In May of 2017, we discussed the case of Jesse Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, where the district court held that the NFL Plan was wrong and unreasonable when it denied Total and Permanent Disability (“TPD”) benefits to Jesse Solomon, a nine year veteran of the NFL with traumatic brain injury. Since that time, the NFL Plan appealed the decision to the Fourth Circuit Court of Appeals, which upheld the district court’s decision that the NFL Plan acted arbitrarily and capriciously.
As discussed previously, during Solomon’s football career, he sustained more than 69,000 full-speed contact hits. As a result, he experienced symptoms associated with traumatic brain injury and it was theorized that his symptoms were consistent with chronic traumatic encephalopathy (CTE), a degenerative brain condition caused by repeated head trauma which currently can only be diagnosed with an autopsy. As a result, Solomon suffered from headaches, cognitive deficiencies, depression and anxiety. However, his traumatic brain injury went undiagnosed for many years. Solomon also suffered numerous knee injuries requiring multiple operations, resulting in chronic knee pain which the doctors expect to worsen over time. Ultimately, Solomon was forced to resign from his post-NFL career as a high school teacher and football coach in 2007 and applied for TPD benefits under the NFL ERISA governed Plan.
Solomon first applied for Inactive A TPD benefits under the Plan, asserting that football-related orthopedic injuries rendered him TPD. Under the NFL Plan, a former player may receive Inactive A TPD benefits if they become TPD within 15 years of their last credited season in the NFL. They may receive Inactive B TPD thereafter. Inactive TPD benefits are substantially lower than Inactive A TPD benefits. Although Solomon did not seek benefits for his traumatic brain injury in this first application, the medical records he submitted contained evidence of brain injuries. The NFL Plan denied Solomon’s application, finding that he was not Inactive A TPD. Solomon appealed that decision to the Board, which affirmed the denial. The Plan contained a provision which indicated that a claimant can reapply for TPD benefits, but not for 12 months following a final denial of benefits and during that time the claimant cannot be considered TPD. 12 months after his first application (which was now over 15 years after his last credited season in the NFL), Solomon filed another application for Inactive A TPD benefits. In contrast to his first application, Solomon’s subsequent application was based on his football-related traumatic brain injury and cognitive impairments.
Solomon also applied for Social Security disability benefits (“SSDI”) and was determined to be unable to maintain gainful employment since 2008 (less than 15 years after his last credited season in the NFL). The NFL Plan requires deference to a medical finding of disability by the Social Security Administration (SSA). Despite this, the NFL Plan determined that Solomon was not eligible for Inactive A TPD benefits and approved Inactive B TPD, alleging that Solomon’s second application was more than 15 years since his last credited season in the NFL (due to the fact that the Plan prohibits a finding of TPD for one year after a previous denial) and asserting that while the NFL Plan must defer to an SSA medical determination, it was not required to defer to an SSA determination as to onset date of a disability. The NFL alleged that Solomon’s new evidence did not establish a TPD in 2008.
The NFL’s arguments were rejected by the district court. On appeal, the Fourth Circuit upheld the lower court’s ruling against the NFL Plan, explaining that the 12 month new application limit did not apply to Solomon because Solomon’s first application solely involved orthopedic issues and his subsequent application involved traumatic brain injury. The appeals court reasoned that nothing in the Plan prohibited a new application for TPD for a different disabling condition. The appeals court also found that Solomon presented substantial evidence that his TPD began in 2008, all of which the NFL Plan ignored.