Pro-Football, Inc. v. Tupa

ZARNOCH, J. Appellants Pro Football, Inc. and Ace American Insurance Co. urge us to reverse a workers’ compensation award granted to appellee, Thomas Tupa, for an injury sustained while employed as a professional athlete in the National Football League (NFL). Pro Football, a Maryland corporation, is in the business of operating the Washington Redskins football team. Tupa was employed as a punter for the team from 2004 until 2006. While warming up for a Redskins preseason game at FedEx Field in Landover, Maryland in August of 2005, Tupa claimed that he injured his lower back when he landed awkwardly after a punt.

He sought immediate medical treatment and has not played football since. Tupa filed a claim with the Maryland Workers’ Compensation Commission on March 30, 2007 requesting temporary partial disability benefits for the period beginning March 1, 2006 and continuing to the present. Appellants contested Tupa’s claim, on three grounds: (1) Maryland did not have ⁴⁶⁷ jurisdiction over the claim, (2) appellee did not suffer an “accidental injury” arising out of and in the course of his employment, and (3) there was no causal connection between appellee’s August 19, 2005, injury and his ongoing disability. After a hearing held on March 3, 2008, Commissioner Patricia G. Adams found that Maryland, rather than Virginia, had jurisdiction and that Tupa’s disability was caused by an accidental injury suffered in the course of his employment.

The Commissioner ordered appellants to pay Tupa compensation for his temporary partial disability and related medical expenses. Appellants noted a timely appeal to the Circuit Court for Prince George’s County and requested a jury trial. The trial was held August 31 and September 1, 2009. Although they disagreed over the legal issues of whether jurisdiction over the claim was in Maryland or Virginia, the parties stipulated that there was no factual dispute underlying the question.

Consequently, the court determined as a matter of law that Maryland had jurisdiction. The jury found that appellee suffered an accidental injury, that his disability was causally connected to that actual injury, and that he was entitled to benefits for the time period from February 1, 2006 to February 28, 2007. QUESTIONS PRESENTED Appellants present the following issues for our review: 1. Whether the circuit court erred in determining that Maryland has jurisdiction over the appellee’s claim, when the appellee signed a contract agreeing to bring all workers’ compensation claims in the Commonwealth of Virginia? 2.

Whether the circuit court erred in affirming the Maryland Workers’ Compensation Commission’s finding that the appellee sustained an accidental injury arising out of and in the course of his employment on August 19, 2005? For the reasons set forth below, we affirm the circuit court’s decision. ⁴⁶⁸ FACTS AND LEGAL PROCEEDINGS In 2004, Tupa signed a four-year contract with Pro Football to punt for the Redskins. In January of 2005, prior to the start of the 2005-2006 season, Dr. Thomas Schuler of the Virginia Spine Institute examined Tupa to assess his complaint of mild lower back pain. Dr. Schuler concluded that Tupa had “significant underlying spondylosis and stenosis” with some evidence of nerve problems in his right leg, but the physician did not feel that it would affect Tupa’s ability to play the next season, given that he had successfully completed the entire 2004-2005 season with the same condition.

Dr. Schuler stated that he expected appellee “should be able to play one or two more seasons before this catches up with him.” The injury underlying this claim happened during pre-game warm-ups on August 19, 2005 at FedEx Field in Landover. According to appellee, he was about three quarters through his regular warm-ups when he landed awkwardly after a punt. He felt a sharp pain in his lower back, which he described as a “jarring” sensation. He immediately sought medical attention and was placed on a Medrol Dosepak according to the instructions of Dr. Schuler.

The physician evaluated appellee two days later. He noted that appellee reported “95% back pain” and some residual numbness and tingling in the left foot. After reviewing an MRI, Dr. Schuler observed “significant progression of the disc degeneration ... [t]hat clearly progressed significantly from a year ago with much more collapse.” He also found “subarticular stenosis of a mild nature ... with mildly enlarged facet joints.” Dr. Schuler saw Tupa again the next day, August 23, 2005, and reviewed recent pelvic and spinal x-rays which showed “significant spurring anteriorly ... with a slight retrolisthe-sis.” Dr. Schuler concluded that Tupa had significant disco-genic pain and would be a good candidate for surgery, if necessary. Regarding his ability to play in the NFL, Dr. Schuler stated that “he has to get this calmed down” first and that he would consider an intradiscal steroid injection “as a last ditch effort to get him back to a functional status.” ⁴⁶⁹ Tupa’s pain had not improved at his next evaluation on September 2, and the numbness and tingling sensation in his feet persisted.

