The Special Master rejected a Retired NFL Football Player’s appeal of the Claims Administrator’s denial of his Supplemental Level 2.0 claim. The neurologist’s failure to show that the Player’s CDR scores were assigned due to cognitive loss, and not other factors, led to the Supplemental Claim’s denial. A diagnosing physician’s articulated consideration of confounding factors is typically sufficient to establish that a Player’s impairment is generally consistent with the Settlement’s requirements. Here however, the neurologist never discussed the Player’s depression and anxiety as possible contributors of his functional impairment, despite multiple inquiries. Both because the evidence of the Player’s functional loss was partially inconsistent with the required showing under the injury definitions, and because his physician did not attempt to show that it resulted from cognitive loss, as opposed to mental health and other factors, the Special Master found that the Player did not offer clear and convincing evidence of error in the denial.

A Retired NFL Football Player appealed the Claims Administrator’s denial of his Alzheimer’s Disease claim, arguing that the AAPLC and the Claims Administrator erred in concluding that the Player’s MoCA scores (to detect mild cognitive impairment and dementia), depression and migraine symptoms, and biomarker testing intertwined to contraindicate Alzheimer’s Disease. The Special Master denied the appeal after concluding that the non-linear trajectory of the Player’s MoCA score, and the absence of biomarkers, combined to support the Claims Administrator's determination. The Special Master further concluded that use of biomarkers as probative, not dispositive, evidence in diagnosing Alzheimer's is consistent with the DSM-5 definition and thus the Settlement Agreement, and that the Claims Administrator is empowered to make sure that Diagnosing Physicians practices in using biomarkers is reasonably consistent.

The Claims Administrator denied a Retired NFL Football Player’s Level 2 Neurocognitive Impairment claim on the grounds of missing valid neuropsychological test scores. The Settlement requires neuropsychological testing to establish a Diagnosis of Level 2 Neurocognitive Impairment and provides for waiver only when the diagnosing physician can certify that it is medically unnecessary because the Retired NFL Football player’s dementia is so severe. The diagnosing physician’s judgment must be "reasonably determined," meaning that it must be reasonable to have concluded that the testing would not generate valid results. Neither the neurologist’s contemporaneous report nor his later explanation illustrate impairment so severe that it would preclude the Player from completing neuropsychological testing. The Special Master denied the appeal but granted the Player a 6-month extension to request an Expanded BAP examination.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Neurocognitive Impairment Monetary Award, arguing that there was clear and convincing evidence that the Player’s neuropsychological testing was invalid. The NFL Parties’ burden of proof on appeal is high: "clear and convincing evidence" means it is highly probable or reasonably certain that there was an error. The Special Master asked for advice from the Appeals Advisory Panel who applied the Program’s "nested system of deference" regarding the validity testing. Because the neuropsychologist did not complete a Slick checklist, her validity analysis did not result from completely articulated reasoning, and thus the AAP conducted a thorough and independent review of the validity testing. The AAP advised that the testing did not reliably support the inference that the Player engaged in sufficient task engagement. Relying on that factual judgment, the Special Master found that there was clear and convincing evidence that the scoring was not valid, contrary to the Claims Administrator’s determination.

The Special Master denied the appeal of the NFL Parties who contended that the Retired NFL Football Player’s mental illness compromised his neurocognitive testing results.  The Settlement Agreement requires that the examining neuropsychologist consider a Player’s psychiatric condition and its relationship to his performance across the measured cognitive domains, just as an examining neurologist must consider its relationship to his functional impairment. The Special Master found that the effects of mental illness on a Player’s neuropsychological testing are not clear and convincing evidence of error when, as here, the neuropsychologist has accounted for those effects in her thorough and, according to the AAPC, reasonable analysis.

