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Labor & Employment — Football Player Wins ERISA Claim for CTE Disability

Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (Lawyers Weekly No. 001-150-17, 13 pp.) (Duncan, J.) No. 16-1730, June 23, 2017; USDC at Baltimore, Md. (Garbis, J.) 4th Cir.

Holding: In denying disability benefits to professional football player Jesse Solomon, who sustained more than 69,000 full-speed contact hits during his nine-year NFL career, the plan administrator for an NFL retirement and disability plan failed to follow a reasoned process, explain its determination, or even acknowledge new and uncontradicted evidence, including the plan’s own expert’s views; the 4th Circuit affirms a decision that the plan administrator abused its discretion when it arbitrarily denied benefits for Solomon’s chronic traumatic encephalopathy.

After the plan administrator determined that Solomon’s disability-onset date rendered him ineligible for the more generous benefits he sought for beneficiaries determined to be “Football Degenerative” within 15 years of retirement from football, Solomon sued under ERISA § 502(a)(1)(B). The district court determined he was entitled to the benefits he claimed and ordered the plan to provide them.

On appeal, the plan argues the district court erred in holding that the Social Security Administration determination of disability onset date bound the board, and also that the district court erred in holding that the board abused its discretion when it concluded that Solomon was only entitled to the lesser “Inactive” benefits. Because we agree the board abused its discretion by classifying Solomon as inactive, we do not reach the question of whether the SSA determination binds the board.

The board’s 2009 denial of Solomon’s first application could not categorically foreclose the possibility that Solomon was totally permanently disabled (TPD) before Nov. 19, 2009, because Solomon’s first application concerned only orthopedic ailments. The board’s unfavorable determination as to that application has no bearing whatsoever on when Solomon became TPD due to the wholly separate and distinct cognitive impairments asserted in his 2010 application.

The board also failed to recognize or discuss the new evidence concerning cognitive impairments that Solomon submitted with his 2010 application, summarily dismissing the medical evidence by erroneously stating that the medical records submitted with that appeal were submitted together with Solomon’s prior claim and appeal. Even if that were true, the plan’s serial-application rule does not permit the board to ignore pertinent medical records it reviewed in a previous application. We also reject the plan’s post-hoc argument that Solomon had to submit contemporaneous medical evidence predating the March 2010 cutoff date. Solomon’s medical records postdating the March 2010 cutoff date are relevant to the extent they indicate that he became TPD before then.

The board provided no justification for denying Solomon Football Degenerative benefits, let alone substantial evidence for doing so. Solomon has been unemployed and unable to work since 2007, and the board’s own neutral neurologist noted in February 2011 that Solomon’s brain injuries had worsened over a period of five to 10 years.

Judgment affirmed.

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