Dr. Schuler stated that they planned to give it some more time to improve with nonoperative care. He concluded 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.” Appellee’s condition remained the same throughout the 2005 season, with little improvement despite treatment that included medication and physical therapy. At his end of season evaluation in January 2006, Dr. Schuler concluded that Tupa suffered from “a marked disc collapse ... of approximately 90% with anterior, posterior, and lateral spurring [and] [r]e-trolisthesis ... at that level” as well as “disc space narrowing of about 30%.” Dr. Schuler reported that Tupa had reached his maximum medical improvement without pursuing major spinal surgery “in the form of a stabilization and fusion of [the affected vertebrae] and that even with surgery, Tupa would not likely be able to return to the NFL. The doctor noted that they had talked about the issue extensively and that Tupa “understood] the risks of surgery versus no surgery, and participation and non-participation in the NFL.

He agrees ... he is not a candidate for the NFL at this time.” Dr. Schuler also stated that Tupa’s choice to treat the injury nonoperatively was appropriate. An independent medical evaluation was completed by Dr. Michael Franchetti on October 12, 2006. Dr. Franchetti concurred that Tupa had reached maximum medical improvement. He concluded that “[Tupa’s] back injuries sustained on August 19, 2005 are, to within a reasonable degree of medical certainty and probability, a career-ending injury for the patient.” As far as permanent impairment, Dr. Franchetti found that appellee attained 33% whole person impairment, 1 of which, 28% is “directly related to his injuries of August 19, ⁴⁷⁰ 2005” and 5% could be attributed to his preexisting degenerative condition.

Another medical evaluation was completed by Dr. Charles Jackson on December 11, 2006. Pro Football submitted his report as evidence at the circuit court trial. In Dr. Jackson’s opinion, Tupa could not have completed the 2005 season even without the “incident” during preseason. He concluded that the August 19 injury “manifest[s] an ongoing degenerative spine condition which shortened Tupa’s career, and to a degree unknown was aggravated by years of [punting.] The kicking incident did not cause or precipitate damage to [or] materially change the degenerative condition which ended his career.” Dr. Jackson also disagreed with Dr. Franchetti’s assessment, finding only “10% impairment of the whole person or 24% impairment of the left lower extremity.” Tupa has continued to treat his condition non-surgically and has not returned to the NFL.

He is currently employed as the Recreation Director for Bucksville, Ohio, a sedentary position that he has held since February of 2006. Pro Football paid Tupa the rest of his contracted salary for the 2005-2006 season, which ended in February 2006. He testified in the circuit court that he has to take pain medication in order to sleep through the night; otherwise, the pain wakes him up whenever he rolls over. Tupa continues exercising in a swimming pool a few times a week.

He testified that he will eventually need back surgery, but is delaying the procedure as long as possible because he believes “the longer you wait the better the procedure gets.” We will discuss additional facts below. DISCUSSION I. Jurisdiction Appellants first argue that Maryland does not have jurisdiction over the workers’ compensation claim because (1) Tupa is not a “covered employee” under § 9-203(a)(l) of the Labor and Employment Article (“LE”) of the Maryland Code ⁴⁷¹ (1991, 2008 Repl.Vol.), and (2) his contract contains a forum selection clause which divests Maryland of jurisdiction. At trial, there were no disputed questions of fact related to jurisdiction. The parties submitted a set of stipulated facts to the circuit judge, who determined as a matter of law that Maryland had jurisdiction over the claim.

We evaluate the legal correctness of the court’s conclusion under a de novo standard of review. Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006). For the reasons stated below, we find that Maryland has jurisdiction over Tupa’s workers’ compensation claim. A. Tupa Is A Covered Employee Under LE § 9-203, individuals are generally “covered employees” for purposes of the Workers’ Compensation Act when they are working in Maryland for their employer.

Employees are not covered when they are employed “wholly outside of this State.” LE § 9-203(c). It is undisputed that Tupa’s injury occurred while he was working at FedEx Field in Landover. He was expected to play eight regular season games and two preseason games in Maryland each year. Therefore, it clearly cannot be said that the claimant was employed to do work entirely and wholly outside of Maryland.

See McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 584-85 , 826 A.2d 474 (2003). Appellants instead argue that Tupa was employed primarily in Virginia and worked in Maryland only intermittently. Where an individual works in Maryland intermittently or temporarily, the employee may be excluded from coverage under LE § 9—203(b)(1) which provides: An individual is not a covered employee while working in this State for an employer only intermittently or temporarily if: (i) the individual and employer make a contract of hire in another state; (ii) neither the individual nor the employer is a resident of this State; ⁴⁷² (in) the employer has provided workers’ compensation insurance coverage under a workers’ compensation or similar law of another state to cover the individual while working in this State; (iv) the other state recognizes the extraterritorial provisions of this title; and (v) the other state similarly exempts covered employees and their employers from its law. At trial, the parties stipulated the following facts with respect to jurisdiction: Pro Football, Incorporated, is a Maryland corporation.