The Claims Administrator determined that the CTE claims of two Representative Claimants were untimely under Section 6.3(f) of the Amended Class Action Settlement Agreement because their Qualifying Diagnoses post-dated April 22, 2015. Section 6.3(f) requires that a Qualifying Diagnosis of Death with CTE be made through a post-mortem diagnosis made by a board-certified neuropathologist prior to the Final Approval Date (April 22, 2015) for deaths that occurred prior to the Final Approval Date. The Claimants appealed, arguing first that they satisfied the diagnostic deadline for a Qualifying Diagnosis of Death with CTE, because a "diagnosis" occurs at death. The Special Master found that a Diagnosis of Death with CTE occurs when a board-certified neuropathologist personally examines the decedent’s brain tissue and concludes that it is marked by CTE. Second, Claimants maintained that, even if the Amended Settlement Agreement’s deadline had passed, the unamended Settlement Agreement contained no such deadline. Looking at the plain language of the Unamended Settlement Agreement as well as extrinsic evidence, the Special Master concluded that the Unamended Settlement Agreement would have denied recovery for Death with CTE that preceded July 7, 2014, but which was diagnosed by examination of brain tissue after that date.

The Special Master denied the appeal of the NFL Parties who contended that biomarker testing definitively ruled out the Retired NFL Football Player’s Qualifying Diagnosis of Alzheimer’s Disease. The Appeal raised the issue of what diagnostic material the Settlement treats as conclusive for a Qualifying Diagnosis of Alzheimer’s Disease. The Injury Definition for Alzheimer’s Disease under the Settlement, based on the scientific consensus of 2015, advises against dispositive use of biomarker correlates of clinical manifestations of Alzheimer’s Disease and relies on the World Health Organization’s International Classification of Diseases 9th or 10th Edition (ICD-9 or ICD-10), or the definition of Neurocognitive Disorder due to probable Alzheimer’s Disease in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The Program’s expert neurologists confirmed that biomarkers are not required for a diagnosis under the Settlement’s definition and the ICD-10/DSM-5. The Special Master found that the Qualified MAF Physician made the Player’s Qualifying Diagnosis based on over ten years of provider documentation and multiple third party affidavits that met the clinical criteria for diagnosis under either the ICD-10 or the DSM-5. The absence of biomarkers of Alzheimer’s cannot be clear and convincing evidence that the Claims Administrator’s decision to grant an Award was in error.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Neurocognitive Impairment Monetary Award. The Player completed two sets of neuropsychological evaluations (2018 and 2019 testing) that the Claims Administrator rescored under the New Method. The revised scores from the 2018 testing reflected Level 1.5 Neurocognitive Impairment, however, the 2019 testing scores did not. The NFL Parties challenged the Player’s Award on the grounds that: (1) the Retired NFL Football Player’s 2018 neuropsychological testing was invalid; and (2) even if valid, the 2019 neuropsychological testing should invalidate it. At the Special Master’s request, an AAP Consultant reviewed the Claim and determined that there was not adequate evidence to prove invalidity. The NFL Parties argued that the improvement between the two sets of testing was inconsistent with the presence of true organic impairment. The AAPC found, however, that there was no broad pattern of improvement or decline in the Player’s testing from 2018 to 2019. Further, as explained in FAQ #109, the Settlement Program contemplates the use of neuropsychological testing completed more than a year before a Player’s neurological evaluation if the Claims Administrator approves its use by the Qualified MAF Physician to measure impairment. The Claims Administrator’s exercise of discretion under FAQ #109 was "not erroneous" because (1) the 2018 testing was performed while demographic corrections were permitted under the Settlement Agreement, and (2) this was the first and only use of the 2018 testing battery.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Neurocognitive Impairment Monetary Award on the grounds of invalid neuropsychological testing. According to the Special Master, the NFL Parties must show by clear and convincing evidence that the Player’s test data was not "a valid reflection of his optimal level of neurocognitive functioning," based on his performance on the nine Slick validity criteria. The NFL Parties asserted that he failed two Slick criteria (#1 and #7) and both the AAP Consultant and AAP Member who reviewed the claim agreed. The Special Master determined that no deference was due to the evaluating neuropsychologist because he provided no explanation or context with his Slick checklist. Thus, the AAP was to “thoroughly and independently” evaluate the file, however, the AAP panel members disagreed as to whether the failure of the two Slick criteria was sufficient to determine the evaluation invalid. The Special Master found that the disagreement itself indicated that the NFL Parties did not satisfy their burden of showing clear and convincing evidence that the Player is not entitled to an award, and denied the appeal.

