More NFL retirees approved for dementia claims in rescored tests

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.”

Sleepy Drivers and Truck Accidents

By: Roger D. Horgan

The job driving a large truck over long distances is exhausting. A good driver must be on high alert at all times because of the complexity of the task and the great harm tractor trailer accidents can cause. The Federal Motor Carrier Safety Regulations exist to protect the public from harm that these enormous, heavily loaded vehicles cause.

Among the most important regulations are those that prohibit drivers of commercial trucks from driving for too long. It is entirely predictable that a driver who is on the road—beyond the normal and safe limits of human endurance—will lose his edge. The driver then becomes a far greater risk of harm than one who is well rested.

It is the predictability of accidents caused by tired drives that exposes drivers and their employers to punitive damages claims—intended to punish wrongdoers—on top of normal compensatory damages. Pennsylvania Courts have ruled that failure to adhere to driving time limits can be considered recklessness and supports a claim for punitive damages, for example Gaffin v. George Walker, Jr. and Pocono Produce Co., Inc. There is no specific limit on the amount of punitive damages. This is why punitive damages remain an incentive for drivers and their employers to comply with the regulations…and save lives!

Liens and Subrogation in Auto Accident Cases

By: Roger D. Horgan

Medical liens and subrogation. These obscure misunderstood words can have a dramatic impact on the victim of automobile negligence. These concepts come into play when the victim’s auto insurance is insufficient to pay all of the medical expenses arising from an accident. After the auto coverage has been exhausted, the victim’s health plan will step in to pay the remaining bills, under the terms of that plan. The health plan’s claim well then seek reimbursement from the proceeds of the accident litigation, also known as enforcing a lien or seeking subrogation.

The problem with medical liens is that they can overwhelm a case and lead to negative and unjust results. If the defendants liability coverage is inadequate, and the health plan insists on 100% reimbursement of what it paid, the true victim may bear the shortfall and be left with little or nothing. Many accident victims are sorely disappointed to find that they must reimburse their health insurance company even though they have paid for that coverage.

The lienholders have enormous power over the resolution of the case and how much the accident victim ultimately receives. The best way to prevent being held hostage in this manner is to purchase as much uninsured and underinsured motorist protection as you can possibly afford. This enlarges the pot from with you and the lienholder are paid, and it increases the likelihood that you, the accident victim, can be fully and fairly compensated.

The Consumption of Alcohol Is Not Always Admissible at Trial

By: Roger D. Horgan

It is perfectly legal for a driver over the age of 21 years to drink and drive in the Commonwealth of Pennsylvania! That may come as a surprise to people, given the popular admonishment, “Don’t Drink and Drive!” In reality, there is a prohibition only against driving while under the influence of alcohol to such a degree that it renders the driver incapable of safe driving. Impaired driving may be proven by behavior such as swaying, slurred speech, etc., coupled with a police officer’s opinion of intoxication. It can also be proven by testing the driver’s blood alcohol level. In Pennsylvania, the blood alcohol limit is .08%. That is the criminal side.

What happens in a civil lawsuit when the injured party, the Plaintiff, has consumed alcohol? One might think that proof of the consumption of any alcohol whatsoever should be admissible into evidence. It should be left up to the jury as to what weight should be placed upon the consumption of minor amounts of alcohol, right? Historically, that has not been the case. Pennsylvania courts have ruled that in the absence of proof of alcohol induced impairment, the mention of alcohol consumption is too prejudicial to allow a jury to hear. In 1956, the Pennsylvania Supreme Court said, “While proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”

The interplay of the factors surrounding alcohol as evidence in an auto accident case is demonstrated in a recent Pennsylvania Superior Court case of Rohe v. Vinson in 2016. Mr. Rohe was a motorcyclist who was injured in an accident involving a truck which turned into his lane of travel. Mr. Rohe admitted to having drunk several beers over the course of an afternoon of riding and dining, but denied that he was intoxicated. He asked the trial court to prevent any evidence of his consumption of alcohol from being presented to the jury. The trial court denied that request, and Rohe lost his claim for damages.