It is engaged in the business of operating the Redskins. The Redskins are a franchise in the NFL. The Redskins’ principal business is fielding a team to play in NFL games. All of the Redskins home games are played in Maryland.

The Redskins employ players for the principal purpose of competing in NFL games. The incident occurred at FedEx Field in Landover, Maryland. The Redskins practice in Virginia. Practice for players is designed to prepare them to play in games.

The regular or casual/intermittent nature of an individual’s employment in Maryland is a fact-dependent determination that must be made on a case-by-case basis. In Hodgson v. Flippo Construction Co., 164 Md.App. 263 , 883 A.2d 211 (2005), 2 we identified the following factors relevant to this determination: “where the claimant was hired, whether the employment ‘arrangement contemplated a regular presence’ in the particular jurisdiction, the ‘nature of the employer’s work,’ the ‘scope and purpose of the hiring,’ the ‘duration of the employment,’ the ‘consistency’ of the claimant’s work in the ⁴⁷³ particular jurisdiction, and representations made by the employer as to where the claimant would be working.” Id. at 269 , 883 A.2d 211 . (internal citations omitted). When the employment is transient in nature, such as trucking or traveling sales, the dispositive factor is whether the employment in Maryland is regular when compared to the employment outside of Maryland.

McElroy Truck Lines, 375 Md. at 594 , 826 A.2d 474 . The comparison “is between the State where the employment has been found to be regular and each of the other locations to which the employment has a relationship.” Id. Considering the stipulated facts, we find that Tupa’s employment in Maryland was regular and not intermittent or temporary. Tupa was hired in Virginia, but the purpose of his employment was to play in professional football games at FedEx Field in Maryland and at various other stadiums around the country.

We recognize that Tupa likely spends more time at the practice facility in Virginia than he spends playing in games at FedEx Field or elsewhere. As Hodgson suggests, however, the inquiry requires more than simply tallying up the quantity of time the employee spends in each jurisdiction. Here, it is clear that the purpose of Tupa’s employment was to play in games, not to practice. All of Tupa’s time in Virginia, whether practicing or attending team meetings, was geared towards improving his performance at the games.

By way of contrast, a player signed to the practice squad would work entirely in Virginia because the purpose of a squad member’s contract is to practice in Virginia. Tupa’s employment in Maryland was consistent and predictable: eight regular season and two pre-season games every year. 3 This can easily be distinguished from the case of Moore v. Clarke, 171 Md. 39, 54 , 187 A. 887 (1936), where a professional jockey riding in a Maryland horse race was found to be a casual employee because he was hired by different ⁴⁷⁴ horse owners on a race-by-race basis, and had no obligation to ride the owner’s horses in future races. See also East v. Shelly, 207 Md. 537, 539 , 114 A.2d 822 (1955) (same result where two percent of the jockey’s races were ridden for the same owner, but he was still employed on a race-by-race basis with no continuing obligation). Here, Tupa signed a contract obligating him to perform in all of the Redskins’ games for four years, as long as he was physically able to do so.

In sum, Tupa was regularly employed in Maryland because he had an ongoing relationship with his employer, a Maryland corporation, for the purpose of playing in football games, more of which took place in Maryland than in any other state. 4 Because we conclude that Tupa’s employment in Maryland was regular and not incidental, LE § 9-203(b)(l) does not apply. Although we need not decide whether Tupa would otherwise be excluded under Section 9-203(b)(l), we note that the statute requires that “neither the individual nor the employer [be] a resident of this State.” LE § 9-203(b)(l)(ii). Pro Football is incorporated in Maryland and is therefore domiciled in this state. The corporation also conducts most of its revenue-generating activities, professional football games, in Maryland.

Therefore, Pro Football is a Maryland resident and, even if we concluded that Tupa’s employment in Maryland was only incidental, he would not be excluded from coverage under the Maryland Workers’ Compensation Act. B. The Forum Selection Clause Appellants also argue that, regardless of whether Tupa is covered by the Maryland Worker’s Compensation Act, the forum selection clause in his contract requires him to file his claim in Virginia. Tupa’s contract with Pro Football contains the following provision: ⁴⁷⁵ JURISDICTION. The parties hereto agree that this Player Contract shall for all purposes be deemed to have been negotiated and executed in Virginia; that should any dispute, claim or cause of action (collectively “dispute”) arise concerning rights or liabilities arising from the relationship between the Player and the Club, the parties hereto agree that the law governing such dispute shall be the law of the Commonwealth of Virginia, and that the exclusive jurisdiction for resolving such dispute in the case of Workers’ Compensation is the Virginia Workers’ Compensation Commission, and in the case of Workers’ Compensation claims the Virginia Workers’ Compensation Act shall govern.