The Claims Administrator denied a Retired NFL Football Player’s Level 2 Neurocognitive Impairment claim on the grounds of missing valid neuropsychological test scores. The requirement for neuropsychological testing can be waived only for MAF diagnoses when the diagnosing physician can certify that it is medically unnecessary because the Player’s dementia is so severe. The Claims Administrator has an obligation to determine if the certification was reasonably determined, i.e., that it was reasonable to have concluded that the testing would not generate valid results. Invalid testing—whether indicating insufficient effort or malingering—does not demonstrate cognitive loss. Because the diagnosing physician offered neither an explanation of the Player’s invalid testing nor an adequate rationale for setting aside the testing entirely, the Special Master concluded that the Claims Administrator correctly determined that the Player’s claim must fail based on the absence of valid test scores to support it.

The Special Master affirmed the Claims Administrator’s denial of a Retired NFL Football Player’s Level 1.5 Neurocognitive Impairment claim based on invalid validity testing. The Settlement requires each neuropsychological examiner to complete the Slick criteria checklist to determine whether the Player’s test data is a valid reflection of his optimal level of neurocognitive functioning. Seven of the nine Slick criteria were indicated for this Player, and therefore the examiner determined that no conclusion could be drawn about the Player’s cognitive impairment level. Despite the invalid performance validity measures, the MAF Physician certified a Diagnosis of Level 1.5 Neurocognitive Impairment. The Special Master determined that the MAF Physician’s reasoning for ignoring validity testing because it may not be as accurate when the level of cognitive impairment increases did not sufficiently address the discrepancies within the results.

The Claims Administrator denied a Retired NFL Football Player’s Level 2 Neurocognitive Impairment claim based on the absence of neuropsychological testing. This requirement can only be waived when the diagnosing physician can certify that it is medically unnecessary because the Player’s dementia is so severe. The diagnosing physician’s explanation did not link his doubts about the Player’s inability to complete neuropsychological testing to the severity of his dementia, but instead cited the Player’s psychiatric issues, anger, and agitation. The Special Master found that the Player’s anger and agitation were not legitimate reasons to not attempt neuropsychological testing. The Special Master followed the AAPC’s expert medical evaluation and the entire file in concluding that the Player’s dementia was not so profound as to preclude neuropsychological testing, and determined that the Claims Administrator correctly decided that the diagnosing physician’s conclusion was not reasonably determined. The Player ultimately completed neuropsychological testing after the Claims Administrator’s denial and the neuropsychologist determined that the testing was invalid because the Player demonstrated inconsistent effort, not, as the Player argued, as support for the conclusion that the testing could not have been completed at all.

The NFL Parties and the Retired NFL Football Player appealed a Denial of a Level 2 Award. The appeals largely focus on the appropriateness of using evidence of function illustrated in the Player's social media that post-dates the Claim's submission in the Review process. That later-arriving evidence revealed a pattern of functional behavior inconsistent with the profound functional impairment the Player’s diagnosis required.

Based on this external evidence, and the absence of any attempt to isolate the role of cognitive loss as opposed to other factors, the Special Master, granting the NFL Parties’ appeal, concluded that the Player did not sufficiently demonstrate the requisite functional loss.

