Hamilton v. Pro-Football, Inc.

• Decision Date: 12 February 2019
• Docket Number: Record No. 1091-18-4
• Citation: 69 Va.App. 718,823 S.E.2d 13
• Parties: Raymond J. HAMILTON v. PRO-FOOTBALL, INC., t/a The Washington Redskins and Great Divide Insurance Company
• Court: Virginia Court of Appeals

69 Va.App. 718

823 S.E.2d 13

Raymond J. HAMILTON

v.PRO-FOOTBALL, INC., t/a The Washington Redskins and Great Divide Insurance Company¹

Record No. 1091-18-4

Court of Appeals of Virginia.

FEBRUARY 12, 2019

Benjamin T. Boscolo (Chasen Boscolo, on brief), for appellant.

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

Present: Chief Judge Decker,^* Judge Malveaux and Senior Judge Haley

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Raymond J. Hamilton (the claimant) appeals a decision of the Workers’ Compensation Commission denying his claim for wage loss benefits for an injury that he sustained while on the practice squad of Pro-Football, Inc. (the employer), trading as the Washington Redskins. He contends that the Commission erroneously found that he failed to market his residual capacity and unfairly punished him for attempting to return to playing professional football after his injury instead of immediately seeking other employment. We hold that the evidence supports the Commission’s decision. Consequently, we affirm the denial of benefits.

I. BACKGROUND²

The claimant sustained a compensable injury by accident on December 18, 2015, while working for the employer. He returned to work in a different field on October 3, 2016. He sought temporary total disability benefits for the period of December 18, 2015, through October 2, 2016.

The evidence introduced at the hearing before the deputy commissioner establishes that the claimant fractured a bone in his right foot on December 18, 2015, while he was serving as a player on the practice squad of the employer’s football team. The injury rendered him unable to play football.

As a result of the injury, the claimant had two surgeries on his foot.³ He also underwent rehabilitation at several locations during the nine months following the injury. The claimant initially had rehabilitation at the employer’s training facility five to six days per week until mid-January 2016, when his practice squad contract expired. He then underwent rehabilitation with the employer’s staff two to three days a week for the last two weeks of January. No evidence in the record indicates the length of these sessions.

Beginning in February 2016, the claimant engaged in rehabilitation in Iowa, Michigan, and Texas.⁴ While in Texas, the claimant underwent rehabilitation three days a week for one to two hours per day. Nothing in the record documents the frequency or duration of the claimant’s rehabilitation sessions while in Iowa or Michigan. In mid-August 2016, the claimant began formal rehabilitation in Virginia. The physical therapy plan recommended rehabilitation two to three times a week for twelve weeks. The record reflects that the claimant participated in the lesser number of zero to two sessions per week, with each session lasting one hour, for six weeks in August and September 2016.

In mid-September 2016, Dr. Robert Anderson "noted complete healing" at the site of the claimant’s second surgery and authorized him to "increase ... activity in regard to" his fracture.⁵ Following that visit, the claimant continued physical therapy in Virginia through the end of September 2016.

On October 3, 2016, the claimant began working as a sales representative for Derby Products and Services, a Florida company that distributes chemicals for automotive maintenance, which was operated by the family of a former teammate.

The claimant submitted a claim to the Commission for wage loss benefits for the period between his injury on December 18, 2015, and the date on which he began working for Derby Products. In defending against the claim for benefits, the employer argued in part that the claimant failed to prove that he marketed his residual work capacity.

At the hearing before the deputy commissioner, the parties introduced evidence pertaining to the claimant’s education, football career, and attempts to obtain employment during his period of partial disability. That evidence established that the claimant graduated from the University of Iowa in 2015 with a bachelor’s degree in communications and a certificate in entrepreneurship. While a student there, he played for the university’s football team. The claimant hoped to pursue a career as a professional football player in the National Football League (NFL) upon graduation.

