Pro–football Inc. v. Tupa

Decision Date28 February 2011
Docket Number2009.,No. 1839,Sept. Term,1839
Citation14 A.3d 678,197 Md.App. 463
PartiesPRO–FOOTBALL, INC. et al.v.Thomas TUPA, Jr.
CourtCourt of Special Appeals of Maryland


David O. Godwin, Jr. (Elizabeth D. Cardona, Godwin, Erlandson MacLaughlin, Vernon & Daney, LLC, on the brief), Ellicott City, MD, for appellant.Benjamin T. Boscolo (Gerald Herz, Chasen Boscolo Injury Lawyers, on the brief), Greenbelt, MD, for appellee.Panel: EYLER, DEBORAH S., ZARNOCH and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.ZARNOCH, J.

Appellants Pro Football, Inc. and Ace American Insurance Co. urge us to reverse a workers' compensation award granted to appellee, Thomas Tupa, for an injury sustained while employed as a professional athlete in the National Football League (NFL). Pro Football, a Maryland corporation, is in the business of operating the Washington Redskins football team. Tupa was employed as a punter for the team from 2004 until 2006. While warming up for a Redskins preseason game at FedEx Field in Landover, Maryland in August of 2005, Tupa claimed that he injured his lower back when he landed awkwardly after a punt. He sought immediate medical treatment and has not played football since.

Tupa filed a claim with the Maryland Workers' Compensation Commission on March 30, 2007 requesting temporary partial disability benefits for the period beginning March 1, 2006 and continuing to the present. Appellants contested Tupa's claim, on three grounds: (1) Maryland did not have jurisdiction over the claim, (2) appellee did not suffer an “accidental injury” arising out of and in the course of his employment, and (3) there was no causal connection between appellee's August 19, 2005, injury and his ongoing disability. After a hearing held on March 3, 2008, Commissioner Patricia G. Adams found that Maryland, rather than Virginia, had jurisdiction and that Tupa's disability was caused by an accidental injury suffered in the course of his employment. The Commissioner ordered appellants to pay Tupa compensation for his temporary partial disability and related medical expenses.

Appellants noted a timely appeal to the Circuit Court for Prince George's County and requested a jury trial. The trial was held August 31 and September 1, 2009. Although they disagreed over the legal issues of whether jurisdiction over the claim was in Maryland or Virginia, the parties stipulated that there was no factual dispute underlying the question. Consequently, the court determined as a matter of law that Maryland had jurisdiction. The jury found that appellee suffered an accidental injury, that his disability was causally connected to that actual injury, and that he was entitled to benefits for the time period from February 1, 2006 to February 28, 2007.


Appellants present the following issues for our review:

1. Whether the circuit court erred in determining that Maryland has jurisdiction over the appellee's claim, when the appellee signed a contract agreeing to bring all workers' compensation claims in the Commonwealth of Virginia?

2. Whether the circuit court erred in affirming the Maryland Workers' Compensation Commission's finding that the appellee sustained an accidental injury arising out of and in the course of his employment on August 19, 2005?

For the reasons set forth below, we affirm the circuit court's decision.


In 2004, Tupa signed a four-year contract with Pro Football to punt for the Redskins. In January of 2005, prior to the start of the 20052006 season, Dr. Thomas Schuler of the Virginia Spine Institute examined Tupa to assess his complaint of mild lower back pain. Dr. Schuler concluded that Tupa had “significant underlying spondylosis and stenosis” with some evidence of nerve problems in his right leg, but the physician did not feel that it would affect Tupa's ability to play the next season, given that he had successfully completed the entire 20042005 season with the same condition. Dr. Schuler stated that he expected appellee “should be able to play one or two more seasons before this catches up with him.”

The injury underlying this claim happened during pre-game warm-ups on August 19, 2005 at FedEx Field in Landover. According to appellee, he was about three quarters through his regular warm-ups when he landed awkwardly after a punt. He felt a sharp pain in his lower back, which he described as a “jarring” sensation. He immediately sought medical attention and was placed on a Medrol Dosepak according to the instructions of Dr. Schuler. The physician evaluated appellee two days later. He noted that appellee reported “95% back pain” and some residual numbness and tingling in the left foot. After reviewing an MRI, Dr. Schuler observed “significant progression of the disc degeneration ... [t]hat clearly progressed significantly from a year ago with much more collapse.” He also found “subarticular stenosis of a mild nature ... with mildly enlarged facet joints.”

