Pro–Football, Inc. v. Tupa

• Citation: 428 Md. 198,51 A.3d 544
• Decision Date: 22 August 2012
• Docket Number: Sept. Term, 2011.,No. 29,29
• Parties: PRO–FOOTBALL, INC., t/a The Washington Redskins, et al., v. Thomas J. TUPA, Jr.
• Court: Court of Appeals of Maryland

428 Md. 198

51 A.3d 544

PRO–FOOTBALL, INC., t/a The Washington Redskins, et al.,

v.Thomas J. TUPA, Jr.

No. 29, Sept. Term, 2011.

Court of Appeals of Maryland.

Aug. 22, 2012.

David O. Godwin, Jr. (Ashlee K. Smith of Godwin, Erlandson, MacLaughlin, Vernonand Daney, LLC, Ellicott City, MD), on brief, for Petitioners.

Benjamin T. Boscolo (Gerald Herz and Kevin H. Stillman, Chasen Boscolo Injury Lawyers, Greenbelt, MD), on brief, for Respondent.

J. Porter Wiseman, Esquire, Washington, DC, Jeffrey L. Kessler, Esquire, Adam J. Kaiser, Esquire, Jeffrey H. Newhouse, New York, New York, Amici Curiae brief of the National Football League Players Association, National Basketball Players Association, Women's National Basketball Players Association, Major League Baseball Players Association, National Hockey League Players Association, Professional Hockey Players Association, and Major League Soccer Players Union.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.

ELDRIDGE, J.

In this case, involving a claim by a former professional football player for benefits under the Maryland Workers' Compensation Act, ¹ based upon an injury during pre-game warm-up at the employer's stadium in Prince George's County, Maryland, the employer and its insurer presents two issues. The first is whether the Maryland Workers' Compensation Commission should have exercised jurisdiction over the claim when the employment agreement contained a forum selection clause providing, inter alia, that claims for workers' compensation benefits should be governed by Virginia law and that the Virginia Workers' Compensation Commission should have exclusive jurisdiction to resolve such claims. The second issue presented by the employer and insurer is whether injuries occurring while playing and practicing professional football are “accidental injuries” and thus compensable under the Maryland Workers' Compensation Act.

I.

The facts underlying the two issues raised in the Court are not disputed by the parties. In March 2004, the respondent Thomas Tupa and the petitioner Pro–Football, Inc., trading as (t/a) the “Washington Redskins,” entered into a four-year National Football League (NFL) employment contract for Tupa to play football for Pro–Football, Inc. The position played by Mr. Tupa was “ punter.” Pro–Football, Inc., t/a the Washington Redskins, is incorporated in Maryland and owns its stadium, named “FedEx Field,” which is located in Landover, Prince George's County, Maryland. All of Pro–Football, Inc.'s “home” football games are played at FedEx Field in Maryland, and the players' practice or “warm-up” just before the games also occurs at FedEx Field. Pro–Football, Inc., has its headquarters and practice facility in Virginia, and most practices are at the Virginia facility. Such practices, of course, are for the purpose of getting the players ready to play well at the football games.

The employment contract between Tupa and Pro–Football, Inc., contained, in an addendum, a forum selection clause which stated as follows:

“JURISDICTION. The parties hereto agree that this Player Contract shall for all purposes be deemed to have been negotiated and executed in Virginia; that should any dispute, claim or cause of action (collectively ‘dispute’) arise concerningrights or liabilities arising from the relationship between the Player and the Club, the parties hereto agree that the law governing such dispute shall be the law of the Commonwealth of Virginia, and that the exclusive jurisdiction for resolving such dispute in the case of Workers' Compensation is the Virginia Workers' Compensation Commission, and in the case of Workers' Compensation claims the Virginia Workers' Compensation Act shall govern.”

In January 2005, Tupa complained of mild lower back pain, and he was examined by Dr. Thomas Schuler of the Virginia Spine Institute. At the time, Dr. Schuler determined that Tupa suffered from “significant underlying spondylosis and stenosis,” a condition which the doctor did not believe would effect Tupa's ability to play during the 2005–2006 football season, particularly because Tupa had successfully completed the 2004–2005 season. The doctor concluded that Tupa “should be able to play one or two more seasons” before the condition greatly impacted him.

On August 19, 2005, at FedEx Field, during his pre-game warm-up for a pre-season game, Tupa landed awkwardly after a punt and felt a sharp pain in his lower back. He described the pain as a “jarring” sensation, sought immediate medical attention, and received medication.

