Posted: Wed January 29, 2014 10:57AM; Updated: Wed January 29, 2014 12:06PM
Michael Rosenberg
Michael Rosenberg>VIEWPOINT

'Permanently disabled', Harrison fighting for benefits NFL took away

Dwight Harrison fighting for benefits NFL took away (cont.)

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Former NFL wideout Dwight Harrison is fighting for medical disability benefits he was granted many years ago by the league but were subsequently taken away when he asked for more.
Dwight Harrison played 10 years in the NFL and now suffers from dementia, but he has been repeatedly denied benefits from the NFL that he feels he deserves.
AP

Dwight Harrison played in the NFL for 10 years. Recently, he was terrified of a phone call.

"I was up all night," he told me, "scared to death. At times, I can't even speak. I'm afraid to talk to you."

I am not in the habit of scaring people to death. But Harrison worried he would say the wrong thing. He worried I wouldn't believe him, which is understandable. His story is so absurd, so unfair, that it sounds like a sick joke. But it is not a joke. It is Harrison's life. And here is what happened:

Harrison requested higher disability pay from his NFL retirement plan.

The plan's trustees said no ... and took away his entire pension.

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Then they charged him for legal fees.

Now Harrison lives alone in Beaumont, Texas, in what he calls "a little FEMA house," because a hurricane wiped out his other one. He is 65. He is on Medicaid now. He is still fighting for the money, and the acknowledgment that he deserves it. But it is not a fair fight. After too many hits to the head, his brain flickers on and off.

"My situation ... sometimes it's bright, sometimes it's dim, and sometimes the light don't come on at all," said Harrison, who in his 10-year career from 1971 to '80 played for the Oakland Raiders, Buffalo Bills, Baltimore Colts and Denver Broncos. "I can't sometimes keep my thoughts. Forgive me, please."

The night before our first talk a few months ago, Harrison's light went on, and he wanted to take advantage of it. He grabbed a recorder that he keeps on a small table next to his old standard-definition television and spoke his thoughts. The next day, a few minutes after he mustered the courage to answer my call, he placed his recorder next to the phone and pushed PLAY.

*****

We will let the trustees of the Bert Bell/Pete Rozelle NFL Player Retirement Plan begin this story. The year was 1993.

There are six trustees on the board at any given time: Three that represent owners, and three that ostensibly represent players. Former players have long grumbled that the board is more interested in protecting owners and the union than helping former players.

Former Bears star Dave Duerson was appointed by the union but publicly doubted that former players were suffering because of football hits. Duerson later committed suicide and was found to have chronic traumatic encephalopathy (CTE), a brain disease commonly linked to concussions. His tragic story seems to epitomize the NFL's concussion problem: Denial for too long, until it was too late.

But in 1993, the trustees examined Harrison's medical records and determined he was "totally and permanently disabled."

We repeat: The trustees said Harrison was "totally and permanently disabled."

They awarded him a $1,729 monthly disability benefit. They also determined that Harrison had been disabled since Jan. 1, 1984, and awarded him a lump sum of $184,756 in retroactive benefits.

Still, Harrison felt he deserved more. He had good reasons to believe that. The retirement plan featured four tiers of "total and permanent disability" benefits, depending mostly on how a player was disabled. The trustees put him on the lowest tier. They determined that, while Harrison clearly had serious medical problems, they did not result from playing in the NFL. He disagreed, and his wife sent a letter to the board asking them to reconsider.

In 1994, the trustees again acknowledged Harrison's "total and permanent disability," at age 45 ... but they would not give him more money. Instead, they informed him that his "disorder has its origin in an incident that occurred while you were playing college football, not League football." They also said that his depression was "of recent origin".

Yes, the trustees tied Harrison's health problems to his life before and after his NFL career ... but said he was not damaged during his career.

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How did they reach this conclusion? In part, they used Harrison's honesty against him. He had told at least one doctor he was traumatized seeing a teammate suffer a broken neck and paralysis his senior year at Texas A&I (now Texas A&M-Kingsville). That allowed the trustees to trace his problems to his college career, instead of his NFL career.

And of course, it's reasonable to assume that his memory loss, depression and diminished cognitive function got worse after he retired. That enabled the trustees to say his depression was "of recent origin".