He appealed to the Superior Court, which reversed the decision of the trial court, and ordered a new trial at which evidence of Rohe’s alcohol consumption will not be presented to the jury. The Superior Court concluded that the defendant had no viable proof that Mr. Rohe was unfit to drive as the result of alcohol consumption. The record established that none of the individuals with whom Rohe interacted after the accident, including a State Trooper, observed anything in Rohe’s demeanor to indicate that he was under the influence of alcohol. Further, his blood alcohol level as tested two hours after the accident was found to be below the state limit of .08%, at .0706%. The Court also ruled that the defendant’s efforts to calculate the blood level at the time of driving by way of the expert opinion of a toxicologist amounted to no more than speculation, and that the opinion should not have been admitted. The Court was critical of the expert’s methodology, and found the opinion to be too unreliable to have been submitted to the jury.

While one is best served refraining from driving after consuming any alcohol, the law remains that evidence of alcohol is only permitted where it can be shown that the alcohol the driver consumed rendered him unable to drive safely.

THE DOWN-SIDE OF AN EMPLOYER PROVIDED VEHICLE

By: Roger D. Horgan

You have just landed a new job, or received a promotion, which has the added benefit of a company car. You even get to take it home and use it as your personal car. What could possibly be wrong with that set up?

A lot. You get in an accident while driving your shiny new company car. The other driver admits responsibility, and his insurance company tenders his policy limits, which, in Pennsylvania, may be as little as $15,000.00. Since the responsible driver has inadequate insurance, you want to look at the company car policy to see if it has any underinsured motorist coverage, known as UIM coverage. The policy covering the employer-provided vehicle may or may not have UIM coverage. Further, even if it has such coverage it still may be inadequate to cover the value of a serious injury claim. The next place to look is the policy you have purchased to cover your personal vehicles. You determine, thank goodness, that you have purchased a great deal of UIM coverage, and initially feel relief that you had such great foresight to protect you and your family.

Unfortunately, your relief is likely to be short lived because your insurance carrier is likely to deny your UIM claim. Virtually every automobile insurance policy issued in the state of Pennsylvania contains a limitation on UIM claims that applies when the insured is injured while occupying a vehicle that he does not own, but regularly uses. This is known as the Regularly Used/Non-owned Vehicle Exclusion. These exclusions are written into auto insurance policies because the insurance company does not want to be responsible for vehicles that it does not insure, and for activities of the driver beyond what the insurance company expects when the policy is issued. They contend that, if required to pay to such UIM claims, they would be forced to pay benefits for claims that were not anticipated by the premiums they charged.

The saddest examples of the Regularly Used/Non-owned Vehicle Exclusion have to do with police officers who are seriously injured in an automobile accidents while on the job. While the officer was entitled to the police equivalent of worker’s compensation, those benefits are not intended to and do not cover all of his damages. His only sources of compensation for his other damages is a claim against the defendant driver, plus any available UIM coverage. Most employers do not provide UIM coverage on their vehicles because it is not required by law, and therefore it is an avoidable expense. Even if the employer does have UIM coverage it may well be inadequate in serious injury cases. By operation of the Regularly Used/Non–owned Vehicle Exclusion in his personal policy the injured police officer cannot tap into the UIM coverage he purchased, and he can be left far from fully compensated for his losses.

This outcome was challenged by a police officer in the Pennsylvania Supreme Court case of Williams v. GEICO Gov’t Employees. Ins. Co., 613 Pa. 113 (Pa. 2011). The policy language prohibited recovery of UIM benefits, but the officer argued that enforcing that language, and denying such benefits, violated the strong public policy in favor of protecting police officers. The court sympathized with the officer’s predicament, but nevertheless found that public policy was not violated by the Regularly Used/Non-owned Vehicle Exclusion, and confirmed the denial of his claim for UIM benefits.

