By Les Carpenter
Washington Post Staff Writer
Tuesday, June 26, 2007
For a quarter of a century John Hogan has burrowed through the pages of disability plans, looking for traps, digging for loopholes. His practice as a disability and Social Security lawyer in the Atlanta suburb of Sugar Hill, Ga., pits him against faceless bureaucracies of America's insurance industry almost every day, leaving him to wade through its muck of paperwork and regulations.
Yet asked what organization is the worst at providing disability benefits to its employees, he doesn't hesitate.
"Not that insurance companies are easy," he said one recent morning from a downtown Atlanta conference room. "But insurance companies follow [government] timelines. They are supposed to rule 45 days after a claim is made. The NFL plan completely ignores it."
Today, after months of complaints from retired players, the House Judiciary Subcommittee on Commercial and Administrative Law will hold a hearing to look into the league's pension and disability plans and the way they have been managed. Among those testifying will be former Minnesota Vikings guard Brent Boyd, who was turned down countless times despite a head injury that has left him unable to work, and Cyril Smith, the Baltimore lawyer who helped represent Hall of Fame center Mike Webster's family in a protracted battle against the plan that they finally won in 2005, three years after Webster's death.
But perhaps more significant to the retirees will be Congress's interest in their own union, the NFL Players Association, which -- as a part manager of the plan -- they believe is to blame for their ordeals.
"The way I see it, they're all tied in together," said Hart Lee Dykes, a former New England Patriots wide receiver and Hogan client who has been turned down four times despite being sent to eight doctors, three of whom declared him disabled. "The players association is supposed to be for the players, right? The players are suffering. What is the point?"
Players and their attorneys complain that claims are not only drawn out but they are often turned down with little or no explanation. This, along with the extended time for ruling on benefits requests, could be considered violations of the Employee Retirement Income Security Act, the guidelines used in most retirement and disability programs.
Hogan and Smith both say this is highly unusual for disability plans. Normally, when dealing with insurance companies or big corporations, the notice of denial will include a list of missing documents the applicant needs to be reconsidered; for instance, an MRI exam of the spine for claims of a significant back injury. The applicant would then go get the MRI and either reapply or appeal.
They point the finger for this confusion at the NFLPA in part because the players association has one representative on a two-person panel that makes the initial determination of disability. The union also chooses three members for the six-member board that decides on the fates of the players who have made it past the first panel.
"It's typical in collective bargaining for a corporation to take its cue from the union," Smith said. "When you have [NFLPA executive director Gene] Upshaw say he is going to break [former player Joe] DeLamielleure's neck, that shows his interest in the issue since DeLamielleure was a critic of the disability process and Upshaw picks the guys on the board."
Upshaw was quoted in a Philadelphia Daily News story as saying he would break DeLamielleure's neck as a response to the criticism. The union has said the comment was taken out of context.
Hogan, who has taken Dykes's case to U.S. District Court in Atlanta to get degenerative disability benefits, successfully obtained disability benefits for another player a few years ago after filing a lawsuit on the player's behalf. The player has said he does not want to be identified or details of his case to be divulged. But in his battles with the disability plan, Hogan said he is shocked that the union does not provide legal advice to the players who are trying to get benefits and wonders why the players don't have a shop steward.
The NFLPA bristles at the implication it doesn't support its members. Union spokesman Carl Francis said that any player looking for help in getting disability payments would be directed to the benefits department and would be given the proper forms to fill out. They would also be told how to file the application.
"It's ridiculous to think we are denying disability claims to our players," Francis said.
But Dykes, 40, has been fighting for disability pay for nearly a decade. He left football after his second NFL season with a broken kneecap. But as time went on, other ailments surfaced. His hips began to ache with the pain moving to his back. In the late 1990s he went to see a doctor near his Texas home who had treated him before. The doctor ruled him disabled based on his damaged knees.
When he applied for disability, he was told to see a doctor in Chicago who declared him fit to work without even asking him to take off his pants. Another doctor told him he had a stress fracture in his back but said he could do sedentary work. A physician in Seattle also said he could do sedentary work but could not say what kind of work that would be or how many hours a week he could do that work.
"Every time a doctor approves me I get denied and when I get turned down by a doctor I get denied," Dykes said in exasperation.
Finally last year he applied again after the original doctor who examined him said his back was too bad to allow him to work. The plan sent him to a neutral physician they provided. That doctor also said he was disabled. But the claim was still denied -- his fourth denial -- and after the retirement board did not provide a detailed explanation, Hogan sued.
Dykes and his attorney have been told that the claims committee is deadlocked on the issue of his disability and a member of the committee has found the medical evidence inconsistent.
"Hart was not asking for retroactive benefits and they gave him a functional capacity test where the report indicated he couldn't even do sedentary work on a daily basis," Hogan said. The fact that they were not looking for retroactive benefits should have removed all previous examinations from consideration, Hogan said, leaving two doctors both concluding on his most recent application that he is disabled.
The NFLPA concedes there are problems with the disability process. It rejects the demands of retired players who want the football pension to match baseball's, which is significantly higher. But the union's executives say disability must be improved.
Last week, the NFL and the NFLPA quietly agreed to use Social Security guidelines to determine eligibility for the NFL's disability plan. The reason, the union explained, is to streamline the process, making it simpler for a player to get his payments. If a player has been awarded Social Security disability benefits he can apply to the NFL's retirement plan and get a disability benefit.
The biggest advantage for players is that Social Security heavily relies on an applicant's primary physician in determining eligibility. This would seem to eliminate the need for players to travel around the country to be examined.
But the agreement is short on details. For instance, would all Social Security rules apply? If so, the plan and the lawyer it shares with the players association, the Groom Law Group, could be bogged down in mountains of paperwork. Also, in order to be eligible for Social Security an employee usually has to file within five years of leaving the job. Most NFL players who file often don't do so until they have been out of the league closer to 10 years, when old injuries begin to manifest themselves.
Dykes, for instance, would not have qualified for the Social Security disability benefit because he didn't apply until five years after he retired.
Even worse, Social Security has a backlog of cases. Many are taking two to three years to get through the system. The wait with Social Security might even be longer.
"Perhaps [Commissioner Roger] Goodell and Mr. Upshaw are unaware of this fact," Hogan wrote in a letter to the House committee. "As the NFLPA has long taken a stance that Social Security standards should not be applied to their plan, I am all the more skeptical that this may be some sort of ruse to take the heat off of them."