Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan

Filing 28

REPORT AND RECOMMENDATIONS re 16 MOTION for Summary Judgment filed by Gregory Hill, 17 MOTION for Judgment on the Administrative Record and Incorporated Memorandum in Support re 13 Sealed Document, 14 Sealed Document filed by Bert Bell/Pete Rozelle NFL Player Retirement Plan. Within fourteen (14) days after service of the magistrate judges report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. § 636(b)(1)(c). Signed by Magistrate Judge Don D. Bush on 8/26/14. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
GREGORY HILL
Plaintiff,
VS.
BERT BELL/PETE ROZELLE
NFL PLAYER RETIREMENT PLAN
Defendant.

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Case No. 4:13cv74

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court are cross-motions for judgment in a dispute concerning disability
benefits sought by Gregory Hill, a retired National Football League player, from the Bert Bell/Pete
Rozelle NFL Player Retirement Plan (the “Plan”), an employee benefit plan governed by the
Employee Retirement Income Security Act of 1974 (“ERISA”), codified as amended at 29 U.S.C.
§§ 1001 et seq. Through the Plan, Hill receives Total and Permanent (“T&P”) disability benefits at
the “Inactive” level. However, he claims that he should be classified in the “Football Degenerative”
category, which would provide him with greater monthly benefits. Therefore, Hill seeks judicial
review of the Plan’s decision to award benefits to him at the lower level. See Dkt. 1. The Plan’s
T&P disability benefits are governed by Article 5 of the Plan.
Hill was a running back and played professional football for six seasons in the National
Football League. As such, he was covered for pension and disability benefits through the 2009 Bert
Bell/Pete Rozelle Player Retirement Plan. Hill met the definition of a Vested Inactive Player under

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the Plan. See 1.36 and 1.37 of Article One of the Plan at GH 332.1
In 2010, Hill was awarded Social Security Disability benefits retroactive to November 2008.
See GH 205. This award by the Commissioner (SSA) was based on state agency doctors who
reviewed the medical evidence submitted. In his Social Security Application, Hill stated he was
disabled due to memory problems, blackouts, balance, headaches, joint problems, fatigue, sleep and
vision problems. See GH 206.
After the award by the SSA, Hill applied for disability benefits under the Plan. A Vested
Inactive Player may obtain disability benefits under the Plan if he is totally and permanently (T&P)
disabled as defined in Section 5.2 of the Plan. Under Section 5.2 of the Plan, a player is deemed to
meet the T&P requirement if the Committee finds that he has become totally disabled to the extent
that he is substantially prevented from or substantially unable to engage in any occupation or
employment for remuneration or profit. However, if a player is receiving Social Security Disability
benefits he is deemed to meet the T&P disability requirement.2
Since Hill was deemed to be T&P disabled under the Plan, he could be eligible for two
categories of disability: Football Degenerative or Vested Inactive. For Football Degenerative, the
disabilities must arise out of League Football activities and result in a T&P disability. In the Vested

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The parties filed under seal an Agreed Administrative Record in this case. See Dkts.
12 – 14. It is referred to herein as “GH [#],” in accordance with the parties’ Bates numbering.
2

The Social Security Administration defines disability as a medically determinable
physical or mental impairment lasting at least twelve months that prevents a claimant from
engaging in any substantial gainful activity. See McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.
1999). Substantial gainful activity for Social Security purposes does not necessarily preclude
earning any income. See Masey v. Astrue. 2012 WL6177097 (N.D. Tex. 2012).

