Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
MICHAEL SWIFT, Employee, Plaintiff, v. RICHARDSON SPORTS, LTD.
d/b/a CAROLINA PANTHERS, Employer and LEGION INSURANCE COMPANY
(Cameron M. Harris & Company, Adjusting Service), Carriers,
Filed: 5 April 2005
1. Workers' Compensation_compensable injury_professional football player
The Industrial Commission did not err by finding that a professional football player
sustained a compensable injury by accident arising out of and in the course of his employment
where his leg was broken and ankle tendons torn when other players fell on the back of his leg
during a game. There was evidence to support the Commission's findings that the injury was
2. Workers' Compensation_disability_professional football player_reason for being
released from team_personal knowledge
The trial court did not err by allowing plaintiff, a football player, to testify about the
reason for his termination from a team. Plaintiff offered personal knowledge about why he was
released and his testimony was not hearsay.
3. Workers' Compensation_disability_injured professional football player_return
with another team_eventual release
The Industrial Commission did not err in a workers' compensation case by awarding
compensation to a professional football player who was injured while playing with defendant,
then returned to play with another team. While plaintiff did try out for and make the other team,
he was released from that team because of injuries suffered with defendant.
4. Workers' Compensation_disability_professional football player_dollar-for-dollar
The Industrial Commission did not abuse its discretion in a workers' compensation
disability case by awarding a time credit rather than a dollar-for-dollar credit for payments made
by defendants to plaintiff, a professional football player, after he was injured. Dollar-for-dollar
credits are precluded by North Carolina law.
5. Workers' Compensation_attorney fees_findings
An award of attorney fees in a workers' compensation case was remanded for additional
findings of fact and conclusions of law on attorney fees and a statement of the specific statute
relied upon in making the award.
Appeal by defendants from opinion and award entered 10 October
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 15 November 2004.
R. James Lore for plaintiff appellee.
Hedrick, Eatman, Gardner, & Kincheloe, L.L.P., by Hatcher
Kincheloe and Shannon P. Herndon, for defendant appellants.
Defendants appeal from the opinion and award of the North
Carolina Industrial Commission. Plaintiff Michael Swift was born
on 28 February 1974. He graduated from high school and attended
college at Austin Peay State, but did not graduate. Although he
was not drafted as a professional football player, plaintiff made
the San Diego Chargers as a free agent. Plaintiff worked primarily
on special teams, but also played cornerback on defense. After
playing two seasons with the Chargers, plaintiff signed with the
Carolina Panthers and played the same positions. Plaintiff was a
member of the Panthers' team from 1998-1999 and 1999-2000.
On or about 27 July 1999, plaintiff agreed to play for the
Panthers in exchange for $325,000.00 which was paid in seventeen
equal installments. Although the regular season consists of sixteen
games, the season lasts seventeen weeks because every team receives
a bye, or one week in which there is no game.
During the fifteenth game of the regular season, plaintiff
lined up on the end of the line. Plaintiff intended to go around
the opposing team's players and block an extra point attempt.
However, the opposing team bobbled the ball, and the play broke
down. When he attempted to get the ball, an opponent knocked
plaintiff on the ground, and one or two players fell on the back ofplaintiff's leg. This resulted in a broken right fibula and severe
tearing in the tendons of his ankle. At the time of the injury,
plaintiff was taking all reasonable measures to protect himself
from injury given the nature of the game.
On 27 December 1999, the Panthers' team doctor performed
surgery and inserted hardware to repair plaintiff's leg and ankle.
Plaintiff returned to Tennessee where he underwent physical
therapy. The Panthers decided not to renew plaintiff's contract
for the 1999-2000 season because plaintiff was still on crutches
and was undergoing physical therapy for his ankle.
On or about 9 March 2000, the Panthers' team physician removed
some of the hardware from plaintiff's leg. Afterwards, plaintiff
returned to Memphis to continue his physical therapy.
Although his ankle had not fully recovered, plaintiff tried
out for another team, the Jacksonville Jaguars. In spite of having
continued symptoms, plaintiff made the team. However, the Jaguars
released plaintiff after the first game because plaintiff's ankle
injury impaired his speed and mobility.
