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Jones v. Pro-Football, Inc.

Court of Appeals of Virginia

February 12, 2019


          Benjamin T. Boscolo (ChasenBoscolo Injury Lawyers, on brief), for appellant.

          Benjamin J. Trichilo (Eric J. Berghold; McCandlish Lillard, P.C., on brief), for appellees.

          Present: Chief Judge Decker, Judges Humphreys and Huff Argued at Alexandria, Virginia




         This appeal requires that we review the application of the term "average weekly wage," as defined by Code § 65.2-101, by the Workers' Compensation Commission (the "Commission") to the computation of partial disability benefits for a professional football player who suffers a work-related injury in the peculiar contractual circumstances common to players in the National Football League ("NFL").

         Appellant Tony Jones ("Jones") appeals the decision of the Commission awarding him temporary total disability and permanent partial disability benefits for a work-related injury, based upon an average weekly wage finding of $783.63. Jones argues that the Commission erred in affirming the deputy commissioner's average weekly wage finding of $783.63 and that his average weekly wage should be $6, 115.38. Appellees, Pro-Football, Inc., t/a Washington Redskins and Great Divide Insurance Company (collectively "employer"), filed a cross appeal asserting that the Commission erred in finding that Jones remains partially disabled after July 17, 2017. Specifically, employer argues that any disability after that date is unrelated to Jones's injury and "is self-imposed because [Jones] would have been authorized to play professional football if he had merely asked his attending physician."

         I. BACKGROUND

         On May 6, 2015, employer hired Jones as an undrafted free agent.[2] Pursuant to the collective bargaining agreement ("CBA") between the NFL and the NFL Players' Association, Jones signed a standard player contract with employer. The terms of Jones's standard player contract provided that he would earn an annual salary of $435, 000 "[f]or performance of Player's services and all other promises of Player," or $318, 000 if he suffered an injury and was placed on "injured reserve." Jones also received a signing bonus of $2, 500.

         Eric Schaffer ("Schaffer"), employer's General Counsel and Senior Vice President of Football Operations, explained that Jones's standard player contract provided for week-to-week payments and permitted employer the right to terminate Jones at any time.[3] Describing the provisions of the standard player contract in greater detail, Schaffer explained that if Jones were selected for employer's final fifty-three-man roster, Jones would receive 1/17th of $435, 000 for each week of the NFL's seventeen-week regular season where he remained on the roster. Alternatively, if Jones were injured and placed on injured reserve, he would receive 1/17th of $318, 000 for each week of the regular season. Schaffer explained that the injured reserve designation prohibits other teams from claiming a player and guarantees an injured player the corresponding salary for as long as his injury lasts. Additionally, pursuant to the CBA, employer was required to release a player after recovering from an injury lasting less than six weeks, but not if the player's injury lasted longer than six weeks. Employer's "medical staff determine[d] the nature and extent of the injury, and the team determined what category these players go under."

         On August 23, 2015, Jones suffered an injury to his right shoulder during football practice. Jones felt his shoulder dislocate after catching a pass and being tackled to the ground by a coworker. Jones wanted to "tough it out," but the injury affected his performance during practice.

         Dr. Christopher Annunziata ("Dr. Annunziata"), employer's team physician, diagnosed Jones with a right shoulder capsular strain and recommended standard rehabilitation. While Dr. Annunziata found full motion and strength with no history of instability, he noted that Jones complained of "discomfort predominantly along the posterior right shoulder." Jones continued to fully participate in practice, but his discomfort persisted throughout the next few days.

         On August 30, 2015, an MRI of Jones's right shoulder revealed a labral tear. That same day, employer terminated Jones's employment. Dr. Annunziata conducted Jones's exit physical exam, as required by Jones's standard player contract, and cleared Jones to participate in full football activities.

         Jones and employer subsequently negotiated and signed an injury settlement agreement. Under the terms of the agreement, executed by the parties on September 1, 2015, Jones received $1, 142.86 for per diem preseason pay from August 30, 2015 through September 6, 2015, and $112, 235.29 as consideration for a waiver of all rights under his contract.[4] Jones was never placed on injured reserve, and he became a free agent and could be signed by any other team. Training notes from early September 2015 indicate that although Jones reached an injury settlement agreement with employer, Jones would "follow through" with rehabilitation and "was set up for PT" in Flint, Michigan.

         Jones returned to his home in the Flint, Michigan, area where he attended physical therapy multiple days each week. Employer paid for Jones's therapy. Jones also hired a personal trainer and worked out with him for a total of five hours each day. Jones's medical records reflect that he engaged in physical therapy from September 8, 2015 to November 12, 2015.

         Between August 23, 2015 and January 25, 2016, Jones looked for work but was undergoing intense physical rehabilitation so that he could return to playing professional football. Jones found a paid internship with Merrill Lynch in January 2016, and the company hired him full-time on April 23, 2016. However, Jones left his job at Merrill Lynch in July 2017 to take a job as an operations assistant with the University of Michigan football team.

         Jones's medical records reflect that he visited with multiple physicians after returning to Michigan. On February 17, 2016, Dr. Charles B. Jackson ("Dr. Jackson"), an orthopedic surgeon and sports medicine specialist, evaluated Jones's right shoulder. Dr. Jackson diagnosed Jones with "[c]hronic strain [of the] right shoulder with impingement secondary to circumferential tear of the labrum, partial thickness rotator cuff tear, and humeral head translation[.]" Dr. Jackson opined that Jones required an arthroscopic surgery due to his failure to respond to conservative treatment and persistent symptoms. Dr. Jackson recommended that Dr. James R. Andrews ("Dr. Andrews"), another orthopedic surgeon and sports medicine specialist, perform the surgery.

         On August 11, 2016, Dr. Andrews performed a right shoulder arthroscopic anterior and posterior labral repair, as well as a posterior capsular repair, on Jones's right shoulder. On November 30, 2017, Dr. Andrews opined in a progress note that Jones had "made great progress" with physical therapy and rehabilitation.

         The record reflects that Jones attended postoperative visits with Dr. Andrews on February 1, 2017, May 1, 2017, and July 17, 2017. On July 17, 2017, Dr. Andrews reported that Jones "still feels a little stiff[, ]" but that "[Jones] ...

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