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Pittsburgh Steelers Sports, Inc. v. Workers' Compensation Appeal Board (Trucks)

Commonwealth Court of Pennsylvania

January 3, 2020

Pittsburgh Steelers Sports, Inc., Petitioner
v.
Workers' Compensation Appeal Board (Trucks), Respondent

          Argued: October 2, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

          OPINION

          P. KEVIN BROBSON, JUDGE

         Petitioner Pittsburgh Steelers Sports, Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated August 16, 2018. The Board affirmed an order of Workers' Compensation Judge John McTiernan (WCJ McTiernan), which granted Anthony H. Trucks's (Claimant) claim petition and awarded temporary total disability benefits pursuant to Section 309(c) of the Workers' Compensation Act (Act).[1] We now affirm.

         Claimant entered into a National Football League (NFL) Player Contract (Contract) with Employer on January 7, 2008. (Reproduced Record (R.R.) at 14a.) The Contract spanned two football seasons and was intended to begin on the date of execution, or March 1, 2008, whichever occurred later. (Id. at 61a.) Under the terms of the Contract, Claimant's responsibilities included attendance at "mini-camp(s), official pre-season training camp, all [Employer] meetings and practice sessions, [and] all pre-season, regular season, and post-season football games scheduled for or by [Employer]," including any all-star football games sponsored by the NFL. (Id.) Claimant was further obligated to attend ten assigned appearances per year on behalf of Employer and to cooperate with news media in promoting the NFL. (Id. at 61a, 65a.) The terms of the Contract also prohibited Claimant from playing football or engaging in any football-related activities outside of his employment. (Id. at 61a.) In exchange for the performance of his contractual obligations, Employer was required to pay Claimant a yearly salary of $200, 000 for the first season, and $230, 000 for the second season. (Id.) Employer was further required to pay Claimant's compensation in weekly or biweekly installments over the course of the regular season. (Id. at 62a.)

         Claimant filed a claim petition against Employer on August 4, 2011, alleging that he sustained a work-related injury to his left shoulder on August 8, 2008, during a football game in the course and scope of his employment with Employer. (Id. at 6a-8a, 28a.) The Bureau of Workers' Compensation assigned the matter to Workers' Compensation Judge Kathleen Vallely (WCJ Vallely). WCJ Vallely scheduled the matter for mandatory mediation, at which Employer agreed to accept liability for Claimant's work-related injury. (Certified Record (C.R.), Item No. 36 at 7; R.R. at 138a.) As a result, the only remaining issue for WCJ Vallely to decide was the proper method of calculating Claimant's average weekly wage (AWW). (R.R. at 138a.) By decision and order circulated September 5, 2014, WCJ Vallely granted Claimant's claim petition and awarded Claimant disability benefits in the amount of $870 per week based on an AWW of $4, 000, which she calculated under Section 309(c) of the Act (First Decision). [2] (Id. at 14a-16a.)

         Claimant and Employer appealed WCJ Vallely's First Decision to the Board, which affirmed in part, [3] modified in part, [4] and remanded the matter to WCJ Vallely to make additional findings regarding the date of Claimant's disability and the description of Claimant's work-related injury.[5] (Id. at 33a.) On remand, WCJ Vallely issued a decision and order dated February 11, 2016, which was consistent with her First Decision, as amended by her First and Second Amended Decisions. (Id. at 36a.) Employer appealed to the Board, alleging that the Board and WCJ Vallely incorrectly calculated Claimant's AWW and the resulting total disability benefit rate. (C.R., Item No. 15.) The Board, without addressing the merits of Employer's appeal, remanded the matter to WCJ McTiernan[6] because the record was incomplete. On remand, both parties agreed that the record was complete but for two promotional videos, which were irrelevant to Employer's appeal, and WCJ McTiernan, therefore, closed the record. (WCJ McTiernan's Decision at 3.) By decision and order dated September 12, 2017, WCJ McTiernan granted Claimant's claim petition and directed Employer to pay Claimant temporary total disability benefits at the rate of $807 per week beginning August 9, 2008, based on an AWW of $3, 846.15 per week. (Id. at 6.) In reaching this decision, WCJ McTiernan stated:

I find [Claimant's] proposed calculation, as modified by the Opinion of the . . . Board, reflects a more accurate assessment of [Claimant's] [AWW] as it more accurately and realistically measures what [Claimant] could have expected to earn had he not been injured. The [C]ontract established the value of [Claimant's] services to . . . Employer prior to the accepted work related injury and is therefore the appropriate basis for calculating his [AWW] at the time of the August 8, 2008, work injury.

(Id. at 4.) Both Employer and Claimant appealed WCJ McTiernan's decision and order to the Board, which affirmed. Employer now petitions this Court for review.

