By Jeff Birren, Senior Writer
Introduction
Emmanuel Acho was injured practicing with the Philadelphia Eagles in 2015. He had surgery, but never returned to his pre-injury level of performance. Thereafter, Acho successfully sought workers’ compensation benefits from the Eagles, despite consistent opposition. Pennsylvania’s intermediate appeals court brushed aside every argument and affirmed the award in Acho’s favor (Philadelphia Eagles v. Emmanuel Acho (Workers’ Compensation Board), Unreported Opinion, Commonwealth Court of Pennsylvania (2-3-23)). This case is almost a text-book example of a misguided appeal.
Background
Acho was born in Nigeria and played college football at the University of Texas. He won several awards there and graduated in 2011. Later, Acho was drafted in the sixth round by the Cleveland Browns in the 2012 draft, but he missed the entire season due to a leg injury. Next, he was traded to the Philadelphia Eagles in 2013. Acho was released prior to the 2013 season and subsequently joined the New York Giants’ practice squad. The Eagles then signed Acho to their active squad in October of 2013. He played sparingly in several games before being demoted to their practice squad. The 2014 season was similar. Acho was signed, released, put on the practice squad, and then elevated to the regular squad during the regular season.
By 2015, Acho was back with the Eagles. On August 11 “while practicing” he “injured his thumb,” but “nevertheless, continued to play football, including a preseason game” on August 22 of that year. The next day, however, Acho “fractured the same thumb during practice.” He “completed practice,” but had surgery on the thumb afterwards. Acho “could not participate in any physical activity for approximately three weeks after the surgery.” He was released immediately after the surgery and signed a three-week injury settlement with the Eagles. The pins were later removed from his thumb and although the surgeon cleared him to play, he “continued to have pain and weakness in the thumb.”
In November 2015, the Eagles re-signed him, but his “thumb remained symptomatic.” Acho did not play in any games and was released from the team. He “attempted to try out for other teams but found he could not play at his pre-injury level.” Acho “was not offered any positions” and never “played professional football again.”
Acho returned to Texas where he continued “to do exercises and therapy.” In 2017, he received a master’s degree in sports psychology from the University Texas. Two years later, on February 20, 2019, Acho saw Dr. Greg Vagner, who reviewed his medical records including an MRI and ordered a CT scan of Acho’s thumb. The results “indicated some displacement within the joint and mild to moderate post-traumatic osteoarthritis.” Dr. Vagner testified that the displacement and arthritis were related to the August 2015 injury; that the post-traumatic arthritis “more than likely resulted in pain and decreased function in his thumb”; that “ongoing treatment, potentially to include surgery, would be required”; and these injuries “interfere with an NFL player’s ability to use his hand.”
After his final release, Acho began working as a part-time football analyst for the University of Texas network. He joined ESPN fulltime in 2018 and in 2020, he began working for Fox. Later that same year, Acho published his first book and received the first of two Emmy Awards. In 2022, he gave the University of Texas commencement address.
Workers’ Compensation Filings
In the relevant matter, Acho filed two claims. The first one related to the August 23, 2015, injury. He also filed a “Petition to Reinstate and Review Benefits related to the August 11, 2015, injury.” The Eagles responded by filing “Petitions to Terminate Benefits with regard to both injuries.” The cases were ultimately heard together before the Workers Compensation Judge (“WCJ”), who ruled for Acho.
The WCJ “credited” both Acho’s and “Dr. Vagner’s testimony” that the thumb injury “rendered him unable to perform his pre-injury linebacker job until he was found by the Eagles’ expert, Dr. Leatherwood, to be fully recovered as of September 12, 2019.” The WCJ awarded Acho complete disability benefits until November 10, 2015. The WCJ also “granted Claimant partial disability benefits until September 12, 2019” and gave the Eagles a three-week credit for the prior injury settlement. The WCJ granted the Eagles’ petition to terminate benefits as of September 12, 2019. Meanwhile, Acho “withdrew his petition related to the August 11, 2015, injury.”