Although several other teams asked plaintiff to participate in
tryouts, plaintiff was unable to make a team because of the injury
he sustained while working for the Panthers. Despite plaintiff's
lengthy period of rehabilitation, the injury was career-ending.
Because he could no longer pursue a career in professional
football, plaintiff worked a number of other jobs. From late
November of 2000 until January of 2001, plaintiff worked as ananalyst for Protein Technologies making twelve dollars per hour.
From April of 2001 through October of 2002, plaintiff worked for
Uniform People as a sales representative. There, he earned an
annual salary of $35,000.00. Finally, plaintiff became self-
employed in October of 2002. At that time, his anticipated income
from selling used computer equipment was $40,000.00 per year. All
of these jobs reflected plaintiff's attempt at reaching his wage
earning capacity outside of the NFL.
In the NFL, a player's salary is based on his contract. In
this case, the contract called for $325,000.00 to be paid in
seventeen equal payments immediately after each of the sixteen
games plus the bye-week during the seventeen-week season.
Subsequent to 26 December 1999, the date of the injury, plaintiff
had played in the fifteenth game of the season and had earned that
check by the time he was injured.
The next week, plaintiff received his sixteenth and final
check after the Panthers played the last game of the 1999-2000
season. Plaintiff received this $19,118.00 check under the injury
protection provisions of paragraph 9 of the standard NFL Player
Contract. Payments made under this disability provision are funded
exclusively from the player's side, as opposed to the employer's
side of the divided league revenue under the Collective Bargaining
On or about 31 December 2001, plaintiff received a $30,000.00
check for severance pay from the Panthers. This amount was based
on the Collective Bargaining Agreement and the number of years thatplaintiff played in the NFL. Although plaintiff received this
check after the injury, he had earned the entire amount before the
injury because in the NFL, a player accrues a year of service once
he plays in the third game of the season. During the 1999-2000
season, the third game had occurred prior to plaintiff's injury on
26 December 1999.
While playing for the Jacksonville Jaguars in September 2000,
plaintiff received $22,647.00, which was 1/17 of his yearly
contract. The payment was for playing in one regular season game;
defendant received nothing thereafter. This amount reflects the
one week that plaintiff had an earning capacity equal to or greater
than he had while playing with the Panthers. The Jaguars made a
number of other payments for things like travel expenses and
training camp. These payments would still yield an entitlement
that exceeds the maximum compensation rate of $560.00 that was in
effect in 1999.
Plaintiff's average weekly wage is $6,476.90. This wage is
calculated by dividing the yearly contract plus all other payments
the Panthers paid for the season in which the injury occurred.
Based on those facts, the Full Commission made the following
conclusions of law. First, plaintiff sustained a compensable
injury by accident as a result of a compensable event arising out
of and in the course of his employment with defendants on 26
December 1999. Second, plaintiff is entitled to partial disability
compensation at the maximum rate of $560.00 per week (the rate that
was in effect in 2000) and past and future medical treatment. Finally, defendants were permitted to deduct one weekly
compensation payment at the maximum applicable rate of $560.00 from
the 300 weeks of compensation otherwise due.
Based upon its findings of fact and conclusions of law, the
Full Commission awarded plaintiff compensation at the rate of
$560.00 per week for a period of 299 weeks with the accrued
relating back to 27 December 1999. This amount was to be paid in
one lump sum with the balance to be paid over the remainder of the
299-week period so long as plaintiff's yearly earnings were
sufficient to yield the maximum compensation rate of $560.00 per
week. Additionally, defendants had to pay a reasonable attorney
fee of 25%, past and future medical expenses, and the costs of the
appeal. Defendants appeal.
On appeal, defendants argue that the Full Commission erred by
(1) finding that plaintiff sustained a compensable injury by
accident arising out of and in the course of his employment on 26
December 1999, (2) allowing plaintiff to testify about the reason
for his termination from the Jacksonville Jaguars, (3) awarding
plaintiff 299 weeks of benefits, (4) incorrectly calculating the
credit to which defendants were entitled, and (5) awarding attorney
fees to plaintiff. We disagree and affirm the opinion and award of
the Full Commission.