         On appeal, [7] the sole issue is whether WCJ McTiernan and the Board committed an error of law by calculating Claimant's AWW pursuant to Section 309(c) of the Act. Employer argues that WCJ McTiernan and the Board should have calculated Claimant's AWW pursuant to Section 309(e) of the Act, [8]because Claimant could not possibly play football throughout the year and is, therefore, a seasonal employee. Employer contends that pursuant to this Court's prior decision in Ross v. Workers' Compensation Appeal Board (Arena Football League), 702 A.2d 1099 (Pa. Cmwlth. 1997), appeal denied, 724 A.2d 937 (Pa. 1998), all professional football players are seasonal employees. In response, Claimant contends that the Board properly calculated his AWW pursuant to Section 309(c) of the Act.

         In order to determine whether WCJ McTiernan and the Board properly calculated Claimant's AWW pursuant to Section 309(c) of the Act or whether WCJ McTiernan and the Board should have calculated Claimant's AWW pursuant to Section 309(e) of the Act, we must first determine whether Claimant's employment was seasonal. Our courts have opined: "Seasonal occupations logically are those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it." Am. Mut. Ins. Co. v. Workmen's Comp. Appeal Bd. (Davenport & Nat. Marble & Onyx Co.), 530 A.2d 121, 128 (Pa. Cmwlth. 1987) (quoting Froehly v. T.M. Harton Co., 139 A. 727, 730 (Pa. 1927)). "The inquiry centers on the character of the work rather than the period during which the business is open." Keenan v. Workers' Comp. Appeal Bd. (Cocco) (Pa. Cmwlth., No. 1061 C.D. 2014, filed July 10, 2015), slip op. at 6 (citing Froehly, 139 A. at 730).[9] In the context of professional sports, this Court has previously addressed whether a professional football player is a seasonal employee for purposes of Section 309(e) of the Act in both Station v. Workmen's Compensation Appeal Board (Pittsburgh Steelers Sports, Inc.), 608 A.2d 625 (Pa. Cmwlth.), appeal denied, 615 A.2d 1315 (Pa. 1992), and Ross.

         In Station, this Court considered whether a professional football player with the NFL was a seasonal employee for purposes of Section 309(e) of the Act. In that case, the employer drafted the claimant in 1986, and the claimant signed an NFL Player Contract in July 1986. The employer hired the claimant while he was recovering from back surgery; as a result, the claimant was unable to participate in games or practice until October 1986. The claimant eventually earned a place on the employer's active roster and played in a number of games, but he was later injured in practice and could no longer participate in games through the rest of the season. The employer paid the claimant his full salary through the remainder of his one-year contract-i.e., December 21, 1986. The claimant participated in try-outs for the 1987 season but did not perform adequately, which resulted in his termination from employment. The claimant, no longer able to play professional football, filed a claim petition against the employer, alleging that the loss of his employment was due to the injury he received during practice in November 1986. The referee[10]calculated the claimant's AWW pursuant to Section 309(c) of the Act and awarded the claimant benefits at the then-maximum compensation rate. Both the employer and the claimant appealed the referee's decision to the Board, which affirmed in all material respects. Thereafter, the claimant and the employer filed cross appeals to this Court.

         This Court ultimately concluded that the claimant was a seasonal employee.[11] Station, 608 A.2d at 631. In coming to this conclusion, this Court considered the terms of the claimant's NFL Players' Contract, which provided: (1) players' obligations began at the start of the pre-season training camp and lasted until the regular season was complete; (2) players could not engage in off-season employment with another football team; (3) players were to be compensated after the completion of each game, starting with the first regular season game; and (4) players were not compensated outside of the regular season. Based on the terms of the NFL Players' Contract, this Court reasoned that the prohibition from playing football with other entities, thereby restricting the claimant from playing football throughout the year, was evidence that the claimant was a seasonal employee. Station, 608 A.2d at 629-30. This Court further reasoned that the employer's decision to fix players' compensation by completion of games, rather than pay compensation yearly, monthly, or pursuant to any other temporal limits, also led to the conclusion that the claimant was a seasonal employee. Id. at 630.

         Similarly, in Ross, this Court considered whether an Arena Football League (AFL) player was a seasonal employee for purposes of Section 309(e) of the Act. In that case, the employer hired the claimant as a professional football player, and the claimant entered into an AFL player agreement in May 1990. The claimant sustained an injury to his toe during pre-season training camp and ultimately injured the same toe once more during a post-season game in August 1990. The claimant filed a claim petition, and the employer accepted liability for the injury by issuing a notice of compensation payable. The employer later filed a review petition, arguing that the claimant's benefits were incorrectly calculated because the claimant was a seasonal employee. The WCJ granted the employer's ...


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