Dr. Schuler saw Tupa again the next day, August 23, 2005, and reviewed recent pelvic and spinal x-rays which showed “significant spurring anteriorly ... with a slight retrolisthesis.” Dr. Schuler concluded that Tupa had significant discogenic pain and would be a good candidate for surgery, if necessary. Regarding his ability to play in the NFL, Dr. Schuler stated that he has to get this calmed down” first and that he would consider an intradiscal steroid injection “as a last ditch effort to get him back to a functional status.” Tupa's pain had not improved at his next evaluation on September 2, and the numbness and tingling sensation in his feet persisted. Dr. Schuler stated that they planned to give it some more time to improve with nonoperative care. He concluded that “the patient is still disabled from participating in the NFL, and he is still working aggressively in his rehabilitation to get back to a functional pain-free status.”

Appellee's condition remained the same throughout the 2005 season, with little improvement despite treatment that included medication and physical therapy. At his end of season evaluation in January 2006, Dr. Schuler concluded that Tupa suffered from “a marked disc collapse ... of approximately 90% with anterior, posterior, and lateral spurring [and] [r]etrolisthesis ... at that level” as well as “disc space narrowing of about 30%.” Dr. Schuler reported that Tupa had reached his maximum medical improvement without pursuing major spinal surgery “in the form of a stabilization and fusion of [the affected vertebrae] and that even with surgery, Tupa would not likely be able to return to the NFL. The doctor noted that they had talked about the issue extensively and that Tupa “under[stood] the risks of surgery versus no surgery, and participation and non-participation in the NFL. He agrees ... he is not a candidate for the NFL at this time.” Dr. Schuler also stated that Tupa's choice to treat the injury nonoperatively was appropriate.

An independent medical evaluation was completed by Dr. Michael Franchetti on October 12, 2006. Dr. Franchetti concurred that Tupa had reached maximum medical improvement. He concluded that [Tupa's] back injuries sustained on August 19, 2005 are, to within a reasonable degree of medical certainty and probability, a career-ending injury for the patient.” As far as permanent impairment, Dr. Franchetti found that appellee attained 33% whole person impairment,1 of which, 28% is “directly related to his injuries of August 19, 2005 and 5% could be attributed to his preexisting degenerative condition.

Another medical evaluation was completed by Dr. Charles Jackson on December 11, 2006. Pro Football submitted his report as evidence at the circuit court trial. In Dr. Jackson's opinion, Tupa could not have completed the 2005 season even without the “incident” during preseason. He concluded that the August 19 injury “manifest[s] an ongoing degenerative spine condition which shortened Tupa's career, and to a degree unknown was aggravated by years of [punting.] The kicking incident did not cause or precipitate damage to [or] materially change the degenerative condition which ended his career.” Dr. Jackson also disagreed with Dr. Franchetti's assessment, finding only “10% impairment of the whole person or 24% impairment of the left lower extremity.”

Tupa has continued to treat his condition non-surgically and has not returned to the NFL. He is currently employed as the Recreation Director for Bucksville, Ohio, a sedentary position that he has held since February of 2006. Pro Football paid Tupa the rest of his contracted salary for the 20052006 season, which ended in February 2006. He testified in the circuit court that he has to take pain medication in order to sleep through the night; otherwise, the pain wakes him up whenever he rolls over. Tupa continues exercising in a swimming pool a few times a week. He testified that he will eventually need back surgery, but is delaying the procedure as long as possible because he believes “the longer you wait the better the procedure gets.”

We will discuss additional facts below.


I. Jurisdiction

Appellants first argue that Maryland does not have jurisdiction over the workers' compensation claim because (1) Tupa is not a “covered employee” under § 9–203(a)(1) of the Labor and Employment Article (“LE”) of the Maryland Code (1991, 2008 Repl.Vol.), and (2) his contract contains a forum selection clause which divests Maryland of jurisdiction.

At trial, there were no disputed questions of fact related to jurisdiction. The parties submitted a set of stipulated facts to the circuit judge, who determined as a matter of law that Maryland had jurisdiction over the claim. We evaluate the legal correctness of the court's conclusion under a de novo standard of review. Schisler v. State, 394 Md. 519, 535, 907 A.2d 175 (2006). For the reasons stated below, we find that Maryland has jurisdiction over Tupa's workers' compensation claim.


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