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Inactive category, the T&P disability arises from other than League Football activities. See GH 343.3
In his injury summary submitted with his application to the Plan, Hill stated he believed he
qualified for benefits based on the following injuries: lumbar and cervical spine, bilateral knees ,hips,
elbows, hands/wrists/fingers ,ankles and feet. See GH 203. At a meeting of the Disability Initial
Claims Committee, Hill was granted Inactive T&P benefits, since, under the Plan, he qualified due
to the award of Social Security Disability benefits. Consideration of whether he qualified for the
more beneficial Football Degenerative benefits was tabled pending a medical evaluation. See GH
212. The Plan provides that any person seeking T&P under the Football Degenerative category and
awarded Social Security Disability benefits may also be required to submit to an independent
medical exam. See GH 345.
Hill was referred to Dr. Perry for an evaluation. Dr. Perry notes the same impairments that
Hill claimed in his application. On the first page of the report, he checks that Hill’s impairments as
to his cervical spine, lumbar spine and bilateral as to ankles and hips resulted from injuries from
football and indicates that such impairments were expected to persist. See GH 223. However, on
the second page of the report, Dr. Perry notes that Hill is not totally disabled to the extent that he is
substantially unable to engage in any occupation for remuneration or profit and restricts Hill to
sedentary employment. See GH 224. In his discussion section, Dr. Perry questions the validity of
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Although the definition of arising out of League Football activities is not defined in
Section 5 of the Plan, both parties appear to acknowledge that the definition in Section 6.4(c)
dealing with line of duty disability applies. Section 6.4(c) provides that a disablement arising out
of other employment, athletic activities for recreational purposes or disablement for an injury or
illness that arises out of other than League Football activities does not arise out of League
Football activities.

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Hill’s reaction to the exam and states that he is not totally and permanently disabled as a result of
orthopedic injuries from playing professional football. See GH 226.
Hill contends that there was no need to get Dr. Perry’s opinion as to T&P because the Plan
document forecloses the question. Dr. Perry goes on to state that Hill could be permanently disabled
but only for a neurologic or psychiatric component.
In January 2011, the Disability Initial Claims Committee met and denied Hill’s request for
Football Degenerative citing Sections 5.1(c) and 5.5(b) of the Plan. See GH 231.4 Hill was notified
by letter on January 7, 2011 that he was only qualified for Vested Inactive Benefits. See GH 232.
The letter states that the Committee reviewed the report of Dr. Perry and other medical records in
support of his application. The Committee noted that it did not find Hill’s disabling condition to
arise out of football activities.
Hill then went to see another orthopedist, Dr. Maier. It appears this was a self-referral. Dr.
Maier opines that Hill’s present permanent disability is from football related injuries. See GH 245.
In March 2011, Hill consulted with a Dr. Shukla who did an EMG and reported the findings as
abnormal. See GH 250.
On April 12, 2011, Hill appealed the Board’s decision, noting quite succinctly that, since he
was disabled under the terms of the Plan, the only issue for Dr. Perry was whether his injuries were

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Hill takes issue with the notation “reclassification” contained in the Board’s minutes.
He claims that this puts a different burden of proof on him. However, it is clear from the
subsequent correspondence that he was not reclassified, but merely that there was a final
determination of his classification.

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the result of football league activities. See GH 256.5 Hill’s letter must have caused some concern
for the Committee, because, on May 11, 2011, his appeal was tabled for additional information. See
GH 262.
The Plan then contacted a Robert Gilbert M.D. for an opinion as to whether there was a
neurological “disablement” that would prevent Hill from substantially being able to engage in any
occupation for remuneration or profit. See GH 264. Dr. Gilbert, after a review of the records, stated
that he suspected malingering and stated there was no total neurological disability related to football
activities. See GH 265. On August 3, 2011, the Board denied Hill’s appeal as to Football
Degenerative for failure to meet the requirements of Section 5.1(c) of the Plan.
By letter dated August 15, 2011, the Board notified Hill of its decision. The Board informed
Hill that it based its conclusion on three grounds. First, it relied on Dr. Gilbert’s assessment.
Second, it relied on Dr. Perry’s assessment that Hill’s orthopedic impairments did not rise to a total
and permanent disability. Third, it found that Dr. Maier’s report was consistent with Dr. Perry’s
report in that Hill’s impairments were attributable to orthopedic injuries, but even Dr. Maier did not
find him totally and permanently disabled. See GH 272. The Board goes on to state that Hill has
a combination of impairments but that psychiatric predominate and do not meet the requirement of
the Plan for Football Degenerative, but nonetheless would be excluded by Section 5.1(h) of the Plan
which restricts such psychiatric awards for the most part to either Active Non-Football or Inactive.