The Supreme Court has observed that there is “a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 631 , 105 S.Ct. 3346 , 87 L.Ed.2d 444 (1985) (citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 , 92 S.Ct. 1907 , 32 L.Ed.2d 513 (1972); Scherk v. Alberto-Culver Co., 417 U.S. 506 , 94 S.Ct. 2449 , 41 L.Ed.2d 270 (1974)). In Gilman v. Wheat, First Securities, Inc., the Court of Appeals set forth the following guidelines for enforcement of forum selection clauses in Maryland: (1) [A] forum-selection clause is presumptively valid and enforceable and the party resisting it has the burden of demonstrating that it is unreasonable, (2) a court may deny enforcement of such a clause upon a clear showing that, in the particular circumstance, enforcement would be unreasonable, and (3) the clause may be found to be unreasonable if (i) it was induced by fraud or overreaching, (ii) the contractually selected forum is so unfair and inconvenient as, for all practical purposes, to deprive the plaintiff of a remedy or of its day in court, or (iii) enforcement would contravene a strong public policy of the State where the action is filed. 345 Md. 361, 378 , 692 A.2d 454 (1997). Here, appellee contends that enforcement of the forum selection clause would contravene a strong public policy of ⁴⁷⁶ Maryland, as stated by LE § 9—104(a)(1). 5 That statute provides: [A] covered employee or an employer of a covered employee may not by agreement, rule, or regulation: (i) exempt the covered employee or the employer from a duty of the covered employee or the employer under this title; or (ii) waive a right of the covered employee or the employer under this title. Any agreement that violates this provision is void.

LE § 9-104(a)(2). In Gilman, the plaintiff challenged the validity of a forum selection clause that required suits to be filed in Virginia, where class actions were not permitted, because his economic damages were too small for an individual action to be practicable. 345 Md. at 367 , 692 A.2d 454 . The Court of Appeals held that enforcement of the clause did not violate Maryland’s public policy, which permitted class actions and the aggregation of individual plaintiffs’ claims in order to reach the jurisdictional threshold of the circuit court. Id. at 380 , 692 A.2d 454 .

While recognizing that Maryland’s laws demonstrated a public policy in favor of class actions, the Court reasoned that “[t]he public policy does not extend any further----Maryland law does not mandate such actions; it does not require that a plaintiff who could file such an action do so, in lieu of pursuing an individual action[.]” Id. The public policy set forth in the Workers’ Compensation Act is clearly different from that in Gilman—the very purpose of Section 9-104 is to ensure that employers cannot contract out of coverage. Moreover, as stated by Professor Larson, “the rule in workers’ compensation is dictated by the overriding consideration that compensation is not a private matter to be arranged between two parties; the public has a profound interest in the matter which cannot be altered by any individu ⁴⁷⁷ al agreements.” See 9 Larson, Larson’s Workers’ Compensation § 143.07(2010). Although Maryland courts have not directly ruled on the issue, several cases have suggested that parties cannot contract to avoid application of Maryland’s workers’ compensation law.

In McElroy, the Court of Appeals gave little weight to the employment contract’s forum selection clause in determining that the claimant was covered by the Maryland workers’ compensation statute. 375 Md. at 578 n. 2, 594-95, 826 A.2d 474 . Earlier, in Kacur v. Employers Mutual Casualty Company, the Court cited approvingly Professor Larson’s statement that an “‘[e]xpress agreement between employer and employee that the statute of a named state shall apply is ineffective either to enlarge the applicability of that state’s statute or to diminish the applicability of the statutes of other states.’ ” 253 Md. 500, 509 , 254 A.2d 156 (1969) (quoting 3 Larson, Larson’s Workers’ Compensation, § 87.71 (1968)). Many other states share this view. 6 See Hartford Accident & Indem. Co. v. Welker, 75 Ga.App. 594, 597, 44 S.E.2d 160 (1947); Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652, 655-56 (Mo.App.1986); Gotkin v. Weinberg, 2 N.J. 305, 308 , 66 A.2d 438 (1949); Giltner v. Commodore Contract Carriers, 14 Or.App. 340, 344-45 , 513 P.2d 541 (1973); Robert M. Neff v. Workmen’s Comp.App. Bd., 155 Pa.Cmwlth. 44 , 624 A.2d 727 (1993); Jenkins v. Sal Chem.

Co., 167 W.Va. 616, 618 , 280 S.E.2d 243 (1981). 7 We agree with the circuit court that the forum selection clause in Tupa’s contract would contravene Maryland’s public ⁴⁷⁸ policy, as stated in LE § 9-104. See Gilman v. Wheat, First Sec., 345 Md. at 378 , 692 A.2d 454 . Therefore, the circuit court did not err in finding that Maryland had jurisdiction over Tupa’s workers’ compensation claim.

II

Whether Appellee Sustained A Compensable