A Virginia appeals court has affirmed the ruling of the state’s Workers’ Compensation Commission, concluding that a hockey player, who was injured in a fight, was entitled to an award. In siding with the player, the court found that fighting is part of the game and that the player “had no duty to market his residual capacity” during the period in which he was trying to rehab his injured shoulder.
Ty A. Jones, the claimant, was a hockey player for the Norfolk Admirals on March 29, 2002 when the incident occurred. On that date, the claimant took the ice and, following his coach’s instructions, instigated a fight with an aggressive opposing player. As a result of the fight, the claimant was sent to the penalty box, at which time he noticed that his right shoulder was sore and he could not lift his arm. At the end of the game, claimant went immediately to the team doctor to report the injury.
The claimant, on May 16, 2002, had surgery performed on his shoulder, which included the insertion of six screws. Further, he was told to follow an aggressive rehabilitation program designed to help him be ready to compete in the fall.
The claimant sought medical and disability benefits, including temporary total disability for the period from April 20 through November 15, 2002. Following a hearing on June 1, 2004, the deputy awarded the requested benefits. He concluded claimant suffered an injury by accident arising out of and in the course of his employment and that claimant was entitled to temporary total disability compensation through November 15, 2002, when claimant was released back to work as a hockey player.
The employer appealed the ruling, but the commission affirmed, sparking the present appeal.
The employer argued on appeal the commission erred in finding that:
(1) claimant sustained a compensable injury by accident arising out of and in the course of employment while voluntarily engaging in a fight;
(2) claimant’s disability was not cumulative; and
(3) claimant was justified in failing to market his residual capacity. For the reasons that follow, we affirm the commission’s decision.
In its analysis, the court agreed with the commission that “fighting is an integral part of the game of hockey and that claimant’s job on employer’s hockey team was to be an ‘enforcer.’
“This conclusion was supported by the deposition testimony of Lawrence J. Landon, Executive Director of the Professional Hockey Players’ Association, who stated fighting is a part of hockey and is not prohibited by the league. He testified that the league rule on fighting is just a ‘policing mechanism or control mechanism because [fighting] is allowed.’
Turning to the employer’s second argument that the claimant’s injury was cumulative, the court cited testimony from the medical community in the case that the accident “materially aggravated his pre-existing shoulder condition.”
On the last argument, the court wrote that “evidence of claimant’s prognosis for a full recovery prior to the next hockey season, combined with evidence of the intensity of his ‘rehab protocol’ and the level of involvement of employer’s agents in overseeing the rehabilitative process, constitute credible evidence supporting the commission’s finding that claimant had no duty to market his residual capacity under the unique facts of this case.”
Norfolk Admirals et al. v. Ty A. Jones; Ct. App. Va.; Record No. 0050-05-4; 11/1/05
Attorneys of Record: Robert C. Baker, Jr. (Dobbs & Baker, on brief), for appellants. Benjamin T. Boscolo (W. David Falcon, Jr.; Chasen & Boscolo, P.C., on brief), for appellee.
