Today, February 3, 2023, the Commonwealth Court of Pennsylvania affirmed a Workers’ Compensation Judge’s September, 2021 order awarding Emmanuel Acho disability benefits. The Philadelphia Eagles had petitioned for review of the award on September 29, 2021. The benefits stemmed from an August 11, 2015 thumb injury Acho suffered in practice while employed by the Eagles as a linebacker.
Acho continued playing football and ended up fracturing the same thumb less than a month later – again in practice. He had an operation on the thumb a couple days later in August of 2015. Acho was unable to participate in physical activities for a few weeks after the surgery, and, at that point, the Eagles suddenly released him from their roster. Pursuant to an injury settlement agreement, Acho received three weeks of pay upon his release.
After physical rehabilitation, Acho was finally cleared to play but continued to have pain in his thumb. Nevertheless, he re-signed with the Eagles in November of 2015. He was there for a cup of coffee. Acho was released, once again, just 16 days after re-signing. After that second release, Acho never played professional football again.
That didn’t limit his success, though, as Acho has become a highly-popular sports commentator and obtained a master’s degree at the University of Texas in 2017. Still, according to the court order, Acho argued that this thumb injury left him physically unable to play football at a high level, leading to a lack of employment in the NFL. He suffered from post-traumatic arthritis, among other complications, after the surgery.
With that, on August 20, 2018, Acho filed a Claim petition relating to the 2015 thumb injury. The Workers’ Comp. Judge granted Acho partial disability benefits until September 12, 2019, and granted the Eagles a three-week credit for the injury settlement they had reached back in 2015. The Eagles petitioned for review of Acho’s multiple disability awards on September 29, 2021.
The team raised 3 issues:
“The evidence relied upon by the WCJ to award total disability benefits from August 23, 2015, to November 10, 2015, was insufficient because it did not establish that Claimant's release from Employer's roster was due to his injury.”
"The evidence relied upon by the WCJ to award partial disability benefits from November 10, 2015, through September 12, 2019, was insufficient to establish that Claimant suffered a compensable injury during this period; the WCJ's finding in this regard was arbitrary and capricious;" and
"The medical testimony of Claimant's expert, Dr. Vagner, was not competent, credible, or unequivocal in establishing a compensable injury after August 23, 2015."
The Commonwealth Court’s standard of reviewing the WCJ’s decision was to determine whether constitutional rights were violated, whether an error of law was committed, and whether necessary findings of fact are supported by substantial evidence.
The Court was not convinced that Acho’s second release from the team wasn’t related to injury: “Claimant [Acho] was released immediately after the surgery on his thumb and was paid a three-week injury settlement.” “The 2015 release thus clearly was not routine or based on any past practice, but rather was due to Claimant's injury and perceived inability to play.”
Thus, the court concluded that an award of total disability benefits for the period in 2015, as well as the subsequent award of partial benefits, were not made in error. Finally, the Court held that the WCJ did not err in considering Acho’s expert Dr.’s testimony. Specifically, the Court pointed to Dr. Vagner's experience: "he is an orthopedic surgeon with added credentials as a hand specialist and the hand surgeon for the University of Texas and Baylor University athletic departments."
Jason Morrin is a law clerk (pending admission to the NY Bar) at Zumpano, Patricios & Popok LLP in New York, a firm dedicated to litigation and business counseling including in the areas of sports, gaming and entertainment. He graduated cum laude from Hofstra Law School where he was president of the Sports and Entertainment Law Society. His reporting for Conduct Detrimental has been cited by ESPN, The New York Post, USA Today, Bleacher Report and more.