Special Master Appeal Decisions

360. Who determines the appropriate model for predicting premorbid functioning?


During neuropsychological testing, the examining neuropsychologist must estimate the Player's previous level of performance using the ACS Test of Premorbid Functioning ("TOPF"), and the clinician should select a model based on the patient's background and his or her current level of reading or language impairment. The selection between models is a matter of fine clinical judgment and the Settlement Agreement explicitly vests that choice between statistical models with the neuropsychologist. The Claims Administrator defers to the neuropsychologist's choice of models. However, if the particular facts of a claim indicate the neuropsychologist's choice between models is medically unsound, meaning without any articulable medical rationale, the AAPC may question that selection. In that case, the AAPC must provide a detailed explanation why the neuropsychologist's choice of model is inappropriate. Click here for additional information and to read the Special Master's full decision on this topic.

361. How much deference does the Claims Administrator give to the Diagnosing Physician's determination that neuropsychological testing is medically unnecessary?


Generally, deference is given to the determinations made by a diagnosing Qualified MAF Physician because of the doctor’s eminence and training, as well as his or her personal evaluation of the Player. However, if the Qualified MAF Physician indicates that neuropsychological testing is medically unnecessary because of the severity of the Player’s dementia, the Claims Administrator has the obligation to determine if that conclusion was “reasonably determined.” In this context, the Qualified MAF Physician’s conclusion is “reasonably determined” if the doctor’s conclusion can be identified as an application of the Settlement’s narrow exception to the testing requirement. In other words, it was reasonable for the doctor to conclude that the testing would not generate valid results (note: stating that a task or test will be difficult for a Player is not the same as saying the testing would not generate valid results). Click here for additional information and to read the Special Master's full decision on this topic.

362. How should a Qualified MAF Physician apply the Generally Consistent standard when making a Qualifying Diagnosis?


“Generally consistent” does not mean the diagnosis must meet the same requirements as the BAP Battery, but requires the diagnosing Qualified MAF Physician to exercise reasoned, individualized, and clinical judgment in administering testing and rendering a diagnosis that is generally consistent with the BAP battery and diagnostic criteria. The physician cannot loosely construe the criteria that have been set forth in the Settlement Agreement. The test for which deviations are generally consistent is not a mechanical one. If the diagnosis deviates from the Settlement criteria, the physician must provide a written explanation. This will enable the Claims Administrator to defer to the diagnosing physician’s judgment.

The explanation must be an accounting of why the diagnosing physician believed that the deviation was appropriate. The Claims Administrator will determine whether the explanation’s rationale and its completeness satisfy this requirement. Deference to articulated, individualized, and reasoned medical judgments will be customary. Click here for additional information and to read the Special Master's full decision on this topic.


363. Can new evidence or records, not considered by my physician, that show behavior or activity occurring before my Qualifying Diagnosis result in a Denial of my Claim?


Evidence establishing a pattern of behavior that is inconsistent with the factual bases of a diagnosis will always raise questions about a claim’s legitimacy. However, new evidence that shows limited episodes of behavior or activity well before the date of a Qualifying Diagnosis will generally not invalidate a Diagnosis of Neurocognitive Impairment. Click here for additional information and to read the Special Master’s full decision on this topic.

364. Can new evidence or records, not considered by my physician, that show behavior or activity occurring after my Qualifying Diagnosis result in a Denial of my Claim?


In order for new evidence of a Player’s conduct after his Diagnosis to undermine that Diagnosis, it must establish a pattern of behavior that is inconsistent with the factual basis of the Diagnosis. Second-guessing the diagnosing physician’s considered views about the level of functional impairment would require strong countervailing proof to invalidate the Diagnosis. Click here for additional information and to read the Special Master's full decision on this topic.  

365. Does my evaluating physician have to address my medication side-effects or other conditions when deciding whether I have a Qualifying Diagnosis?


Where the Player, at the time of his Diagnosis, is taking medications with known side-effects on cognition, or where there is evidence of pain or sleep loss at the time of diagnosis that is potentially closely related to a Player’s functional losses observed, the diagnosing physician should offer some explanation of the role, if any, of such factors in the Diagnosis. The Claims Administrator should then defer to the clinician’s judgment or ask for more information about those factors. Click here for additional information and to read the Special Master's full decision on this topic.

366. If my performance on validity test measures is determined to invalidate my neuropsychological testing, can that testing support a Qualifying Diagnosis?


No. For Levels 1.5 and 2 Neurocognitive Impairment, Players must meet the requirements of the four diagnostic criteria set forth in Exhibit A-1 to the Settlement Agreement. Validity measures are explicitly required by the Settlement as part of the neuropsychological test battery. Neuropsychological test results must supply valid measures of cognitive performance to support a Qualifying Diagnosis, and a diagnosing physician or examining neuropsychologist must provide an explanation if concluding the test results are valid despite performance or behavior that otherwise may indicate invalidity. 

The Claims Administrator and Special Masters may ask the AAP and/or AAPC for advice on whether a Player’s neuropsychological testing can be considered valid. Click here for additional information and to read the Special Master's full decision on this topic. 

Reminder: For Level 2 Neurocognitive Impairment diagnoses made outside the BAP only, the diagnosing physician can certify that certain neuropsychological testing required in the BAP was medically unnecessary because the Retired NFL Football Player's dementia was so severe.

367. When will the Claims Administrator apply the Stroke offset?


The Settlement Agreement directs that the word Stroke is defined by the World Health Organization’s International Classification of Diseases, 9th Edition (ICD-9) or the World Health Organization’s International Classification of Diseases, 10th Edition (ICD-10). To apply the Stroke offset, the Claims Administrator must: (a) find evidence of the event in the medical records, and (b) determine that the Player suffered a Stroke under the Settlement’s precise meaning of that term. If the Claims Administrator determines the medical records show the Player suffered a Stroke, the Player has the burden of showing by clear and convincing evidence that his Qualifying Diagnosis was not causally related to the Stroke. Click here for additional information and to read the Special Master's full decision on this topic.

368. Can one diagnosis be used as proof that a Player had a different Qualifying Diagnosis?


No. The Settlement criteria for each Qualifying Diagnosis requires distinct proof. Contemporaneous proof of each Qualifying Diagnosis must be evaluated on its own terms, paying attention to the actual evidence before the diagnosing physician and the Claims Administrator. For example, evidence of an Alzheimer’s Disease Diagnosis is not itself indicative of an earlier Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment under the Settlement because the criteria for Alzheimer’s Disease and Level 1.5 have very different technical specifications. Click here for additional information and to read the Special Master's full decision on this topic.