Law360, by Ryan Boysen
Claiming he’d “never seen anything like it,” an attorney for an injured former NFL player told a California federal court Thursday that the league’s disability program flouted Ninth Circuit precedent and a federal judge’s earlier directive when it denied his client’s request for benefits in a shadowy “sham” process.
Speaking at a hearing on dueling summary judgment motions before U.S. Magistrate Judge Jacqueline Scott Corley, attorney Terrence J. Coleman of Pillsbury & Coleman LLP said the NFL’s disability plan totally ignored the spirit of a 2018 order instructing the plan to review its initial denial of his client Charles Dimry’s request for full disability benefits.
Coleman said the plan also ignored Ninth Circuit precedent that should have allowed Dimry to weigh in on that process.
“The remand went off the rails from the get-go,” Coleman said.
A 2018 order by U.S. District Judge James Donato found the plan had abused its discretion when it first denied Dimry’s request in 2015, because it ignored two lengthy reports by Dimry’s own doctors in favor of two “plan neutral physicians” who get paid more than $100,000 a year by the NFL.
Those doctors “consequently had a financial incentive to give opinions favorable to” the NFL, Judge Donato wrote, in a striking rebuke of a process that’s often criticized by former players for being stacked against them. When Dimry’s claim reached the Bert Bell/Pete Rozelle NFL Player Retirement Plan on remand, the plan asked its own medical director, Dr. Allen Jackson, to evaluate the claim. Jackson is paid roughly $233,000 per year by the NFL and trains plan doctors like the ones Judge Donato said are financially conflicted, according to allegations
in Dimry’s court filings.
Citing Jackson’s determination that Dimry’s level of pain is impossible to quantify and his spinal injuries don’t appear to prevent him from working, the plan again denied his request for full disability benefits.
Dimry claims he was never contacted during that process and wasn’t able to provide any of his own information to contradict Jackson’s findings, violating the Ninth Circuit’s directive in its 1997 ruling in Booton v. Lockheed Medical Benefits Plan that disability claimants are entitled to “meaningful dialogue” with their plan when a claim is being considered.
Citing a different Ninth Circuit decision, the 2011 opinion in Salomaa v. Honda Long Term Disability Plan, Judge Corley made the same point at Thursday’s Zoom hearing.
The Ninth Circuit “said you have to give the claimant an opportunity to respond, and that wasn’t done here. Mr. Dimry wasn’t even aware of Dr. Jackson’s report,” Judge Corley said.
Michael Junk of Groom Law Group Chtd., which represents the plan, reiterated earlier arguments that Coleman and Dimry’s “silence following remand” was a “strategic decision or oversight on their part.”
Later on in the hearing, however, Coleman said he had no idea the process was even playing out until he saw the second denial.
“What was shocking to me was that all of this transpired behind the scenes,” Coleman said. “I’ve never seen anything like it in all my years of practice.”
“They fault us and say ‘you should have asked’ — I didn’t think of asking,” Coleman added, raising his voice.
Judge Corley also questioned Junk about why Jackson had been allowed to evaluate the claim by himself, given the content of Judge Donato’s 2018 order.
“He certainly doesn’t seem to be any more independent” than the two doctors Judge Donato referenced in that order, she said.
Junk said the plan believes it has “additional evidence that disproves the premise of Judge Donato’s holding” and said the plan’s “neutral physicians are not conflicted or biased.”
“Dr. Jackson is, in my perspective, equally unbiased,” Junk said.
Judge Corley said she wasn’t even sure whether Junk can make that argument, however, because Judge Donato’s 2018 order was never appealed.
Coleman said the plan cannot.
“If they felt that was the case, it was incumbent upon them to appeal to the Ninth Circuit, which they did not do,” Coleman said. “Instead what transpired was a flaunting of Judge Donato’s” order, “because they sent this to a doctor who is more tied to the plan than the other two.”
Judge Corley concluded the hearing after roughly half an hour, saying she’d take both sides’ comments into consideration when ruling on their motions for summary judgment.
Dimry is seeking a declaration that he’s entitled to full disability benefits from the plan, as well as unspecified damages and attorney fees, while the plan is seeking a denial of that request and a quick end to the lawsuit.
Dimry filed the current suit last year, after receiving the second denial.
A 12-year NFL veteran who played cornerback for the San Diego Chargers, Atlanta Falcons, Denver Broncos and Tampa Bay Buccaneers, Dimry retired from professional football in 2000 and worked as a high school and college coach before becoming an independent speed and strength coach.
In court filings, Dimry said he began to experience numbness and pain along his left arm in 2009, and later underwent two surgeries to repair damage to the top of his spine. Dimry stopped working in 2012 as his spinerelated pain became worse and worse, he said.
His primary doctor concluded he was unable to work, and in 2014 Dimry applied for total disability benefits from the plan, but was denied after a plan-appointed doctor, Steven Meier, found that he could still perform light work. An appeal was denied after another plan-appointed doctor, James Chen, found that he could do “desk or sedentary work.”
In 2016 Dimry filed suit under the Employee Retirement Income Security Act in 2016, alleging the plan had blindly accepted the diagnoses of the two doctors it paid hundreds of thousands of dollars without conducting its own investigation.
That suit eventually resulted in Judge Donato’s 2018 order finding the retirement board abused its discretion because it has an “unreasonable bias in favor of the plan-selected physicians.”
Counsel for the parties did not respond Thursday to requests for comment.
Dimry is represented by Terrence J. Coleman and Azin Jalali of Pillsbury & Coleman LLP.
The Bert Bell/Pete Rozelle NFL Player Retirement Plan and Retirement Board are represented by Michael L. Junk of Groom Law Group Chtd. and Eugene Y. Mar of Farella Braun & Martel LLP.
The case is Dimry v. The NFL Player Supplemental Disability Plan et al., case number 3:19-cv-05360, in the U.S. District Court for the Northern District of California.
—Additional reporting by Adam Lidgett, Kevin Stawicki and Zachary Zagger. Editing by Abbie Sarfo.