Not satisfied, the Eagles appealed both awards to the Workers Compensation Board. The Board, like the WCJ, consolidated the cases. The Eagles insisted that the decision was “not based on substantial, competent evidence, was not reasoned, and was arbitrary and capricious.” They also asserted that the WCJ did not acknowledge that Acho was “capable of playing football within three weeks of his injury and accepted incompetent medical testimony from Dr Vagner in awarding benefits.” This may have caused the Board to yawn, since it ultimately affirmed the WCJ ruling. Nevertheless, the Eagles were not yet done and appealed to the Commonwealth Court.
Pennsylvania Workers’ Compensation
The Commonwealth Court is one of the state’s two intermediate courts of appeal. It is primarily concerned with appeals involving state and local governments, state regulatory agencies, including workers’ compensation appeals, and serves as the trial court in cases filed by or brought against the state.
Pennsylvania, like all other states, enacted a workers compensation statute to provide limited protection to injured workers. Employees gave up the right to sue their employers in tort for most then-existing job-related injuries, and in return, got a system that was designed to provide benefits to injured employees.
Pennsylvania’s Workers’ Compensation Act was enacted on “June 2, 1915, P.L. 736 as amended, 77 P.S. § 1 et seq” (Dumas v. W.C.A.B. et al, 423 A. 2d. 476, (12-18-80)). Dumas recognized that the provisions of the Act “are remedial in nature and are to be liberally construed, with borderline interpretations resolved in favor of the injured employee.” Similar language can be found in workers’ compensation statutes across the country. Thus, from the start, the Eagles attempts to deny benefits here were likely doomed.
The Eagles’ Appeal
Initially, the Eagles only presented a “single question for review, namely, whether the Board erred in affirming the WCJ’s decision, as such [d]ecision was not based on substantial, competent evidence, was not reasoned, and was arbitrary and capricious.” However, their brief “then goes on to include” “three subsidiary issues in the argument section of its brief.” The Court considered the subsidiary issues, though it did not have to do so. The Eagles were not penalized for this gaffe, but it was certainly not a good way to begin convincing an appellate court that others made errors.
The Court’s Analysis
The Court noted that all the issues in the Eagles’ appeal “relate in some form to the WCJ’s consideration of the evidence and fact findings.” It reminded the Eagles that the WCJ is “the ultimate fact-finder in workers’ compensation cases” including “questions of credibility and evidentiary weight.” This “is unquestioned. The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part.” Therefore, the Court determined it is “bound by the WCJ’s credibility determinations.”
Consequently, “it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made.” The Court’s role is to examine the record to determine if there was “sufficient evidence to support” those findings. If so, “the findings must be upheld.” Finally, it “must review the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced from the evidence.”
The Court cited case authority that stated neither “the Board nor the Court may reweigh the evidence or the WCJ’s credibility determinations.” The relevant statute “does not permit a party to challenge or second-guess the WCJ’s reasons for credibility determinations.” Thus, unless such determinations were “arbitrary or capricious,” an appeal will be rejected. As a result, Acho had virtually an insurmountable lead at that point.
The Eagles’ Specific Evidentiary Challenges
The first argument made by the Eagles was that award of benefits from August 23 to November 10, 2015 “was not based on substantial, competent evidence.” The Court’s response was succinct, stating simply “We disagree.” Acho initially stopped playing after the August injury and subsequent surgery. When he re-signed with the Eagles in November, he “still experienced a constant aching in his thumb, and then practiced with a heavily bandaged hand.” Acho “did not play in any games during this period” and was released sixteen days later.
The Eagles insisted that this pattern was also true in the prior two years, but the Court reminded the Eagles “that Claimant played in regular season games in both of those seasons.” The 2015 season “release was thus clearly not routine or based on any past practice but rather was due to Claimant’s injury and perceived inability to play.” There was consequently “substantial evidence” to support the findings according to the Court, and “the WCJ did not err in awarding payment of total disability benefits for the period between August 23, 2015, and November 10, 2015.”