The Player’s appeal raised multiple issues regarding Claims Administration, but centered on the argument that validity must be fixed at the time of the Diagnosis. The Special Master found that the Settlement Agreement did not adopt a "reasonable doubt" standard for a finding of invalidity. And, regarding later-created evidence, the Special Master concluded that a plain reading of the Settlement Agreement permitted its use. In considering the social media evidence, the Special Master determined that, though the Settlement’s claims review process typically privileges evidence contemporaneous to the diagnosis, when later arriving information establishes a pattern of behavior inconsistent with the factual predicates of a diagnosis, the Claims Administrator has a duty to consider it. The Special Master concluded that due process applied to Claims Administration. But the External Evidence rules, adopted by the Claims Administrator in 2020, vindicate that interest, and no special rules for social media evidence are required. The Special Master denied the Player’s appeal, finding that the later-arriving pieces of evidence established that the testing was invalid.

The Retired NFL Football Player appealed the Claim Administrator’s denial of his two claims for Level 2 Neurocognitive Impairment: a 2017 Pre-Effective Date Claim and a 2018 Post-Effective Date Claim. The 2017 Claim’s denial results from failures of both validity and insufficient functional impairment; the 2018 Claim’s denial focuses on functional impairment and the absence of neuropsychological testing without a reasonably articulated excuse. The Claims were based on two neurological assessments completed one month apart. In affirming the denial, the Special Master found that the Player’s two examinations were conducted in ways so inconsistent with the Settlement’s Injury definitions that they provided insufficient foundations for an award. One described invalid test scores; the other relied on those very exams to excuse a failure to administer additional testing.

The Special Master affirmed the Claims Administrator’s denial of a Retired NFL Football Player’s Level 1.5 Neurocognitive Impairment claim based on invalid validity testing and insufficient information regarding functional impairments. The AAP and AAPC worked carefully through the BAP neuropsychologist’s analysis, which sought to explain away failure on two or more performance validity tests. The Settlement Agreement specifically indicates that such failures “may result in the Retired NFL Football Player’s test results being subjected to independent review, or result in a need for supplemental testing of the Retired NFL Football Player.” It was in service of that requirement that the AAP, AAPC, and the Claims Administrator assessed whether or not the Player’s testing represented the optimal level of his neurocognitive functioning and they determined that it did not.

The Special Master denied the appeal of a Retired NFL Football Player who disputed the date of Diagnosis that the Claims Administrator used in calculating his Level 2 Neurocognitive Impairment Monetary Award. The issue on appeal was whether, under FAQ 101, the underlying medical records provided reliable evidence from which the Diagnosing Physician could conclude that the Qualifying Diagnosis existed earlier than the date of his personal examination in 2021. FAQ 101 requires the Claims Administrator to strictly scrutinize in the claims review process Qualifying Diagnoses that predate a Diagnosing Physician’s examination of a Player. The Special Master found that there was no clear and convincing evidence that the earlier Diagnosis date provided a medically sound and reliable basis to conclude that the Player suffered from Level 2 Neurocognitive Impairment prior to 2021.

The Claims Administrator denied a Representative Claimant’s claim because it fell outside the Settlement Agreement’s timing rules. Section 8.3(a)(i) of the Settlement Agreement requires Claims Packages to be submitted no more than two years from the date of Diagnosis (or from the date the Settlement Class Supplemental Notice was posted on the Settlement Website, whichever is later). That deadline may be extended to four years if the Claimant can show that substantial hardship precluded compliance with the two-year deadline. The Representative Claimant did not meet the two-year deadline and did not submit a hardship consideration request. He asserted that the Claims Administrator should have considered his claim submitted when his counsel sent the Claims Administrator an email requesting an opportunity to submit the Retired NFL Football Player’s claim for review posthumously, based on his medical records. The Special Master affirmed that the Settlement’s limitation period is tolled by the submission of a Claim Package, not a request for review.