On August 22, two days later, Tupa again visited Dr. Schuler, who noted that Tupa was reporting “95% back pain.” An MRI disclosed “significant progression of the disc degeneration ... [t]hat clearly progressed significantly from a year ago with much more collapse.” When Tupa saw Dr. Schuler again on August 23, Dr. Schuler concluded that Tupa had significant discogenic pain and could possibly be a good candidate for surgery. The doctor also determined that Tupa was not able to continue playing professional football until he was able to get his condition and the related pain “calmed down.” The doctor recommended intradiscal steroid injection “as a last ditch effort to get [Tupa] back to a functional status.”

When Tupa next saw the doctor on September 2, 2005, Tupa reported that the pain had not subsided and that he continued to have numbness and tingling sensations in his feet. Dr. Schuler recommended giving Tupa's condition more time to heal naturally before proceeding with an operative solution. Dr. Schuler also noted 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.”

Despite a treatment regime which included medication and physical therapy, Tupa's condition did not improve. In January 2006, during an end of season evaluation, Dr. Schuler noted that Tupa suffered from “a marked disc collapse ... of approximately 90%.” Dr. Schuler concluded that Tupa's condition would not improve further without major spinal surgery, and that, even if Tupa did have surgery, it would be unlikely that he would ever be able to play professional football again. After discussing his options, along with the related risks, with Dr. Schuler, Tupa decided to forego surgery. Dr. Schuler noted that Tupa “under[stands] the risks ofsurgery versus no surgery, and participation and non-participation in the NFL. [Tupa] agrees ... he is not a candidate for the NFL at this time.”

On May 15, 2006, Tupa filed a claim for benefits because of his back injury with the Virginia Workers' Compensation Commission. He subsequently withdrew this claim, and the Virginia Commission dismissed the matter “without prejudice.”

On October 12, 2006, Tupa sought an independent medical evaluation from Dr. Michael Franchetti. Dr. Franchetti concluded that the back injury sustained by Tupa on August 19, 2005, was “within a reasonable degree of medical certainty ... a career-ending injury for” Tupa. Another doctor, Dr. Charles Jackson, evaluated Tupa on December 11, 2006, and he likewise concluded that Tupa's professional football career would be shortened, but he disagreed with the other doctors' assessment that the back injury was caused by Tupa's professional football activities. Rather, he concluded that the August 19th injury “manifest[ed] an ongoing degenerative spine condition which ... was aggravated by years of [punting].” He determined that “[t]he kicking incident did not cause or precipitate damage to [or] materially change the degenerative condition which” caused the end of Tupa's career.

At the present time, Tupa has not sought surgical intervention to address his back pain. He no longer plays professional football, but is currently employed in a sedentary position, which he has held since February 2006. Tupa was paid by Pro–Football, Inc., pursuant to his contract, for the remainder of the 2005–2006 season. Although Tupa still suffers from pain and takes medication to address it, he acknowledged in the circuit court trial that he believes that he will eventually need back surgery, although he is delaying the procedure for as long as possible.

Tupa filed a claim for workers' compensation benefits with the Maryland Workers' Compensation Commission on March 30, 2007. The petitioners, Tupa's employer and its insurer, challenged Tupa's claim on the issues of “jurisdiction,” whetherthe injury was an accidental injury, and whether his disability was casually related to the injury in August 2005. On March 3, 2008, the Maryland Workers' Compensation Commission held a hearing on Tupa's contested claim. The Commission decided, on March 14, 2008, that the Maryland Commission could properly exercise jurisdiction over Tupa's claim, that Tupa had sustained an accidental injury arising “out of and in the course of [his] employment,” and that Tupa's disability was causally related to his accidental injury. Tupa was awarded temporary partial disability benefits and the petitioners were ordered to pay the related medical expenses.

Pro–Football, Inc., and its insurer filed an action for judicial review in the Circuit Court for Prince George's County and requested a trial by jury. Although the parties agreed that there were no factual disputes regarding the issue of jurisdiction, a two-day jury trial was held, in which the jury decided that Tupa had sustained an accidental injury in August 2005 and that his disability was causally connected to that accidental injury. The Circuit Court determined, as a matter of law, that the Maryland Workers' Compensation Commission was entitled to exercise jurisdiction over Tupa's workers' compensation claim.

Tupa's employer and its insurer noted an appeal to the Court of Special Appeals, which affirmed in a reported opinion, Pro–Football v. Tupa, 197 Md.App. 463, 14 A.3d...