Football Player’s Injury While Warming Up Was Accidental Injury During Employment Even if Not the Result of Unusual Event

A professional football player filed a claim with the Maryland Workers' Compensation Commission requesting temporary partial disability benefits. The Commission awarded the player temporary partial disability benefits and related medical expenses, and the employer appealed. The Court of Appeals affirmed.


In this case, Thomas Tupa and Pro–Football, Inc., trading as (t/a) the “Washington Redskins,” entered into a four-year National Football League (NFL) employment contract for Tupa to play football for Pro–Football, Inc. At that time, Mr. Tupa was “punter.” Pro–Football, Inc., t/a the Washington Redskins, is incorporated in Maryland and owns its stadium, named “FedEx Field,” which is located in Landover, Prince George's County, Maryland. All of Pro–Football, Inc.'s “home” football games are played at FedEx Field in Maryland, and the players' practice or “warm-up” just before the games also occurs at FedEx Field. Pro–Football, Inc., has its headquarters and practice facility in Virginia, and most practices are at the Virginia facility. These practices are for the purpose of getting the players ready to play well at the football games.


In January 2005, Mr. Tupa complained of mild lower back pain, and he was examined by Dr. Thomas Schuler of the Virginia Spine Institute. At the time, Dr. Schuler determined that Tupa suffered from “significant underlying spondylosis and stenosis,” a condition which the doctor did not believe would effect Mr. Tupa's ability to play during the 2005–2006 football season, particularly because Mr. Tupa had successfully completed the 2004–2005 season. The doctor concluded that Mr. Tupa “should be able to play one or two more seasons” before the condition greatly impacted him.


On August 19, 2005, at FedEx Field, during his pre-game warm-up for a pre-season game, Mr. Tupa landed awkwardly after a punt and felt a sharp pain in his lower back. He described the pain as a “jarring” sensation, sought immediate medical attention, and received medication.


On August 22, two days later, Mr. Tupa again visited Dr. Schuler, who noted that Mr. Tupa was reporting “95% back pain.” An MRI disclosed “significant progression of the disc degeneration ... [t]hat clearly progressed significantly from a year ago with much more collapse.” When Mr. Tupa saw Dr. Schuler again on August 23, Dr. Schuler concluded that Mr. Tupa had significant discogenic pain and could possibly be a good candidate for surgery. The doctor also determined that Mr. Tupa was not able to continue playing professional football until he was able to get his condition and the related pain “calmed down.” The doctor recommended intradiscal steroid injection “as a last ditch effort to get [Mr. Tupa] back to a functional status.”


When Mr. Tupa next saw the doctor on September 2, 2005, Mr. Tupa reported that the pain had not subsided and that he continued to have numbness and tingling sensations in his feet. Dr. Schuler recommended giving Mr. Tupa's condition more time to heal naturally before proceeding with an operative solution. Dr. Schuler also noted that “the patient is still disabled from participating in the NFL, and he is still working aggressively in his rehabilitation to get back to a functional pain-free status.”


Despite a treatment regime that included medication and physical therapy, Mr. Tupa's condition did not improve. In January 2006, during an end of season evaluation, Dr. Schuler noted that Mr. Tupa suffered from “a marked disc collapse ... of approximately 90%.” Dr. Schuler concluded that Mr. Tupa's condition would not improve further without major spinal surgery, and that, even if Mr. Tupa did have surgery, it would be unlikely that he would ever be able to play professional football again. After discussing his options, along with the related risks, with Dr. Schuler, Mr. Tupa decided to forego surgery. Dr. Schuler noted that Mr. Tupa “under[stands] the risks of surgery versus no surgery, and participation and non-participation in the NFL. [Mr. Tupa] agrees ... he is not a candidate for the NFL at this time.”


On October 12, 2006, Mr. Tupa sought an independent medical evaluation from Dr. Michael Franchetti. Dr. Franchetti concluded that the back injury sustained by Mr. Tupa on August 19, 2005, was “within a reasonable degree of medical certainty ... a career-ending injury for” Mr. Tupa. Another doctor, Dr. Charles Jackson, evaluated Mr. Tupa on December 11, 2006, and he likewise concluded that Mr. Tupa's professional football career would be shortened, but he disagreed with the other doctors' assessment that the back injury was caused by Mr. Tupa's professional football activities. Rather, he concluded that the August 19th injury “manifest[ed] an ongoing degenerative spine condition which ... was aggravated by years of [punting].” He determined that “[t]he kicking incident did not cause or precipitate damage to [or] materially change the degenerative condition which” caused the end of Mr. Tupa's career.


Mr. Tupa has not sought surgical intervention to address his back pain. He no longer plays professional football, but is currently employed in a sedentary position, which he has held since February 2006. Mr. Tupa was paid by Pro–Football, Inc., pursuant to his contract, for the remainder of the 2005–2006 season. Although Mr. Tupa still suffers from pain and takes medication to address it, he acknowledged that he believes that he will eventually need back surgery, although he is delaying the procedure for as long as possible.


Mr. Tupa filed a claim for workers' compensation benefits with the Maryland Workers' Compensation Commission on March 30, 2007. The petitioners, Mr. Tupa's employer and its insurer, challenged Mr. Tupa's claim on the issues of “jurisdiction,” whether the injury was an accidental injury, and whether his disability was casually related to the injury in August 2005. The Commission decided Mr. Tupa had sustained an accidental injury arising “out of and in the course of [his] employment,” and that Mr. Tupa's disability was causally related to his accidental injury. Mr. Tupa was awarded temporary partial disability benefits and the petitioners were ordered to pay the related medical expenses. Mr. Tupa's employer and its insurer appealed.


On appeal, the court noted its explicit rejection of the principle in an earlier case that an “accidental injury” must arise from an unusual or unexpected occurrence. “[W]hat must be unexpected, unintended, or unusual is the resulting injury and not the activity out of which the injury arises.” The appeals court held Mr. Tupa's injury occurred “out of and in the course of [his] employment.” He was warming up for a game when he landed awkwardly and thereafter sought immediate medical treatment. Ample evidence was presented to show that Mr. Tupa suffered a compensable accidental injury during the course of his employment, even if his injury was not produced by some unusual and extraordinary condition or happening in the employment.


See: Pro-Football, Inc. v. Tupa, 2012 WL 3588820 (Md.  Aug 22, 2012) (not designated for publication).