The Claims Administrator denied a Retired NFL Football Player’s Level 1.5 Neurocognitive Impairment claim on two grounds: criterion (ii) due to multiple validity concerns; and criterion (iii) because it was unclear to what extent the Player's functional decline was related to untreated major depression, headaches and insomnia rather than cognitive impairment.  According to the Program’s experts and even his own doctors, the Player’s testing did not offer valid estimates for any impairment level under the Settlement.  As to criterion (iii), the diagnosing neurologist neither provided a careful analysis of functional impairment in her original report nor did any supplemental analysis to support an appropriate finding. The Special Master determined that the Player had not offered clear and convincing evidence of error in the Claims Administrator’s findings.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Neurocognitive Impairment Monetary Award on the grounds of invalid neuropsychological testing and deference to the clinicians’ determination. At the Special Master’s request, the AAP Consultants met as a group to review this Claim and concluded that deferral to the clinicians’ determinations was not possible because their clinical judgment regarding validity was not well-reasoned. The consensus review by the AAP Consultants found the evidence overwhelming that the Player was not exerting adequate effort to perform well on testing; therefore, the test results and conclusion could not be considered valid. Accordingly, the Special Master determined that deference to the Player’s clinicians would violate the Settlement’s requirement that the Player’s diagnosis resulted from test scores that validly reflect his “optimal level of neurocognitive functioning” and granted the appeal.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Neurocognitive Impairment Monetary Award on the grounds of invalid neuropsychological testing. The Special Master acknowledged the NFL Parties’ assertions that the BAP Provider’s Slick analysis was not fully articulated and that his judgment could be set aside for lack of foundation because the Player’s test scores indicated a high likelihood of invalid performance.  However, two different AAP Consultants reviewed the validity of the Player’s neuropsychological test scores and thoroughly and independently assured themselves the criteria did not indicate invalid testing.  The Special Master deferred to their expert judgment and denied the appeal.

The Special Master denied the appeal of a Retired NFL Football Player who disputed the total number of Eligible Seasons and the date of Diagnosis that the Claims Administrator used in calculating his Monetary Award. A Player injured in a preseason game and subsequently placed on the injured reserve list for that year does not qualify for an Eligible Season under the Settlement Agreement. The date of Diagnosis is ordinarily set by the diagnosing physician, at the point when he or she "has enough information and materials, including test results, to be able to render a medically sound and reliable judgment about the Player’s condition, the way a physician normally does in his or her clinical practice." Although the Retired NFL Football Player experienced delays trying to schedule a BAP exam, no Diagnosis resulted from that exam and he did not receive a Qualifying Diagnosis until his MAF Physician diagnosed him with Alzheimer’s Disease in 2021, so there was no earlier Diagnosis date to consider.

The NFL Parties appealed the Claims Administrator’s determination that a Retired NFL Football Player was entitled to a Level 1.5 Monetary Award because the Player’s reported abilities were inconsistent with the functional impairment required of his diagnosis. For a Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment, the Player must exhibit functional impairment generally consistent with the criteria set forth in the CDR scale category 1.0 in the areas of Community Affairs, Home & Hobbies, and Personal Care. The BAP neuropsychologist analysis, which had used a third-party affidavit to supplant rather than corroborate a CDR analysis, did not support the requisite functional impairment. During the appeal, the Player submitted additional medical reports from 2021 showing mild functional impairment, but those records were not probative of whether the Player was similarly afflicted in 2018. The Special Master therefore granted the Appeal.

To be paid through the Settlement, a Claimant must meet the specific requirements outlined for any of six “Qualifying Diagnoses.” In this case, there was documentation of the Retired NFL Football Player’s progressive cognitive decline, and unrebutted evidence that he suffered from CTE at the time of his death. But those diagnoses, and their supporting medical records, did not fit into the Settlement’s prescribed boxes for the claimed Qualifying Diagnosis of Level 1.5 Neurocognitive impairment, and therefore the Special Master agreed with the Claims Administrator’s denial of the claim.