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Football Injuries Not Intentional As Time And Practice Not Essential
By Jorge Alexandria and Lonce LaMon - September 27, 2012

Fall has arrived and so has the National Football League (NFL) season. In years past, the path to the Super Bowl has been strewn with broken bodies and damaged brains that result when highly motivated, superbly conditioned athletes collide violently in pursuit of glory.

The truth is football has been a rough sport since the leather-helmet days, but today's version raises the violence to an art form. No other contact sport gives rise to as many serious injuries as football. The NFL has acknowledged the potential long-term consequences of the sport and has taken steps toward reducing injuries.  Now an NFL player who sustains a concussion cannot return to the game that day.
 
In addition, beginning in the 2013 season, all NFL players are required to wear thigh and knee pads for protection.  The delay gives manufacturers time to design and produce options for the new uniform. It also gives players time to adjust. Most players dislike this new rule as they believe they are faster and better with fewer pads. That and some players seem to like the glamour image of big shoulder pads and little padding below that level, which makes them look like gladiators.
 
The new rules were expected because of lawsuits alleging that the NFL was negligent and contributed to players post career health ills.  The NFL has since become safety conscious. And whatever the NFL does, the NCAA seems to mimic it.  For example, late last year when the NFL changed the kick off from the 35 yard line rather than the 30, college football followed suit. The risk of injury from high speed collisions was significantly reduced as a result.  Some of those big blows and the injuries do come with collisions on kickoffs. Other changes include giving kick returners a 1 yard protective area to make the catch.  
 
Just this August and September of 2012, two decisions from the Maryland Special Court of Appeals were about two post-career football players and their workers’ compensation claims.  Both players, Tom Tupa and Darnerian McCants, played for the Washington Redskins. 
 
Tom Tupa was a punter for the Redskins from 2004 to 2005.  Darnerian McCants was a wide receiver for the Redskins from 2002 and 2004. 
 
 
What the two players had in common in their separate cases is that in both, the Maryland Workers’ Compensation Commission asserted that neither player was a “covered employee” in the state of Maryland.  You see, the name “Washington Redskins” is kind of a misnomer.   The Redskins practice and play at home close to Washington D.C. but actually they practice in Ashburn, Virginia, and play their home games in a stadium in Landover, Maryland.  The stadium is called FedEx Field. 
 
Plus, the Washington Redskins are incorporated in Maryland, but they have their corporate headquarters in Ashburn, Virginia.  And the majority of their time is spent in practice and preparation in Ashburn, Virginia.
 
Both claimants, Tom Tupa and Darnerian McCants, filed their workers’ compensation cases in Maryland and had them rejected as not being in the proper jurisdiction.  The argument from the Redskins was that number one, it was in the players’ contracts that they would file any potential workers’ comp claims in Virginia, and then number two, that the bulk of their employment time was spent in Virginia.  About eight times a year the players were in Maryland, but several hundred times a year the players were in Virginia for practice and preparation for the games.
 
Therefore the essential and majority of their time was spent in Virginia, and the time in Maryland was on a “casual, incidental, or occasional basis” as went the Redskins’ argument. 
 
The cases were both then sent to the Circuit Court, and this court affirmed the Maryland Workers’ Compensation Commission.   Then the cases were sent to the Special Court of Appeals.  And this is the court that in both cases reversed the decisions.
 
This Special Court of Appeals stated in both cases that the essence of the job is to play football in Maryland—that’s what is essential.   The act of practicing in Virginia may require more time, but in fact it’s incidental to the main purpose of employment: which
The act of practicing in Virginia may require more time, but in fact it's incidental to the main purpose of employment: which is to play in football games. 
is to play in football games.  It’s not the essence of the employment to practice and watch game films in Virginia.  It’s essential to win in the real games in Maryland, which is where the lion’s share of their league games are played. 
 
It’s the same argument that Hannibal Lector had with Clarice, the FBI agent played by Jody Foster in The Silence Of The Lambs.   “No Clarise, that’s incidental.  What is essential?”  That was the same question in the feverish argument here between the Maryland Workers’ Compensation Commission, The Circuit Court, and the Special Court of Appeals.
 
Now, the five claims that were rejected by the Maryland Commission on the Darnerian McCants case on the basis of them claiming no jurisdiction, have been remanded back to that jurisdiction.  So, his cases are now accepted by that court and are awaiting hearing.
 
But for Tom Tupa, his claim has been sent back to the Commission with a determination that it is compensable.   The arguments by the Redskins against Tupa’s claim got pretty wild.
 
Tupa was injured in 2004 when he kicked a punt in a pre-game warm up, fell backwards, and injured his spine.  One doctor for the Redskins stated that this incident did not cause the disability but a preexisting spine condition, a degeneration of the spine, caused the injury.  The Redskins’ argument was also that Tupa’s injury was not an “accidental personal injury” within the meaning of the Maryland Workers’ Compensation Act. 
 
 
They wrote:  “The key to the application of the term ‘accidental injury’ is whether the occurrence was an unusual or unexpected happening in the course of employment.  Thus, if a stenographer was suddenly subjected to another employee’s striking him or her in the elbow with great force, the resulting injury would at a minimum be unusual, unexpected, and surprising.  It would, in any event, not be a commonplace happening.  Consequently, the stenographer would properly be said to have incurred an accidental injury within the meaning of the Workmen’s Compensation Law. 
 
“On the other hand, a professional football player is engaged in an occupation in which physical contact with others is not only expected, commonplace, and usual, but is a requirement.” 
 
Sounds like a bad argument to me.  Tupa’s representation came up with this better argument:
 
In Larson’s Workers’ Compensation (2007), the treatise refers to the “conspicuously wrong” idea that football injuries should not be considered accidental because “football is a dangerous sport fraught with expectation of injury”.  Larson points out that, in “almost all states in which the National Football League operates,” injuries occurring during practice or the game are “routinely treated as compensable”.  He comments that denying workers’ compensation benefits to professional football players effectively denies a class of covered employees compensation for doing precisely the job they were hired to do.  Larson also draws attention to the inherent contradictions in this approach, stating:
 
“And why is doing the job itself not covered?  Because everyone knows it is fraught with danger.  As well, then, tell the coal miner—whose occupation is far more dangerous—that he or she is
To say that football injuries are not accidental because of the probability of injury is, if one looks more closely, no more than to say that any activity with a high risk factor should be ruled noncompensable.
covered, so long as the miner does not go down into the mine…
 
“The books are full of cases in which compensation is denied a covered worker because he or she was not doing the job at the time.  But never before because he or she was doing the job… To say that football injuries are not accidental because of the probability of injury is, if one looks more closely, no more than to say that any activity with a high risk factor should be ruled noncompensable. 
 
“As a little reflection will show, this is tantamount to saying that the player in effect intended to get himself injured. This is, of course, preposterous. True, some of these sports are rough. But everything about them is elaborately designed to prevent actual disabling physical injury. All the forbidden practices – clipping, piling-on, face-masking, spearing, unnecessary roughness, and a host of others – are precisely intended to do everything possible to forestall injury...  It is, of course, not particularly surprising if, as a result of some such mish-mash of erroneous impressions both about professional sports and about workers’ compensation the untrained person-on-the-street (or in the jury) just somehow feels the professional athlete should not get compensation. But it is unworthy of a legally trained mind to substitute this kind of superficial reaction for an accurate analysis that simply accords professional athletes the same protection under compensation law as is enjoyed by everyone else who works for a living.”
 
Copyright © Lonce LaMon and adjustercom. All rights reserved.

 
 
 

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