I. Compensable Injury
Defendants contend that the Full Commission erred in finding
that plaintiff sustained a compensable injury by accident arising
out of and in the course of his employment on 26 December 1999. The Workers' Compensation Act extends coverage only to an
injury by accident arising out of and in the course of the
employment[.] N.C. Gen. Stat. § 97-2(6) (2003). Injury and
accident are separate concepts, and there must be an accident which
produces the injury before an employee can be awarded compensation.
Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123,
126-27, 362 S.E.2d 569, 571 (1987). Our Supreme Court has
An accident, as the word is used in the
Workmen's Compensation Act, has been defined
as an unlooked for and untoward event which
is not expected or designed by the injured
employee. A result produced by a fortuitous
cause. An unexpected or unforeseen event.
An unexpected, unusual or undesigned
Edwards v. Publishing Co., 227 N.C. 184, 186, 41 S.E.2d 592, 593
(1947) (citations omitted). [U]nusualness and unexpectedness are
its essence. Smith v. Creamery Co., 217 N.C. 468, 472, 8 S.E.2d
231, 233 (1940). To justify an award of compensation, the injury
must involve more than the carrying on of usual and customary
duties in the usual way. Davis v. Raleigh Rental Center, 58 N.C.
App. 113, 116, 292 S.E.2d 763, 766 (1982). The issue of whether
a particular accident arises out of and in the course of employment
is a mixed question of fact and law, and this Court's review is
limited on appeal to the question of whether the findings and
conclusions are supported by competent evidence. Hoyle v.
Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196,
198, disc. review denied, 306 N.C. 565 (1982). In its findings of fact, the Full Commission described how
plaintiff sustained his injury:
8. In the 15th game of the 16-game
regular season, while playing on special teams
in a game against the Pittsburgh Steelers in
Pittsburgh, Pennsylvania, plaintiff was lined
up on the end of the line to attempt to get
around the opposing team's players and block
an extra point attempt. On that particular
play, the opposing team bobbled the ball and
the play broke down. In an attempt to get to
the ball, Swift was knocked to the ground and
at least one other player, and possibly two,
fell on the back of his leg not only breaking
his right fibula but also severely tearing the
tendons in his ankle.
There is competent evidence in the record which supports this
finding. Plaintiff testified that he sustained an injury while
playing in the fifteenth game of the season against the Pittsburgh
Steelers. Additionally, plaintiff's description of the incident is
consistent with the Full Commission's finding. Plaintiff indicated
that when he attempted to block an extra point, the opposing team
bobbled the ball. When the play broke down, one or more players
fell on the back of plaintiff's leg resulting in a broken right
fibula and torn tendons in the ankle.
In determining that plaintiff sustained a compensable injury
by accident, the Full Commission made the following important
finding of fact:
9. It was unexpected and unusual for a
player to fall on Swift in this way so as to
break his fibula and cause such a tear in his
ankle tendon. At the time of injury, Swift
was taking all reasonable measures to protect
himself from injury given the nature of the
game. At the same time, Swift was required to
do what he was doing when injured and had nochoice but to do it as best he could
notwithstanding the risk of injury.
Once again, there was competent evidence in the record to
support this finding. First, the injury was unusual in that Swift
attempted to block numerous extra point attempts without sustaining
a broken leg and torn tendons in his ankle. Second, it was
unexpected that one or more players would fall on the back of
plaintiff's leg causing a career-ending injury. Finally, Dr. J.
Leonard Goldner testified that such an injury requires a force of
3000 pounds per square inch to occur. Because there is competent
evidence to support the Full Commissions' findings of fact and
these findings support its conclusion of law that plaintiff
sustained a compensable injury by accident, we overrule this
assignment of error.
