A former NFL player is suing the league’s retirement plan saying it repeatedly denied his requests for increased disability despite ample evidence of his inability to work due to neck injuries suffered while playing. Among the allegations outlined in the lawsuit is that key to Charles Dimry’s denial of benefits, and possibly other players’, is how the NFL plan “uniformly defers to its ‘neutral’ physicians” while ignoring the findings of dissenting doctors.
If the NFL pension plan denying benefits sounds familiar, it’s because it remains an ongoing issue, one intertwined with the concussion lawsuit and settlement. The class action concussion lawsuit has among its roots denying benefits to Mike Webster’s family. More recently, Kyle Turley outlined how a “neutral” physician generated a report on him filled with errors.
The lawsuit was filed Wednesday in federal court by Dimry against the Bert Bell and Pete Rozelle NFL Player Retirement Plan and the NFL Supplemental Disability Plan. It asks for recovery of the benefits he hasn’t been paid, copies of documents the plan denied him, as well as equitable relief.
According to his lawsuit, Dimry suffered two major neck injuries while playing, first in 1997 when his head was struck from the side while making a tackle, and again two years later on a similar play. He retired after 12 journeyman seasons, his last in 1999, and had his first cervical fusion surgery in 2000.
In 2008, he applied for line-of-duty disability benefits, which are awarded for “substantial disablement arising out of NFL football activities.” His request was approved, the lawsuit says, but the pain grew worse, spreading beyond his neck and forcing him to stop working. He “began to experience progressively worse back pain and numbness of the left arm, forearm, and fingers” as well as knee pain, the lawsuit says. Dimry was “unable to stand, sit for extended periods, or lift.” He had more surgery and eventually stopped working entirely as training director at Strategic Sports Venture.
On June 14, 2011, Dimry applied for Total and Permanent benefits, also known as T&P benefits, a separate payment for when a player has become “substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit.” It was denied, as was his appeal.
On Dec. 10, 2014, Dimry applied a second time, including “additional and overwhelming evidence establishing his T&P disability including supportive medical reports from no less than six doctors and a functional capacity report,” according to the lawsuit. This too was denied, based on a report from a retirement plan physician, the lawsuit says. Dimry appealed unsuccessfully.
But the plan did schedule a “neutral physical medical examination” in San Francisco with a plan physician, Dr. James Chen.
Pursuant to a uniform practice employed in all NFL disability claims, the Plan did not provide Dr. Chen with a definition of T&P disability, nor did it provide relevant vocational information. Dr. Chen, like all other Plan physicians, has no vocational training. In spite of these material omissions, the Plan uniformly defers to its “neutral” physicians rather than exercising its own discretion as required by the Plan’s written terms and without regard to the evaluations, opinions and conclusions of Plaintiff’s treating physicians, all of whom fully support Plaintiff’s disability.
With no relative or vocational information or training, Dr. Chen improperly provided his opinion that Plaintiff “is not totally disabled ... he could do desk or sedentary work.” The Plan adopted Dr. Chen’s untrained opinion wholesale without exercising any discretion at all, and in wholesale disregard of the evaluations, opinions and conclusions of Plaintiff’s treating physicians.
The Plan’s actions are contrary to the written terms of the Plan, and its conclusions have no reliable evidentiary support. In affirming its prior denial of benefits, the Plan ignored the definition of T&P disability. The Plan’s actions are contrary to the reports and assessments of the doctors who have evaluated and treated Plaintiff. The Plan’s determination denied Plaintiff due process of law.
On Dec. 2, 2015, Dimry’s denial was upheld again.
The lawsuit notes that the plan also denied Dimry documents he requested, such as training manuals, regulations, and internal plan communications, during one of his appeals. The lawsuit says the plan was required to turn these over under the Employee Retirement Income Security Act.
The full lawsuit is below or you can read it here.