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The Plan refers to disabilities not injuries. It is not clear from the record as to what
impairments the SSA found to be disabling. Neither does it appear the Committee had an
understanding of the impairments that led to the SSA disability award.
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Once Hill was deemed to be T&P disabled because he was drawing SSA disability, whether
he is substantially prevented from or unable to engage in work for profit or remuneration, as called
for in the Plan documents, is immaterial. The Plan in effect has adopted an alternative way in which
a player may be T&P disabled. Therefore, the only question for the Board is whether his SSA
disability arises out of League Football activities. Dr. Perry opines that he can work but that issue
is foreclosed by the Board’s Plan. For purposes of the Plan, he is disabled.6
Thereafter, Hill furnished a statement from Dr. Maier which, in effect, tells the Board to read
his report and that he disagrees with the way the Board read it. According to Dr. Maier, Hill is T&P
disabled as football related. See GH 275. Thereafter, in November 2011, the Board tables the appeal
for an orthopedic exam with Dr. David Apple. See GH 281. Dr. Apple examines Hill and, like
Perry, checks the box for a number of impairments that are football injuries and permanent. See GH
289. As did Dr. Perry, Dr. Apple states that Hill is not totally and permanently disabled to the extent
that he is substantially unable to engage in any occupation for remuneration or profit. He also states
that Hill’s pain is out of proportion to the objective findings and that he is the first player he has seen
who has complained of so much pain that he cannot undress either his upper or lower extremities.
See GH 290.

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Part of the problem in this case is that the Plan simply incorporates a lesser standard for
T&P disability in regard to receipt of Social Security benefits than it otherwise require if Hill was
not drawing Social Security. If Hill was not receiving Social Security benefits, the Board would
have scored a touchdown on the opening play and none of the above discussion would have been
necessary, at least in the Court’s opinion.

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In March 2012, the Board notifies Hill that his appeal for classification for Football
Degenerative is denied. The Board cites Dr. Apple’s report (as well as Dr. Perry’s) that Hill was not
T&P disabled based on his orthopedic impairments. As such, the Board concludes that there is no
evidence that his T&P disability is related to League Football Activities. The Board also gives its
reasons for crediting the reports of Gilbert, Apple and Perry. See GH 303.
As noted above, Article 5 of the Plan does not include a definition of “arises out of League
football activities.” See GH 343-350. However, Plan § 6.4(c), relating to the “Line–of–Duty
Disability” benefit, contains the following definition:
“Arising out of League football activities” means a disablement arising out of any
League pre-season, regular-season, or post-season game, or any combination
thereof, or out of League football activity supervised by an Employer, including
all required or directed activities. “Arising out of League football activities” does
not include, without limitation, any disablement resulting from other employment,
or athletic activity for recreational purposes, nor does it include a disablement that
would not qualify for benefits but for an injury (or injuries) or illness that arises
out of other than League football activities.
GH 352.
In cases concerning T&P disability benefits, the definition taken from the “Line–of–Duty”
section of the Plan has been applied by other courts. See, e.g., Washington v. Bert Bell/Pete Rozelle
NFL Ret. Plan, 504 F.3d 818, 821 n. 4 (9th Cir. 2007); see also Johnson v. American United Life Ins.
Co., 716 F.3d 813, 821 (4th Cir. 2013)(“[A]mbiguous language in one portion of an ERISA plan
may well be clarified by reference to unambiguous language in another portion of the plan.”).
The Plan here is an employee, multi-employer welfare benefit Plan governed by the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1002(3)(2)(A), 1002(37)(A),

