By Jeff Birren, Senior Writer
The Washington Redskins recently defeated a worker’s compensation case brought by former player Adam Carriker. This was his second such case related to his left ankle. He had settled the first one against his first NFL employer, the St. Louis Rams. Out of football, he tried again, this time against his second employer, the Redskins.
Background
Carriker is from Nebraska and played defensive end at the University of Nebraska. As a senior he was the school’s defensive MVP and the Big 12’s Defensive Lineman of the Year. Carriker was a Big 12 first team all-conference selection and a Rivals.com third-team All-America. Prior to the NFL Draft he was measured at 6-6, 297 pounds, and scored a 28 on the Wonderlic test at the 2007 NFL Scouting Combine. Carriker was selected by the St. Louis Rams with the 13th pick in the first round of the NFL Draft. He signed a five-year contract for $14.5 million, and $9.5 million was guaranteed. He started all 16 games at defensive tackle as a rookie and was named the Rams’ rookie of the year. All seemed to be going well. In 2008 he played in 15 games, starting in nine. However, during a team conditioning session he injured his left ankle (Carriker v. Pro-Football, Inc., Court of Special Appeals of Maryland (“CSA”), No 2122 LEXIS 998 (November 14, 2019) (“Carriker”) at 2). The decision was not reported and it “may not be cited” in any court in Maryland as “stare decisis or as persuasive authority” (Id. at 1).
Carriker missed the entire 2009 NFL season as a result of the injury, and finally had surgery in January 2010 (Id. at 2). In April 2010 he was traded to the Redskins. Over the course of that first summer with the Redskins he had daily rehabilitation on his ankle with the team’s trainers as well as series of injections (Id.). The trainers declared the injury “resolved” on Aug. 22 and he played for the team without further incident through the 2011 season (Id.). He signed another contract with the team in March 2012 that contained a $7 million guarantee.
During the second game in 2012 he tore the tendon in his right quadricep (Id.). It was the last game of his career. That injury required surgery and he went on the injured reserve list. In July 2013 he was declared physically unable to perform. He continued to rehabilitate throughout 2013 but during that fall his left ankle began to bother him. A club physician “noted on Nov. 11, 2013 that Carriker had left ankle impingement syndrome” though Carriker only had treatment for his knee (Id.). Washington released him in the spring of 2014.
That same summer he began rehabilitation on his left ankle “but the impingement persisted” and he had surgery on the ankle on Dec. 5, 2014. He had a tryout with Atlanta in the spring of 2015 “but had to retire due to injuries” (Id.).
His football career over, Carriker turned to the courts for money. He filed a worker’s compensation case against the Rams based on the initial left ankle injury and his subsequent surgery in 2010. That case settled (Id.). In December 2014 he filed a second such case, this time against Washington, for the same left ankle, citing his second surgery (Id.).
The Maryland Worker’s Compensation Commission (“Commission”) held a hearing on March 3, 2016 (Id.). The Commission ruled on Jan. 20, 2017. It denied the claim because “he was diagnosed with left ankle impingement …on January 8, 2009” and was “operated on in connection that that diagnosis on January 18, 2010” and this was prior to the time that he was traded to Washington. Thus, “the proper employer on the date of disablement was the Saint Louis Rams” (Id.) (spelling in the original).
The Brief Jury Trial
Carriker appealed the Commission’s order to the Circuit Court for Prince George’s County, Maryland. The case took a mere two days. Carriker testified, as did an orthopedic surgeon for Carriker and one for the defense. During cross-examination Carriker admitted that he never experienced “a discrete ankle injury” while with Washington. He instead argued that the “repetitive, strenuous movements” “caused a new and separate occupational disease to his ankle” (Id., n 2). In Maryland, such injuries are called “repetitive stress injuries.” In California, those injuries are referred to as “cumulative trauma” (“CT”).
During the trial the judge asked counsel if they had reviewed the verdict form. They had, and Carriker’s counsel stated that if the jury found that Carriker had been injured while playing for Washington, it should state the date of the injury. The court agreed, but then Carriker’s counsel stated that this could give rise to an inconsistent verdict, so the court added more language to the verdict form. Both sides agreed to the change (Id. at 3/4).
And that is what happened. The jury returned a verdict sheet that stated that yes, Carriker had been hurt with Washington, but dated the injury back to his time in St. Louis. The judge re-instructed the jury and sent it back to deliberate. The jury expressed confusion so the judge re-instructed the jury for a second time. The court told the jury that they could not find “that this individual’s disease occurred while he was employed” by Washington but pick a date that “was prior to his employment” (Id.). The verdict was again sent to the jury to deliberate. Carriker’s counsel raised more concerns but the jury returned a verdict that stated that no, he had not “sustained an occupational injury arising out of his employment” in Washington (Id.).
Carriker filed a motion for a new trial, claiming that the court did not have jurisdiction over the second question because the Commission had not decided that question, that there was a procedural claim, namely that the court did not follow the appropriate procedures when faced with an inconsistent verdict, that the re-instruction was unjust and that the Court did not respond to the motion for judgment following the re-instruction. All of that went nowhere. After all, Carriker had participated in the process without raising these objections at the time and had thus waived those arguments. The Court also found the verdict to be consistent and not against the weight of the evidence so Carriker appealed the denial of his motion for a new trial (Id.).
The Appeal
Carriker’s appeal was based on various supposed “irregularities associated with the verdict sheet that denied him a fair trial” (Id.). The first of those was the inclusion of the second question, that which asked for the specific date of the injury. His problem, according to the CSA, is that he waived his objection because he had not objected before the jury retired to deliberate (Id.). Moreover, “the record clearly shows that the second question was added at Carriker’s counsel suggestion” and although counsel later objected to it, that came after the judge had re-instructed the jury (Id.).