II. Hearsay Testimony
Defendants argue that the Full Commission erred by allowing
plaintiff to testify about the reason for his termination from the
Jacksonville Jaguars. Defendants claim that the reason for the
termination was outside of plaintiff's firsthand knowledge and was
therefore hearsay. This argument is unpersuasive.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003)
(emphasis added), hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. Here,
plaintiff's attorney asked plaintiff why he was released from the
Panthers. In response, plaintiff offered personal knowledge as towhy he was released. He stated that he could not perform as
needed on the field. This statement does not meet the definition
of hearsay because it occurred while plaintiff was testifying at
the hearing. For these reasons, we overrule this assignment of
III. Amount Paid
Defendants argue that the Full Commission erred by awarding
plaintiff 299 weeks of benefits. Before addressing this
contention, we recognize our limited standard of review in workers'
compensation cases. In short, we must determine whether any
competent evidence supports the Commission's findings of fact and
whether the findings of fact support the Commission's conclusions
of law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). The Full Commission is the sole judge of
the weight and credibility of the evidence[.] Id. at 116, 530
S.E.2d at 553. An appellate court reviewing a workers'
compensation claim does not have the right to weigh the evidence
and decide the issue on the basis of its weight. Anderson v.
Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
The court's duty goes no further than to determine whether the
record contains any evidence tending to support the finding. Id.
at 434, 144 S.E.2d at 274. If there is any evidence at all, taken
in the light most favorable to plaintiff to support it, the finding
of fact stands, even if there is evidence going the other way.
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998),
reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). With theseprinciples in mind, we turn to consider defendants' arguments
regarding the amount paid.
Defendants claim that plaintiff should not have received 299
weeks of benefits because he returned to football with the
Jacksonville Jaguars. The Full Commission did make a finding of
fact addressing this issue. In finding of fact 13, the Full
13. Although his leg and ankle had not
fully recovered, Swift, who had planned on
making a career out of working in the NFL as a
professional football player, tried out for
another professional football team, the
Jacksonville Jaguars. Although he had
continued symptoms with his ankle, he made the
team. After his first game with the Jaguars,
on September 5, 2000 plaintiff was released
from the team because of limitations of speed
and ability to maneuver as a result of the
impairment from the ankle injury sustained
while working with the Carolina Panthers.
Swift's compensable work-related limitations
made him more likely to be dismissed from the
team relative to his teammates for reasons of
The record indicates that plaintiff did try out and make the
Jacksonville Jaguars' football team. The record also reveals that
plaintiff was released from the Jaguars on or around 5 September
2000. Plaintiff's own testimony, which we have already determined
to be based on his own personal knowledge, tended to show that
plaintiff was released because of limitations from the injury with
the Panthers. Therefore, competent evidence in the record supports
this finding of fact. We overrule this assignment of error.
IV. Award of a Credit
Defendants disagree with the Full Commission's award of a
credit for payments defendants made to plaintiff. Under N.C. Gen.
Stat. § 97-42 (2003)
[p]ayments made by the employer to the
injured employee during the period of his
disability, or to his dependents, which by the
terms of this Article were not due and payable
when made, may, subject to the approval of the
Commission be deducted from the amount to be
paid as compensation. Provided, that in the
case of disability such deductions shall be
made by shortening the period during which
compensation must be paid, and not by reducing
the amount of the weekly payment. Unless
otherwise provided by the plan, when payments
are made to an injured employee pursuant to an
employer-funded salary continuation,
disability or other income replacement plan,
the deduction shall be calculated from
payments made by the employer in each week
during which compensation was due and payable,
without any carry-forward or carry-back of
credit for amounts paid in excess of the
compensation rate in any given week.
N.C. Gen. Stat. § 97-42 is the only statutory authority which
allows an employer in North Carolina to receive a credit from
workers' compensation benefits that are due to an injured employee.
Effingham v. Kroger Co., 149 N.C. App. 105, 119, 561 S.E.2d 287,
296 (2002). The decision of whether to grant a credit is within
the sound discretion of the Commission. Shockley v. Cairn
Studios, Ltd., 149 N.C. App. 961, 966, 563 S.E.2d 207, 211 (2002),
appeal dismissed, disc. review denied, 356 N.C. 678, 577 S.E.2d
887, 888 (2003). Thus, the Commission's decision to grant or deny
a credit to the employer will not be reversed unless there is an
abuse of discretion. Id. Defendants argue that they are entitled to a dollar-for-
dollar credit for amounts they paid after plaintiff's injury.
First, they contend that this Court allowed a dollar-for-dollar
credit in Larramore v. Richardson Sports Ltd. Partners, 141 N.C.
