his response to the issue, are now working with him to get the word out.

Seeger, the lead lawyer for the nearly 20,000 retired players who negotiated the settlement with the NFL, has apologized for initially failing to see the scope of the racial bias. He vowed in a recent interview to “make sure the NFL pays every nickel they should.”

The league’s tally just passed $1 billion in approved claims. However, appeals and audits mean the actual payouts lag behind that number and stand at about $916 million. They include awards for four other compensable diagnoses: Alzheimer’s disease, Parkinson’s disease, Lou Gehrig’s disease and deaths before April 2015 involving chronic traumatic encephalopathy.

As reviewers tackle the thornier dementia claims, the process has slowed and audits and appeals intensified.

“Their mantra is deny, deny, delay until you die,” said James Pruitt, 58, a wide receiver who played for Indianapolis and Miami from 1986 to 1991.

After his NFL retirement, Pruitt became a teacher and middle school principal in Palm Beach County, Florida. But in 2010, in his mid-40s, the district asked him to step down. He could no longer perform his duties.

Over time, he stopped calling on friends from his playing days.

“I don’t get out, and I don’t remember a lot of things. I’ve been told that I repeat things,” he said. “So I’m kind of embarrassed by the whole situation.”

After the settlement was approved in 2015, Pruitt and his wife attended meetings with the lawyers who traveled the country to pitch the plan to retired players’ groups.

“We were told … this was going to be a very easy process, you just need to go to the doctors, get a qualifying diagnosis from them,” said Traci Pruitt, 42. “Yet here we are six years later, and we’re still getting the runaround.”

The couple was twice approved by doctors only to have the decision overturned — once after their first doctor was removed from the program. Their lawyer believes they will be successful on their third try, under the race-neutral scoring formula. They are still waiting to hear.

Traci Pruitt, an accountant who works from home, said an award would ensure she gets the help she needs to care for her husband.

“While I love him, I don’t necessarily have that background and skill set,” she said.

Seeger said he believes the claims process is picking up steam after a slow start.

“I know folks have said they weren’t moving that well for a while. I think we’ve won some appellate battles with the courts,” Seeger said. “I don’t think the NFL expected to pay $1 billion — and we’re about to cross $1 billion.”

A Workers’ Late Notice of the Employer’s Uninsured Status Limits Both Medical and Wage Loss Benefits

Eric Abes on June 16, 2016

By: Sandra Weigel Kokal

In a recent Commonwealth Court Case, the Court held that if an injured worker fails to notify the Uninsured Employers Guaranty Fund (Fund) within 45 days after the injured worker knows that the employer does not have workers’ compensation insurance, the Fund is NOT obligated to provide “compensation” from the date of the injury, but rather from the date the Fund received notice of the claim. The Court stated that “compensation” includes both wage loss benefits and medical benefits.

In this recent case, the Workers’ Compensation Judge (WCJ) had granted the injured worker’s Claim Petition against the Fund for both wage loss and medical benefits from the date of the worker’s injury. The employer appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (WCAB). The WCAB agreed with the WCJ’s decision to grant medical benefits from the time of the worker’s injury, but it limited the worker’s receipt of wage loss benefits to the date that the worker had notified the Fund of the employer’s lack of workers’ compensation insurance.

The Commonwealth Court reversed both the WCJ and WCAB decisions. The Commonwealth Court stated, in accordance with a recent PA Supreme Court decision, because the injured worker did not give notice pursuant to the Workers’ Compensation Act within 45 days after he knew the employer was uninsured, he could only receive workers’ compensation benefits for wage loss AND medical expenses incurred after the date notice was given to the Fund. In other words, because the worker’s notification to the Fund was late, the Fund was NOT required to pay for medical or wage loss benefits prior to receiving formal notice of the claim.

As this case demonstrates, you should consult with an experienced workers’ compensation attorney so you do not miss any important notice requirements and forfeit your workers’ compensation benefits.

Who Chooses my Doctor for a Work Injury?

Eric Abes on March 9, 2016

If you have been injured at work it’s possible that your employer, or its workers’ compensation insurance carrier, have instructed you to treat with one particular doctor. Many injured workers believe that they must treat with the doctor to whom they are sent. However, this is not the case.

The Pennsylvania Workers’ Compensation Act permits an employer to maintain a list of panel of physician. Each list must contain at least six (6) different medical providers. It is true that, if your employer maintains such a list, the workers’ compensation insurance carrier only has to pay for treatment provided by those doctors – at least during the first 90 days after the first date of treatment for the injury. But, what employers and insurance carriers rarely tell injured workers is that the worker has the right to choose the doctor (or doctors) who will provide treatment. So, if your employer tries to tell you that you must see one particular doctor, ask your employer to see the list of panel physicians – and then choose whichever doctor with whom you want to treat.

It’s also important to remember that you have the right to switch from one doctor to another if you desire. Thus, if you’ve chosen to treat with one doctor on the list of panel physicians and you are not pleased with that doctor, you have the right to begin treating with a different doctor. In fact, you can treat with all of the doctors on the list of panel physicians if you wish. As long as you are treating with one of the doctors on that list, the insurance carrier must pay for the treatment.