His second issue was that the court below had not responded to his “unresolved” motion for judgment. That also went nowhere, and the CSA determined that the motion “was not preserved for review” and that it was harmless “because the jury’s initial inconsistent responses were not a verdict. Consequently, there was nothing for the court to reinstate” (Id. at 8). The Court noted that “Carriker’s counsel did not move for judgment at the conclusion of the evidence” so this argument “is not preserved for review” (Id.).
In fact, the failure to “resolve such a motion would have been harmless” (Id. at 9). In the first place, the court’s “subsequent actions communicated its refusal to grant the motion” (Id.). Furthermore, it was harmless because the initial verdict sheet was not a verdict so it could not be re-instated (Id.). Moreover, the court then re-instructed the jury in response to the “inconsistent” verdict (Id. at 10). Those instructions “did not unfairly emphasize one course over another” and it was clear that “the jury was free to change either of the inconsistent answers it initially gave” (Id.). The judge’s actions also complied with the state law that is to be applied when there is an inconsistent verdict. It requires the judge to notify counsel of the inconsistent verdict, and to solicit its input. That is what the court did, but the Court is not required to follow the parties’ suggestions (Id.). The CSA also found that the new instructions “were neutral” (Id. at 11).
Carriker was not done yet. He complained that the trial court “lacked jurisdiction over the issue of his date of disablement because the Commission ‘never decided the second question’” (Id. at 12). The CSA pointed out that the Commission had specifically found that Carriker “did not sustain an occupational disease arising out of and in the course of employment” with Washington, and that he “had this occupational disease prior to being hired by the Washington, DC NFL team” (Id.). Thus “the issue was properly before the circuit court” (Id.).
The Commission had in fact “made express findings” on “Carriker’s employment on the date of disablement: ‘The Commission further finds that the proper employer on the date of disablement was the Saint Louis Rams’” (Id. at 13) (emphasis and spelling in the original). Consequently, “Carriker’s argument that because the Commission failed to identify a specific date the Commission did not decide the date of disablement, is not correct” (Id.). Thus that “issue was properly before the circuit court” (Id.).
Finally, the Commission had dealt with determining “with which employer Carriker had sustained a disabling injury” (Id. at 14) (emphasis in the original). The lack of a specific date did not matter. “The Commission heard evidence on, and at least implicitly decided, the issue of Carriker’s date of disablement. Therefore, the second question was properly before the circuit court” (Id.). With that last sentence, the Court stated that the “JUDGMENT” IS AFFIRMED. APPELLANT TO PAY THE COSTS” (Id.) (capitalization in the original).
Conclusion
This decision appears somewhat strange at a distance. Carriker played 31 games for St. Louis and then played 34 games for Washington, yet the Maryland Worker’s Compensation Commission found that he was disabled in St. Louis and before he played in Maryland, but that he was not disabled in Maryland. It is impossible for us to know if that was due to a weak presentation to the Commission or a home-team decision. The same can be said about the result in the circuit court. Perhaps some expert testimony might have made a difference, but we will never know.
Postscript
Carriker’s case is a good illustration of why the NFL fought so hard to get worker’s compensation cases out of California whenever possible. Carriker played two or three times in in California for the Rams. The first time was in Oakland on Aug. 24, 2007. Later that year he played in San Francisco on Nov. 16. He may have played in San Francisco the following year. Prior to a change in California’s worker’s compensation law, Carriker could have filed a second worker’s compensation claim against the Rams after his career ended in 2014 even though he had settled his prior claim against the Rams. At one time playing a single game in California was enough for California to assert jurisdiction over a claim. Moreover, the first, settled claim was for a specific injury. The second claim would have been for CT at the end of his career and although the percentage of injury related to the original claim might have been deducted from his percentage of injury, it would not have prevented the claim and he would have in fact prevailed. This is exactly what happened in Injured Workers Fund of the State of Maryland, Petitioner v. Workers’ Compensation Appeals Board, Cleveland Crosby, Respondents, 82 Cal. Comp. Cas. 923, 2001 Cal. Wrk. Comp. LEXIS 5118, June 14, 2001. Crosby had settled his specific injury claim in Maryland against the Colts, but because he had played a single game in California for the Colts, that team was liable for his subsequent CT claim that included injuries that occurred playing for subsequent teams. Thus, prior to 2013, the Rams would have been liable for Carriker’s CT claim that would have included his injuries playing for Washington, starting with his torn tendon, but including the subsequent wear and tear on his left ankle.
Perhaps fed up with this reality, the law was changed. In 2012 the California Court of Appeal refused to allow Adrienne Johnson, a pro basketball player, to bring a CT claim in California based on playing a single game in the state, (FDIC v. WCAB, Adrienne Johnson, 221 Cal. App. 4th 1116 (2012)). In 2013, the California legislature placed further limitations on out-of-state professional athletes who desire to file worker’s compensation cases in California. The did so by amending California Labor Code Section 3600.5(c). That change is the legislators’ gift to professional teams across the country and the California Insurance Guarantee Association that has paid the claims of thousands of workers, including countless professional athletes, on behalf of workers compensation insurance companies that went out of business. Carriker could no longer bring his claims in California with its statutes that had so favored workers and retired athletes in particular. Instead, he had to go into Maryland state court where he lost.
Carriker’s case illustrates the new reality that worker’s compensation is no longer the ever-flowing fountain of gold for former NFL players that it once was.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern University School of Law. He is a Senior Writer for Hackney Publications.
