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Maryland Court of Appeals affirms workers’ comp award to Tupa

BALTIMORE, MD — Former Washington Redskins punter Tom Tupa can collect workers’ compensation benefits in Maryland for a career-ending back injury that occurred at FedEx field during warm-ups before a preseason game in August 2005, the Court of Appeals held Wednesday.

Redskins’ management and its insurer argued that Tupa’s awkward fall was not a compensable “accidental injury” because it was to be expected in the rough-and-tumble sport — a notion the top court, citing a leading treatise, dismissed as “conspicuously wrong.”

“I don’t think I’m going to hear that argument anymore,” said Tupa’s attorney, Benjamin T. Boscolo. “‘Conspicuously wrong’ is pretty clear language.”

The court was equally emphatic in rejecting the team’s other argument, which was that Tupa had contracted away his right to benefits under Maryland law by agreeing to be bound by the workers’ compensation laws of Virginia.

Maryland law “in plain, unambiguous language … precludes an agreement which waives the right of an employee to receive workers’ compensation benefits which are otherwise due under the Maryland statute,” retired Judge John C. Eldridge wrote for the unanimous Court of Appeals.

That provision has no exception for forum-selection clauses, Eldridge wrote.

David O. Godwin Jr., a former commissioner on the Maryland Workers’ Compensation Commission who represented the team and its insurer, was out of the office on Wednesday afternoon and could not be reached for comment. However, Boscolo said the jurisdictional issue was really what the team and its insurer were worried about, since they want to be able to enforce contractual provisions regarding which state’s laws should apply.

“This is not really about Tom Tupa and it’s not really about Maryland — it’s about California,” said Boscolo, a partner in the Greenbelt firm of ChasenBoscolo.

California’s liberal notion of jurisdiction and its laws on cumulative trauma make it an attractive place for professional football players to file for workers’ compensation, he said, “so [the teams] have been battling hard on jurisdiction all across the country.”

Boscolo cited the case of Bruce Matthews, now an offensive line coach for the Tennessee Titans, who played for NFL teams in Texas and Tennessee for 19 years before retiring after the 2001 season. Matthews filed for workers’ compensation in California, but the Titans demanded and won arbitration based on their collective bargaining agreement and a contractual forum-selection clause. The 9th U.S. Circuit Court of Appeals upheld the arbitration award earlier this month.

In a final footnote to its Tupa decision, the Court of Appeals found it was far too late for the Redskins to argue that Tupa’s claims also depend on a collective bargaining agreement and therefore are pre-empted by federal law. The team raised that argument for the first time in its brief to the Court of Appeals.

Boscolo said he expects the issue to come up again, but was glad that the Court of Appeals had settled the question of whether workers’ compensation covers a professional athlete’s sports-related injuries.

A 1983 opinion by the Court of Special Appeals, Rowe v. Baltimore Colts, supported the Redskins’ position in Tupa’s case. But the Court of Special Appeals explicitly reversed Rowe when it ruled for Tupa last year. On Wednesday, the Court of Appeals agreed, saying it implicitly decided the same thing in a 2003 case, Harris v. Board of Education.

“It’s not just the Redskins; it’s the Ravens, the O’s, lacrosse, the minor league players; they’ve always had a hard time getting covered under Rowe,” Boscolo said.

Boscolo and Godwin argued Tupa’s case in the Court of Appeals in November. Six months later, they returned to argue another workers’ compensation case for former Redskin Darnerien McCants, a retired wide receiver who was injured during away games in Philadelphia and Buffalo. That case has not been decided.

As for Tupa, Boscolo said he “will be very pleased” with the win, which guarantees coverage for his future medical expenses for the injury.

Since 2006, Tupa has been working as the recreation director in Brecksville, Ohio, where he played high school football, Boscolo said. Tupa attended Ohio State University, where he earned All-American honors in 1987. He was in the second year of a four-year contract with the Redskins when the injury occurred on the field in Lanham.

“Tupa’s injury occurred ‘out of and in the course of [his] employment,’” Eldridge summed up for the Court of Appeals. “He was warming up for a game when he landed awkwardly and thereafter sought immediate medical treatment. Ample evidence was presented to show that Tupa suffered a compensable accidental injury during the course of his employment.”

By Barbara Grzincic. This article first appeared in the Maryland Daily Record, another Dolan Company publication.

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