App. 250, 540 S.E.2d 768 (2000), aff'd per curiam, 353 N.C. 520,
546 S.E.2d 87 (2001). Second, they claim that they are entitled to
such a credit based on Paragraph 10 of the NFL Player Contract.
Our Court considered this exact issue in Smith v. Richardson
Sports, Ltd., 168 N.C. App. 410_, ___ S.E.2d ___ (filed 15 February
2005) and rejected both of these arguments. There, the Court
explained that Larramore did not entitle an employer to a dollar-
for-dollar credit for amounts an employer paid to an employee after
his injury. Smith, 168 N.C. App. at 416, ___ S.E.2d at ____.
Instead, the Court determined that N.C. Gen. Stat. § 97-42 governed
this issue and under that statute, any credit the employer receives
is limited to the shortening of the period in which compensation is
paid, not by reducing the amount of the weekly payment. Id. at
416, ___ S.E.2d at ___. Finally, the Court rejected the notion
that Paragraph 10 of the NFL Player Contract would allow a dollar-
for-dollar credit because N.C. Gen. Stat. § 97-6 (2003) states that
no contract or agreement can relieve an employer, in whole or in
part, from his obligation to pay workers' compensation. Id. at
417-18, ___ S.E.2d at ___. Since North Carolina law precludes the
allowance of a dollar-for-dollar credit, we cannot allow such a
recovery in the present case. However, we believe that the Full Commission was correct in
the credit it did allow defendants to receive. In conclusion of
law 4, the Full Commission stated:
4. Defendants are entitled to deduct one
weekly compensation payment at the maximum
applicable rate of $560.00 weekly from the 300
weeks of compensation otherwise due and owing
pursuant to N.C. Gen. Stat. § 97-30.
In short, defendants did receive a week's deduction for time,
not dollars. The Full Commission required defendants to pay
plaintiff for 299 weeks, rather than 300 weeks, because plaintiff
returned to football for one week and exhibited earning capacity
comparable to his average weekly wage. This award complies with
the statutory mandate of N.C. Gen. Stat. § 97-42. Furthermore,
defendants have failed to show that they are entitled to an
additional one-week credit. Although plaintiff sustained his
injury in the 15th game and received payment for the 16th game in
which he did not play, the Commission noted that this money came
exclusively from the player's side of the divided league revenue.
Competent evidence in the record supports this finding since
Richard Berthelson, counsel for the NFL Player's Association,
testified that the funding in question came from the players' side
of the revenue. Although we are troubled by the fact that the
Commission awarded a 14-week credit in the Smith case and denied a
one-week credit here, we recognize that such credits are a matter
of discretion under N.C. Gen. Stat. § 97-42. While there seems to
be little significant difference between the cases, we cannot
conclude that the Full Commission necessarily abused its discretionin making this determination. We overrule this assignment of
V. Attorney Fees
Defendants object to the award of attorney fees. In their
briefs, both parties contend that the Full Commission made the
award pursuant to N.C. Gen. Stat. § 97-88.1 (2003). Under the
statute, before making an award, the Commission must determine that
a hearing has been brought, prosecuted, or defended without
reasonable ground. However, the actual opinion and award sheds no
light whatsoever upon this question. It contains no findings of
fact or conclusions of law pertaining to attorney fees. The only
mention of attorney fees is in paragraph 2 of the award section of
the order which states:
A reasonable attorney fee in the amount of
twenty-five percent (25%) of the compensation
due plaintiff is approved and awarded to
plaintiff's counsel as attorney's fees. This
amount shall be paid as a part of the cost of
this action and not deducted from Plaintiff's
compensation. All sums that have accrued
shall be paid in a lump sum.
We respectfully remand this issue to the Full Commission for
the entry of additional findings of fact and conclusions of law on
the issue of attorney fees. The Full Commission should also
specifically state the statute it relied upon in making the award
and should make the necessary findings of fact and conclusions of
law supporting the award.
After careful consideration, the opinion and award is
Affirmed in part, remanded in part. Chief Judge MARTIN and Judge STEELMAN concur.
*** Converted from WordPerfect ***