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and the Labor Management Relations Act (“LMRA”), 29 U.S.C. §§ 141 et seq., also known as the
“Taft–Hartley Act.” As required by statute, the Plan is jointly administered by employee (NFL
players) and employer (NFL club owners) representatives. 29 U.S.C. § 186(c)(5)(B). Three player
representatives are appointed by the NFL Players Association (“NFLPA”) and three club ownership
representatives are appointed by the NFL Management Committee (“NFLMC”) (collectively the
“Retirement Board” or the “Board”). The Retirement Board, which meets quarterly, is the “named
fiduciary” of the Plan and is responsible for administering the Plan. The Plan grants the Board “full
and absolute discretion, authority and power to interpret” the Plan and decide claims for benefits.
GH 355.
Under the Plan, the Disability Committee or the Board had absolute discretion to determine
whether Hill was entitled to benefits. See GH 359 at § 8.9. If the Plan gives the administrator
discretionary authority to determine eligibility for benefits or to construe the Plan’s terms, the Court
must review a decision to deny benefits only for abuse of discretion. Atkins v. Bert Bell/Pete Rozelle
NFL Player Ret. Plan, 694 F.3d 557, 566 (5th Cir. 2012).
“In the ERISA context, “[a]buse of discretion review is synonymous with arbitrary and
capricious review.” Cooper v. Hewlett-Packard Co., 592 F.3d 645, 652 (5th Cir. 2009). This
standard requires only that substantial evidence supports the Plan fiduciary’s decision. Ellis v.
Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004). Substantial evidence is “more
than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Deters v. Sec’y of Health, Educ. &
Welfare, 789 F.2d 1181, 1185 (5th Cir.1986)). “A decision is arbitrary only if made without a

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rational connection between the known facts and the decision or between the found facts and the
evidence.” Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009) (citing Meditrust
Fin. Servs. Corp., 168 F.3d at 215). Moreover, this Court’s “review of the administrator’s decision
need not be particularly complex or technical; it need only assure that the administrator’s decision
fall[s] somewhere on a continuum of reasonableness—even if on the low end.” Corry v. Liberty Life
Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc.,
188 F.3d 287, 297 (5th Cir.1999) (en banc)). See also Atkins v. Bert Bell/Pete Rozelle NFL Player
Ret. Plan, 694 F.3d 557, 566 (5th Cir. 2012).
As noted, the Plan affords Hill two avenues of eligibility for T&P disability. Since Hill’s
Social Security disability award is valid, the next step in the analysis is whether this established
disability arose out of football activities. This matter was not addressed by the Social Security
Administration. As noted and discussed above, § 6.4(c) defines “[a]rising out of League football
activities” as “a disablement arising out of any League pre-season, regular-season, or post-season
game, or any combination thereof, or out of League football activity supervised by the Employer,
including all required or directed activities.” GH 352. That provision also contains three exclusions,
under which a disability will not be found to arise out of League football activities. Id. The first
two define “arising out of League football activities” to exclude “any disablement resulting from
other employment” or from “athletic activity for recreational purposes...” Id. Those two exclusions
are not pertinent here.
The third exception states that arising out of League football activities “does not include ...
a disablement that would not qualify for benefits but for an injury (or injuries) or illness that arises

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out of other than League football activities.” Id. This exclusion is pertinent here given the record
before the Court.
The Court is cognizant of the fact that many physicians who have examined Hill use terms
such as malingering, over exaggeration and lack of credibility, and comment on numerous essentially
normal MRIs and X-rays. Other physicians have determined that his injuries are football- related
and that he does have ongoing problems. In Dr. Apple’s report, he stated as follows: “I do not know
of any orthopedic problem which causes the generalized pain that the patient is experiencing. There
is not any evidence of muscle atrophy and only minimal changes on x-ray and on no pain
medications the reliability of the exam is questioned.” GH 295. Although Apple acknowledges an
impairment secondary to pain, he states that it does not appear to be related to any orthopedic
problem. Assuming that there is a psychiatric disability under the facts of the case, Hill would still
be in the Vested Inactive category.
Before the Board were numerous medical records of examinations, some conflicting with one
another. Also before the Board were numerous radiographic studies which were essentially normal.
The Board primarily relied on the opinions of three doctors who either examined Hill and/or also
reviewed many, if not all, the records before the Board.
The Court finds that the Board did not abuse its discretion in denying Hill Football
Degenerative benefits. Perry’s and Apple’s opinions went beyond the check the box notations
contained in the forms. Acknowledging that Hill had injuries related to football is not in and of itself
a finding of disability. The narratives attached to their reports indicate the reasoning that he was not
T&P disabled due to League football activities. The decision of the Board is supported by