Finally, you should also be aware that, if you’re employer doesn’t maintain a list of panel doctors, you are free to treat with any doctor of your choosing. Moreover, if you wish to see a specialist – such as an orthopedic surgeon, neurologist, etc. – you are not required to get a referral from your family doctor as is often the case with health insurance plans. Rather, you may simply call the doctor, make the appointment, and the insurance carrier will have to pay for the treatment as long as the treatment was necessitated by the work-related injury and is reasonable and necessary.

NFL Concussion Settlement

Eric Abes on September 30, 2014

A Federal Court has approved the Settlement of the Class Action Lawsuit filed by former NFL players against the National Football League. These former players, now retired, filed suite accusing the NFL for damages for not informing them that they may have possible brain injuries and consequences of same. The settlement discussions were long and tense and, at times, included dissension within the Plantiff’s own ranks.

The final settlement provides for players to receive the following three benefits:

1. Medical exams for symptoms of concussion syndrome for all retired NFL players so that if conditions later develop or deteriorate there will be a baseline for same.

2. Financial awards for diagnosis of brain injury diseases, such as Alzheimer’s, Parkinson’s, Dementia and certain cases of Chronic Traumatic Encephalopathy (CTE) which may not be diagnosed until after a player dies.

3. Educational programs and various initiatives to make the game of football safer.

These claims for injuries and medical treatment resulting from concussions will be paid in full for up to 65 years.

Of note, the retired players or their legal representatives or their family members do not have to prove that the player’s injuries were caused by playing NFL football. They simply have to prove the conditions exist.

Separately, these players theoretically could have filed individual claims against their respective teams for Workers’ Compensation benefits. However, because the players were not made aware of the harm and the statute of limitations for a work injury would have run, the above settlement for a vast majority of them is their only alternative.

Today’s players are now more aware of the consequences of a concussion. They can also avail themselves of Workers’ Compensation benefits pursuant to their individual state Workers’ Compensation laws.

Of course, concussions are not limited to professional athletes. Many combat Veterans have suffered severe concussions. However, professional athletes are more likely to have multiple concussions. Of course, anyone in any occupation could suffer a concussion whether it be from an automobile accident while in the course of their employment or some other traumatic event.

Today’s worker, whether it be a Pittsburgh Steeler or a Pittsburgh steelworker has become far more educated as to the benefits to which they may avail themselves if they suffer such an unfortunate injury.

Dealing with Panel Doctors

Eric Abes on July 17, 2014

Many employers set up so-called panels of medical providers to treat injured workers for work related injuries. Under the new Pennsylvania Worker’s Compensation act if an employer sets up a list of at least six healthcare providers the injured worker has to treat with a provider on that list for the first 90 days of treatment. If the worker treats with someone not on the list, it would be at his/her expense. The 90 days begins to run with the first day of treatment and ends on the 90th calendar day from that point.

Many employers attempt to direct the injured worker to a specific medical provider. This can be an occupational medicine doctor that the employer sends everyone to or it could be the occupational medicine Department of local hospital. Needless to say, these referrals are very important to the physician or facility to which the injured worker is being steered. The injured worker has every right to question exactly where the loyalty of such providers actually lies. Every injured worker has the right to pick any doctor on the list with whom to treat, regardless of the preferences of the employer. Of course, if the injured worker has a back problem he cannot treat with the eye doctor on the list. So long as the physician treats the kind of problem the injured worker has, the worker can choose to see that physician. Workers should firmly but politely exercise their right to see the doctor on their list of their choosing. When in doubt about what one is able to do, injured workers should always consult a knowledgeable workers compensation attorney.

Sometimes during the 90 day surgery is recommended by one of the panel doctors. The best approach to dealing with this situation would be to wait until after the 90 days has expired, so that the injured worker can see a surgeon of his or her own choosing. The Worker’s Compensation act clearly provides that a workers compensation claimant can see any physician here she chooses after the 90 days. Our firm often recommends to our clients that he or she make an appointment with their own physician for the 91st day so as to begin the process as soon as possible.

Our Worker’s Compensation attorneys often see appointments made for injured workers near the end of the 90 day. We see panel doctors frequently releasing injured workers to full duty and/or certifying full recovery as the workers approach the 90 day deadline. The safer course for injured workers who already have an appointment scheduled after the 90th day is to avoid an examination with the panel doctor close to the 90 day deadline.

If you, the reader, is looking for a workers compensation attorney in Pennsylvania, please feel free to call us. You will receive a no charge and no obligation consultation.

More NFL retirees approved for dementia claims in rescored tests

A Workers’ Late Notice of the Employer’s Uninsured Status Limits Both Medical and Wage Loss Benefits

Who Chooses my Doctor for a Work Injury?

NFL Concussion Settlement

Dealing with Panel Doctors

Friendly Guidance for:

Areas of Practice:

TALK WITH AN ATTORNEY TODAY!