A Virginia state appeals court has affirmed the ruling of the Workers’ Compensation Commission that a former professional football player, who suffered an injury while playing for the practice squad of the Washington Redskins, was not entitled to wage loss benefits because he “failed to market his residual work capacity during the period at issue.”
Raymond J. Hamilton (the claimant) suffered a broken foot on Dec. 18, 2015, while serving as a player on the practice squad of the Washington Redskins. As a result of the injury, the claimant had two surgeries on his foot. He also underwent rehabilitation until mid-September 2016 when Dr. Robert Anderson “noted complete healing” at the site of the claimant’s second surgery and authorized him to “increase . . . activity in regard to” his fracture.
On Oct. 3, 2016, the claimant began working as a sales representative for Derby Products and Services, a Florida company that distributes chemicals for automotive maintenance, which was operated by the family of a former teammate.
The claimant submitted a claim to the Commission for wage loss benefits for the period between his injury on Dec. 18, 2015, and the date on which he began working for Derby Products. In defending against the claim for benefits, the employer argued in part that the claimant failed to prove that he marketed his residual work capacity.
At the hearing before the deputy commissioner, the claimant conceded that he was not “actively looking for work” between his injury on Dec. 18, 2015 and his return to work on Oct. 3, 2016, because he “thought [he] was going back to play football.” According to the claimant, during that time he was “consistently rehabilitating his right foot” and doing “everything in [his] power” to achieve his “goal [of] return[ing] to professional football.” The claimant acknowledged that although he was disabled from playing football after his injury, no doctor ever opined that he was “totally incapacitated from all [work] . . . [f]or any period,” even after surgery. He testified that while rehabilitating his foot, he “network[ed]” through the NFL Players Association (NFLPA), performed an externship with a sports memorabilia company, and “reach[ed] out to different universities [and] . . . companies.” The claimant’s job contacts log shows that over the relevant period of almost 10 months, excepting the job that he eventually took, the claimant contacted six potential employers.
The claimant further indicated that he did not register with the Virginia Employment Commission or investigate whether the employer had light-duty work available for him. Finally, the claimant said that after accepting that he would not be able to return to professional football due to his injury, he decided that “it was time for [him] to . . . find a way to [make] some money.” Consequently, he took the job with Derby Products.
Appearing before a deputy commissioner, the plaintiff claimed that he met the goal of the marketing requirement for the post-injury period through Oct. 2, 2016, by obtaining a job with Derby Products at the end of that period that “exceeded” his capacity.
The deputy commissioner denied the claimant’s request for temporary total disability. On request for review, the Commission agreed with the deputy’s assessment that the claimant had a duty to market his residual capacity because he was not totally disabled and failed to prove that he was undergoing extensive rehabilitation at the employer’s direction. It also accepted the deputy’s assessment that the claimant did not engage in a good faith effort to obtain work.
In its analysis, the appeals court wrote that “when determining whether an employee has made a reasonable effort to market his remaining work capacity, the trier of fact should ‘compare the efforts of the employee’ at issue to those of ‘a reasonable employee in the same or similar circumstances seeking suitable employment in good faith.’ Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 271, 380 S.E.2d 31, 5 Va. Law Rep. 2607 (1989).
“As the claimant conceded in the hearing before the deputy commissioner, he was disabled from playing football after his injury, but no doctor ever opined that he was “totally incapacitated from all [work]” for any period of time, even after his two surgeries. The claimant remained ambulatory and had significant residual capacity. He was able to travel among various locations in Iowa, Michigan, Texas, and Virginia. The claimant was a recent college graduate with a degree in communications and a certificate in entrepreneurship. During his period of partial physical disability, he completed an unpaid, three-week externship in which he worked with various divisions of a sports memorabilia company.
“The claimant engaged in physical rehabilitation for the duration of the period at issue, but the evidence in the record does not provide any indication that the time or effort required for this rehabilitation prevented him from seeking or accepting employment. During his three-week externship, for example, the claimant testified that he underwent rehabilitation three times per week for one to two hours per session. Additionally, except for the time immediately after his injury when he remained employed by the Redskins and underwent more intensive rehabilitation, no evidence in the record establishes that his physical rehabilitation required any greater time commitment than the six hours per week he devoted to it during his externship.
“Significantly, when the claimant testified before the deputy commissioner, he acknowledged that he did not ‘actively look for work’ before obtaining the job with Derby Products. The claimant did not ask the employer whether it had a light-duty job available for him when his practice squad contract ended and did not register with the Virginia Employment Commission.”
The court added that the claimant’s contention that the deputy commissioner “punished” him “for not being particularly good at [his] chosen career” and the Commission erred by “endors[ing]” that action “without comment” lacked merit.
“The claimant misperceives the Commission’s ruling,” it wrote. “It did not punish him for being a bad professional football player. Instead, it made a factual finding that the claimant’s failure to market was unreasonable, and it did so in part because he did not prove that his rehabilitation was so time consuming that it prevented him from simultaneously seeking and working in other employment.
“For these reasons, credible evidence in the record supports the Commission’s findings.”
Attorneys of Record: (for appellant) Benjamin T. Boscolo (Chasen Boscolo, on brief). (for appellees)
Benjamin J. Trichilo (Eric J. Berghold; McCandlish Lillard, P.C., on brief).
Hamilton v. Pro-Football, Inc.; Ct. App. Va.; Record No. 1091-18-4, 2019 Va. App. LEXIS 33 *, 2019 WL 543040; 2/12/19