November 10, 2015 through September 12, 2019
The Eagles next attempt to score on appeal was an assertion that the award for this period was “arbitrary and capricious.” They argued that they had cleared Acho to play, that he unsuccessfully sought to sign with other teams, and that Acho “failed to support his disability claims with any competent evidence.” This argument, however, also failed. The Court very matter-of-factly stated, “Again, we disagree.”
The Eagles had cleared him to play in August 2015, but argued that Acho had “ongoing pain, tenderness, and related limitations in his ability to play.” Furthermore, no other teams signed him then, or after his November release. Thus, the Eagles maintained that “it cannot merely be ‘assumed’” that the failure to sign with other teams was due to his injury. The Court instructed the Eagles that “no ‘assumption’ is necessary.” This argument “largely discounts or ignores entirely” Acho’s “pre-injury and prospects in the NFL” and the WCJ was free to find that he played at a “high level prior to the injury.” The Eagles’ “suggestion to the contrary is simply not accurate.”
But, the Eagles were not done restating the evidence. Their “characterization of Claimant’s complaints of pain and related disability as ‘not borne out by any evidence’” required the Court to remind the Eagles of how much evidence was in the record that supported the WCJ’s findings. The Eagles’ “alternative explanations” did not create error. The Court found “this issue to be without merit.” Moreover, during this period, the WCJ had not awarded Acho total disability benefits, but merely partial disability benefits based on his interim employment as a broadcaster.
The Final Desperation Play
Looking for a miracle, the Eagles then assaulted the credibility of Dr. Vagner. The Court thought that these attacks “mischaracterize the evidence and the WCJ’s findings.” Dr. Vagner first examined Acho in 2019, but he testified that he reviewed and relied upon the prior medical records while coming to his conclusions. He did not give “an exact date” of the current condition, but “he nevertheless corroborated Claimant’s claims”.
The WCJ found him to be “uniquely qualified to comment on” these issues. Dr. Vagner is an orthopedic surgeon “with added credentials as a hand specialist and the hand surgeon for the University of Texas and Baylor University athletic departments.” Consequently, the Court determined that the WCJ did not err in finding his testimony to be more credible than Dr. Leatherwood. The Court was unimpressed with the argument that Dr. Vagner only examined Acho once, especially since the Eagles “expert” examined Acho “on only a single occasion approximately seven months after Dr. Vagner’s examination.”
Grasping at crumbs, the Eagles maintained that Dr. Vagner’s opinions were not unequivocal. “We again disagree,” concluded the Court. This argument also challenged findings that were solely in the purview of the WCJ, who found that Dr. Vagner “unequivocally supports the award of benefits in this matter.” This is a long way from finding that Dr. Vagner was “equivocal.” The Court noted that “this finding is consistent with both Dr. Vagner’s and Claimant’s testimony.” Dr. Vagner testified that he “formulated” his opinions “within a reasonable medical certainty.” The WCJ also noted that the Eagles’ expert disagreed with Dr. Vagner, but found Dr. Vagner to be more credible. This did not mean that he “arbitrarily or capriciously” disregarded that doctor’s testimony.
The Court ended by stating that the WCJ’s decision was “free of errors of law and violations of constitutional rights.” It was “supported by substantial evidence” and “did not arbitrarily or capriciously disregard any competent evidence.” With that the Court affirmed the Board’s decision.
Conclusion
The Eagles’ appeal was not worth the paper it was printed on, but rather it cost far more. Under the best of circumstances challenging a finding of compensable benefits is a tough row to hoe, yet at times there is a legitimate basis for it. Challenging findings that are left by statute to the WCJ have little chance of prevailing. Here, most of the benefits at issue were partial, temporary benefits so perhaps there was a hidden agenda. One can only wonder if Eagles’ ownership was informed of the dubious nature of the appeal, and how it would make the team look to knowing eyes. Consequently, other teams should take note when similar instances arise with their players.