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substantial evidence.
As to Hill’s remaining issues, the Court finds that the Disability Initial Claims Committee
did not treat Hill’s claim as a reclassification claim. It is clear from reading the Board minutes as
well as correspondence to Hill that the claim was never a reclassification claim as contemplated by
Section 5.5(b) of the Plan. The section contemplates some changed circumstances to qualify for a
reclassification and then only by evidence which is clear and convincing. Hill does not argue that
there were any changed circumstances and further never sought reclassification. The Board, all
along, tabled either its initial decision or its final decision pending receipt of additional evidence.
Of note is the fact that both the Retirement Board and the DICC had the discretion to initially
classify or reclassify a player’s category of disability. Hill points out several instances where the
Board used the term “reclassification.” For instance, the Board at its January 6, 2011 meeting
specifically refers to the fact that Hill has failed to satisfy the requirements of Section 5.1(c) and for
failure to meet the requirements of Section 5.5(b). Thus, the reading gleaned from this is that he
cannot show Football Degenerative and he fails to satisfy the higher standard of reclassification. As
noted, the letter to Hill which denies him Football Degenerative only bases the decision on Section
5.1(c).
At a later Board meeting in August 2011, the Board denies reclassification for failure to meet
the requirements of Section 5.1. Although the Board’s letter refers to Appeal for Reclassification,
the basis of the letter again only refers to the Initial determination under 5.1(c). There is no mention
of 5.5(b). See GH 269.

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In reviewing the entire record, it is clear to the Court that the use of the term reclassification
describes Hill’s appeal of the initial determination not a request for a reclassification because of
changed circumstances. Hill’s attempt to parse out some error in the Board’s actions fails for the
fact that he couldn’t even satisfy the “lower” burden of 5.1(c). Moreover, there are no changed
circumstances he can demonstrate. His physical condition was the same as when he applied for
benefits as when the last determination was made – no pain medication, essentially benign
radiographic studies, no muscle atrophy, and extreme pain which limits his ability to even move, for
which no orthopedic explanation can be given.
Contrary to Hill’s assertion, the Board did not deny his appeal by asserting that his disability
was primarily due to psychiatric impairments. The Board finds that he has a combination of different
impairments for which psychiatric issues predominate. The Board need not choose a disability. He
is already disabled. The only question is whether it is Football Degenerative, and the Board has
answered that question in the negative. Further, the Court in reviewing the record determines that
the burden of proof was never changed based on the reasoning noted above. The Board substantially
complied with the Plan’s terms, gave Hill more than a fair consideration of his case, and did not
abuse its discretion.
RECOMMENDATION
For these reasons, the Court recommends that Defendant’s Motion for Judgment on the
Administrative Record (Dkt. 17) be GRANTED, that Plaintiff’s Motion for Summary Judgment
(Dkt. 16) be DENIED, that Plaintiff take nothing by his claims appealing the denial of Football
Degenerative benefits, and that this matter be dismissed with prejudice.

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Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(c).
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made, and failure to timely file written
objections to any proposed findings, conclusions, and recommendations contained in this report shall
bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
by the district court, except on grounds of plain error, provided that the party has been served with

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notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
from ten to fourteen days).

SIGNED this 26th day of August, 2014.
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____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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