Despite his goal, the claimant was not drafted by a football team upon graduation. The Dallas Cowboys signed him that year as a "free agent" for their ninety-man "offseason roster," but he was cut from the roster in August 2015. The claimant was then "picked ... up" by the Pittsburgh Steelers for their ninety-man offseason roster, but he was subsequently cut from that roster too.⁶

More than two months after being cut by the Steelers, the claimant signed a contract with the employer to join the Redskins practice squad. The contract entitled him to $6,600 per week and provided that he could be cut at any time. However, in the event of injury, the contract required the team to "carry" him and pay him at the contractual rate through "one week after the [team’s] last ... game" of the season. Two days after signing the practice squad contract, the claimant sustained the injury at issue in this appeal. Per his contract, the employer continued to pay his salary through the first two weeks of January 2016. At the end of those two weeks, his contract expired.

The employer offered extensive evidence regarding NFL employment practices through Eric Schaffer, the team’s senior vice president of football administration. Schaffer explained that under league standards, each team has a ninety-man roster during training camp. At the end of August, each team must determine who from the group of ninety will proceed to its fifty-three-man roster for the playing season. During the playing season, in addition to a fifty-three-man roster, each team may also have a ten-man practice squad. Schaffer testified that the employer "typically" had "a lot of movement" on its practice squad, "swap[ping] those guys out ... very regularly."

Schaffer opined that an "undrafted player," like the claimant, was a "long shot" to actually make a fifty-three-man roster. He explained that the claimant was hired for the employer’s practice squad in December 2015 despite his poor performance during the tryout because the team "needed the body[,] ... someone for practice to get [them] through the week," and that the team planned to replace the claimant after that week. Schaffer testified that after the team’s season ended in mid-January 2016 and the claimant’s contract expired, the employer did not have "any ... interest" in him.

At the hearing before the deputy commissioner, the claimant conceded that he was not "actively looking for work" between his injury on December 18, 2015, and his return to work on October 3, 2016, because he "thought [he] was going back to play football." According to the claimant, during that time he was "consistently rehabilitating his right foot" and doing "everything in [his] power" to achieve his "goal [of] return[ing] to professional football." The claimant acknowledged that although he was disabled from playing football after his injury, no doctor ever opined that he was "totally incapacitated from all [work] ... [f]or any period," even after surgery. He testified that while rehabilitating his foot, he "network[ed]" through the NFL Players Association (NFLPA), performed an externship with a sports memorabilia company, and "reach[ed] out to different universities [and] ... companies." The claimant’s job contacts log shows that over the relevant period of almost ten months, excepting the job that he eventually took, the claimant contacted six potential employers—four universities, including the college from which he had graduated; the organization that operates the Military Bowl; and Panini America, the company through which he performed the externship. The claimant unequivocally confirmed that he did "[not] apply[ ] for actual jobs" with any of those employers. The claimant further indicated that he did not register with the Virginia Employment Commission or investigate whether the employer had light-duty work available for him. Finally, the claimant said that after accepting that he would not be able to return to professional football due to his injury, he decided that "it was time for [him] to ... find a way to [make] some money."⁷ Consequently, he took the job with Derby Products.

The claimant offered into evidence a labor market survey performed by vocational rehabilitation specialist Mark Dennis. According to Dennis, the report provided a "snapshot" of the jobs available to the claimant as of 2017. The claimant asserted that Dennis’ testimony and survey were relevant to show that he met the goal of the marketing requirement for the post-injury period through October 2, 2016, by obtaining a job with Derby Products at the end of that period that "exceeded" his capacity.

The deputy commissioner denied the claimant’s request for temporary total disability. On request for review, the Commission agreed with the deputy’s assessment that the claimant had a duty to market his residual capacity because he was not totally disabled and failed to prove that he was undergoing extensive rehabilitation at the employer’s direction. It also accepted the deputy’s assessment that the claimant did not engage in a good faith effort to obtain work.

II. ANALYSIS

The claimant argues that the Commission should have found, given the claimant’s age, education, professional experience, and career aspirations, that he "successfully marketed his residual work capacity." He contends that the denial of benefits unfairly "punish[ed] [him] for trying to remain in professional sports."

The Workers’ Compensation Commission, as the fact finder, "resolves all conflicts in the evidence and determines the weight to be accorded the various evidentiary submissions." Bass v. City of Richmond Police Dep’t, 258 Va....