Still, there was no debate about his disabilities. Two doctors had confirmed them -- and one of them was appointed by the retirement plan, not by Harrison. The only dispute was what caused him to be disabled.

Harrison appealed. And this is when his case and his savings began to disintegrate.

The trustees argued that he failed to appear for a psychiatrist's examination, failed to respond to requests for counsel, then failed to appear for another examination. The trustees alleged that when a process server approached Harrison, Harrison drove away quickly, did not stop and kept shaking his head, trying to lose the process server.

They said he did not provide financial information. They said he participated in activities that "include socializing with college football teammates at a team reunion, direct participation in real estate transactions and other business activities." They claim he was trying to run a rodeo out of his backyard. They say witnesses described him as a "businessman" who was "interested in anything to make money." They said he missed appointments with their doctors. He also missed two court hearings.

They denied his appeal and suspended his benefits.

Then they filed a counterclaim to recoup everything they had paid him.

In 1994, the trustees again acknowledged Harrison's "total and permanent disability," at age 45 ... but they would not give him more money. Instead, they informed him that his "disorder has its origin in an incident that occurred while you were playing college football, not League football."
 

The trustees could have denied his request for more money and kept him on the lowest tier. Instead, they basically called him a crook. In 1996, three years after their chosen doctor wrote a withering report detailing Harrison's maladies, the trustees determined that Harrison was "not now totally and permanently disabled."

That makes it sound like Harrison suddenly got healthy, or had been faking it the whole time. Harrison says now that he never received the notices that the trustees sent him. He says communication broke down when his court-appointed attorney left the case. Harrison, who never graduated from college, represented himself in court.

Why would a man ask for increase in disability pay, then hide from the people who can give it to him? The trustees and their lawyers did not seem to consider that a man with serious mental and physical ailments might miss a few appointments.

The trustees argued that Harrison was "unjustly enriched" by $236,626 -- every last dollar they had paid him. Because Harrison failed to show up in court, the trustees won a default judgment against him. Harrison was ordered to return all his disability payments, along with $99,112.50 in legal fees.

The total default judgment against Harrison (including interest) was $352,252.06.

Harrison's average annual NFL salary: $49,750.

It got worse. Harrison also had a pension, which is separate from disability pay. The trustees determined that his pension was worth $130,528, and they successfully offset that against the money he suddenly owed them. So they took his pension.

Harrison sued to get his money back. He had another court-appointed attorney, who resigned. Harrison represented himself again. He knew what was happening was wrong, but he did not understand the legal arguments against it. He was not capable of arguing that his pension should have been exempt from any judgments against him, according to the Employee Retirement Income Security Act of 1974. He just attached a copy of his original complaint and stated his case.

A magistrate judge said his motion "simply relies on his pleadings, and therefore is insufficient."

In 2003, the NFL started giving Harrison retirement benefits again. But that was apparently an accident. In 2007, they cut him off again.

Then, in 2011, when the NFL and the Players Association signed a new collective bargaining agreement, they created a $620 million Legacy Fund for players who retired before 1993. The NFL proudly announced that every player who retired before 1993 would receive at least $600 per month, "regardless of the form of benefit". It doesn't matter if the player is disabled or healthy, wealthy or poor.

Harrison received a form letter from NFL commissioner Roger Goodell saying he was entitled to Legacy Fund payments. By the league's calculation, a player with Harrison's experience should have received $1,144 per month from the Legacy Fund. But in 2012 the trustees voted to offset Harrison's Legacy money against the default judgment. So there went his Legacy Fund benefit.

"I had a little faith in the legal system," Harrison said, "and it just crapped on me."

Harrison's current lawyer, Jeffrey Dahl, argues that the trustees had no legal right to touch Harrison's pension, and he is fighting to have it restored. But attorneys for the retirement plan wrote in a court filing last summer that Harrison has "unquestionably already received more than his fair share of benefits." They also wrote: "Harrison's first lawsuit against the Plan nearly 20 years ago exposed him as a fraud."

A fraud?

Dwight Harrison?

"I'm not a doctor," Harrison says. "If you're going to accuse anybody of fraud, charge them, not me."