“In summary, we reaffirm the decision in Burstein, holding that the regular-use exclusion is not void as against public policy. A contrary decision is untenable, as it would require insurers to compensate for risks they have not agreed to insure, and for which premiums have not been collected.” Williams v. GEICO Gov’t Employees. Ins. Co., 613 Pa. at 135 (Pa. 2011).

This is now well-settled law in Pennsylvania, and the question is what can a person who regularly drives a vehicle which he does not own to protect himself? Unfortunately, there appears to be no perfect answer. One suggestion is to purchase accident disability coverage separate and apart from automobile insurance. However, recovery under such policies is generally limited to a particular, monthly dollar amount. Worse, some of them would reduce payments of benefits by the amount of workers compensation or similar benefits received by the victim. Another suggestion would be to convince the employer, if possible, to purchase adequate UIM coverage for the vehicles it provides to employees. This should be a part of any labor/management negotiations where employees are provided with vehicles by the employer, and it should be requested by any employee who regularly drives a vehicle provided by an employer. In any event, be careful out there!

One Accident; Multiple Cases

By: Roger D. Horgan

Our firm has a varied, injury based practice. We handle workers compensation claims, automobile accidents, trip and fall accidents, social security claims, veteran’s claims, and other injury related matters, often all for one client, for one injury. An individual is struck and permanently disabled by an automobile on the job may well have several claims to bring: a Worker’s Compensation claim, a claim against the negligent driver, a claim against his own automobile insurance Company, a claim against a disability plan, and, finally, a claim for Social Security disability benefits. Our experience and expertise across these various types of cases can be very important when a particular accident leads to two or more claims.

Proceeding with any one of these claims without accounting for its impact upon other potential claims can lead to unexpected, and potentially disastrous, results. One potential disaster would be failing to meet the prerequisites for bringing an underinsured motorist claim, also known as UIM, against one’s own insurance company. A UIM claim arises when the defendant driver’s automobile insurance policy limits are not adequate to meet the value of the claim against him. If the victim has purchased UIM coverage it would step in where the defendant’s liability limits leave off. So, if the defendant has the state minimum liability limits of $15,000, and the case is worth $30,000 a victim who has purchased UIM coverage will have a claim for the difference. However, if the victim has taken the $15,000 offered by the defendants insurance company without notifying and obtaining approval from his own insurance carrier, he will have lost his right to bring the claim for UIM benefits. That is because his insurance company has the right to pursue a claim against the driver for anything it is required to pay its policyholder. This is commonly known as a waiver of subrogation. While insurance companies very rarely refuse to waive subrogation, they routinely rely upon the failure to obtain waiver of subrogation before the settlement with the defendant driver to defeat claims for UIM benefits.

As another example of one case affecting another was seen in the recent case of McConnell v. DelPrincipe from Lawrence County. The victim in that case was hit by a car during the course of his work day. Because it was a work related accident his first step was to bring a Worker’s Compensation claim. In that case, the Worker’s Compensation Judge determined that the victim was not disabled, did not sustain a loss of earnings and that he had fully recovered from his cervical strain/sprain caused by the accident. The victim did not file an appeal from the Worker’s Compensation judge’s decision.

Thereafter, he brought a lawsuit against the driver claiming that he had suffered injuries including a herniated disc in his cervical spine, headaches, cervical sprain/strain, aggravation of degenerative disc disease, and other injuries that limited his work activities. However, because the issue of his injuries had been previously litigated in the Worker’s Compensation claim he was prohibited under the doctrine of collateral estoppel from claiming anything more than a cervical sprain/strain in the lawsuit against the driver. The failure to coordinate the handling of these cases, and in particular the failure to file an appeal from the Worker’s Compensation decision, made the claim against the defendant driver nearly worthless.

At Abes Baumann, we are vigilant and experienced in coordinating the various claims that may arise from one accident so as to maximize recovery and prevent unexpected and negative results.

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