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10/22/97 CORNELIUS ROSS v. WORKERS' COMPENSATION

October 22, 1997

CORNELIUS ROSS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (ARENA FOOTBALL LEAGUE), RESPONDENT



Appealed From No. A95-2606. State Agency, Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Smith. Senior Judge Mirarchi Dissents.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: October 22, 1997

Cornelius Ross (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) that reduced Claimant's benefits to reflect his status as a seasonal employee. This appeal raises two issues for review: whether the Board committed an error of law when it affirmed the WCJ's decision that Claimant was a seasonal employee and whether the Board erred in affirming the WCJ's decision that Claimant was not entitled to receive benefits until June 8, 1991, the date Claimant actually began to lose earnings.

The Arena Football League (Arena League) employed Claimant as a professional football player for the Pittsburgh Gladiators. Claimant signed an Arena League player agreement on May 25, 1990 to play arena football and to perform football-related activities through the end of October 1990. On June 1, 1990, Claimant injured his right toe at practice during the preseason training camp, which lasted approximately two weeks. Nevertheless, Claimant did not miss any regular season games. On August 3, 1990, Claimant again injured his toe, but this time it was during the one and only post-season game. Claimant thereafter filed a claim petition, and a notice of compensation payable was entered. Employer later filed a petition for review, asserting that Claimant should be considered a seasonal employee and that his benefits were incorrectly calculated.

Claimant also filed a petition for review asserting that the benefits he received were inaccurate because all of the wages he received for the 1990 season should have been considered in calculating his benefits; he requested that his lodging compensation be included in the calculation to increase his benefits. The WCJ denied Claimant's petition for review but granted Employer's petition and reduced Claimant's benefits based upon his classification as a seasonal employee. Benefits were calculated from June 8, 1991, the day the Arena League regular season began. Claimant appealed the WCJ's decision, and the Board affirmed, after which Claimant petitioned this Court for review. *fn1

I.

It is Claimant's contention that the Board committed an error of law when it affirmed the classification of his employment with the Arena League as seasonal. Claimant relies on Froehly v. Harton, 291 Pa. 157, 139 A. 727 (1927), where the Supreme Court held that employment would be considered seasonal only if the nature of the work could not be carried on during any other time of the year. In Froehly a dishwasher was injured while working for an amusement park. The amusement park argued that because it only opened for a few months during the year, the employee's benefits should be calculated as a seasonal employee. The Court in Froehly rejected this argument, stating that the act of dishwashing was not seasonal although the dishwasher's employment may have been temporary because of the nature of the establishment. When determining whether an occupation is seasonal, the Board must examine, among other things, the nature of the occupation and whether it can be carried on continuously throughout the year rather than for a fixed period of time. Id.

The comparison made by Claimant between the circumstances in his case and those in Froehly is flawed. Claimant argues that since football can be played at anytime during the year, his employment was not seasonal. *fn2 Although football technically can be played at any time of the year, the Arena League operates on a seasonal basis in that its games take place during a specified period of time. The 1990 Arena League contract defined the 1990 season as the League's training camp, including any and all exhibition games played; the regular season; play-off games; championship games; and any other games or contests engaged in before the end of October 1990. During the term of the contract, Claimant was prohibited from playing football other than for the Arena League without prior written consent.

Claimant, on the other hand, maintains that a team under the National Football League (NFL), the Canadian League or any other International League could have selected him once his season with the Arena League was completed. Yet, he offered no evidence to demonstrate that another football team offered him employment or sought his performance at periods outside of the Arena League contract. He draws his analogy in an attempt to lessen the impact of Station v. Workmen's Compensation Appeal Board (Pittsburgh Steelers Sports, Inc.), 147 Pa. Commw. 512, 608 A.2d 625 (Pa. Commw.), appeal denied, 532 Pa. 659, 615 A.2d 1315 (1992), where the Court held that the claimant was a seasonal employee because his football contract specified that performance would run from the preseason training camp through the regular season and that the claimant was precluded from playing football during the off-season.

The applicability of Station becomes more evident when the Court focuses on the opinion as a whole. Upon a close reading, the Court concludes that the circumstances in Station and those in the case sub judice are indeed similar. Station and Claimant are professionals who play football each year for a specified period of time. Although NFL and Arena League schedules are different, their football seasons last for specified and fixed periods of time. Both contracts entered into by the players contain a clause that prohibits them from engaging in other football during the season or off-season. Station and Claimant also understood that they were entitled to earnings only after they had played an actual game and that they would receive earnings only during the season. The Court in Station thus appropriately noted that extending the season of employment to include periods of inactivity or independent activity is an error that should be avoided. Accordingly, the WCJ's classification of Claimant as a seasonal employee was proper and in accordance with sound legal principle.

Claimant next argues that the WCJ erred in calculating his average weekly wage and determining his compensation rate as a seasonal employee under the formula prescribed in Section 309(e) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e). He objects to the application of Section 309(e) because it substantially reduced his average weekly wage and resulting compensation rate. Claimant argues, without merit, that Station is inapplicable because the WCJ applied Section 309(d) of the Act, 77 P.S. § 582(d), rather than Section 309(e) in computing the Claimant's average weekly wage. *fn3

The Court in Station made clear that Section 309(e) addressed the method for determining the average weekly wage for a seasonal employee, but it stated that the application of Section 309(d) was appropriate in that case because the Claimant was a rookie with no prior employment other than amateur performance in his trade, and the application of Section 309(d) more fairly ascertained his wages. Here, however, the first contract executed between Claimant and the Arena League was in 1988; contracts were ...


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