Yes, the doctors. Harrison gave me access to his medical records but asked me not to quote them directly out of respect for his privacy. They tell a thorough and heartbreaking version of the horror story you have heard about other retired NFL players: post-concussion syndrome, memory loss and ... well, one thing Harrison still has left is pride. He asked me not to go into detail. But I can say this: The records are extremely detailed, and they are painful to read.

The trustees have decided that when several doctors diagnose a man with mental problems, including memory loss, and that man misses a few appointments, he is a "fraud" who doesn't deserve any benefits or his pension. And if that man has dementia now, he should apply for benefits elsewhere.
 

Six doctors have reached the same conclusion about Harrison, independent of each other. The first was in 1993. The most recent was in 2008. And in some cases, the doctor was a neutral psychologist chosen with the approval of the trustees.

Also, in 2008, the Social Security Administration confirmed their findings and said his condition was "due to head injury."

It's a pretty convincing case ... unless you really, really don't want to be convinced.

*****

So what is the NFL's response to all this? Well, Mike Miller, the Director of NFL Player Benefits, did not return several calls. The three current league-appointed trustees (executives Ted Phillips of the Bears, Dick Cass of the Ravens, and Katie Blackburn of the Bengals) referred me to the Groom Law Group, counsel to the plan.

Doug Ell, an attorney with Groom, repeated via email his contention that the plan "has been subjected to both fraud and frivolous litigation by Mr. Harrison."

I asked Ell about the six doctors who have examined Harrison, including at least one who was appointed by the league. Did Harrison dupe them?

Ell's response: "I do not know what doctor reports you refer to, when they were written, or what they say."

I sent Ell a 45-page file of medical records -- which, of course, has been in the record of the case. I asked again if he thinks Harrison duped the doctors.

In his response, Ell did not answer that question or even acknowledge the medical records. Instead, he wrote that Harrison lost benefits because he did not take a medical exam.

"Mr. Harrison was explicitly and repeatedly warned of it, and a federal judge even ordered him to attend, and he refused to do so," Ell wrote.

Ell also wrote: "There is a very generous benefit plan for former NFL Players who have dementia. It is called the '88 Plan. You might encourage Mr. Harrison to seek those benefits."

Why would Ell suggest that Harrison apply for the '88 plan, when his firm has argued in court filings, for many years, that Harrison does not have dementia?

Ell's response: "I do not know whether Mr. Harrison currently has dementia. If he does, there are generous benefits. I do not understand why he would not seek those benefits if he does have dementia."

Dahl, Harrison's lawyer, is skeptical about getting '88 Plan benefits, because the trustees have declared he is no longer a participant in the NFL retirement plan.

To sum up: The trustees have decided that when several doctors diagnose a man with mental problems, including memory loss, and that man misses a few appointments, he is a "fraud" who doesn't deserve any benefits or his pension. And if that man has dementia now, he should apply for benefits elsewhere. After all, the trustees are tired of his "frivolous" actions.

The trustees convinced courts they were right, but Harrison was severely under-lawyered. They have taken a few anecdotes about Harrison trying to conduct business, meeting with college teammates and failing to show up for doctor's exams and court appointments, and used them to punish him for two decades.

*****

How do you measure what is left of a broken man?

Harrison's memories are scattered like leaves on a windy day. He recalls watching game film as a player and not remembering that he played in the game. Sometimes he does not even remember all of his injuries.

Harrison was 44 when this fight began. He is 65 now. His battle for benefits has lasted twice as long as his NFL career. He could have lived a more comfortable life, with better medical care, if the NFL had not cut off the payments he deserved.

For Harrison, the pain cuts deeper than the money he lost. The trustees have essentially told him that his life did not happen the way he says it happened.

"They've got it in there that I am a fraudulent person," he says, and is there a worse charge than that?

"Why?" Harrison asked me. "Why in the world are they treating us so bad? You are dealing with some evil people."

He knows that his only hope is through the legal system. But he is worried about showing up in court and hearing the trustees and their lawyers call him a fraud.

"I don't know if I could take it," he says. "You ruined my life."

I didn't realize it when I called, but this story will remove another piece of Dwight Harrison. The stress of defending himself overwhelmed him.

"I'm not going to give another interview," he said. "It was just too much."

 
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