Super Bowl-bound Eagles lose appeal in workers' comp case
The team questioned if the former player’s thumb injury was really the reason his career fizzled out.
In what was just its second defeat since the start of the new year, the Philadelphia Eagles lost an appeal to deny a former player’s claim for workers’ comp, according to documents from the Pennsylvania Workers’ Compensation Appeal Board, which affirmed an earlier ruling that award temporary partial disability to the former NFLer.
The case centers on Emmanuel Acho, who was on the Eagles roster when he suffered a thumb injury during practice on Aug. 11, 2015.
Despite the injury, Acho continued to see game action, including an Aug. 22, 2015 preseason game. On Aug. 23, he fractured the same thumb during a practice session.
One or two days after the second injury occurred, the player underwent surgery. Acho was released from the team immediately following the surgery, according to the appeal board. Per the NFL’s collective bargaining agreement with its players, Acho received three weeks of pay via an injury settlement.
After going through rehabilitation, Acho was cleared to play football by his doctors. Despite still having pain and weakness in his thumb, the Eagles resigned Acho in November 2015. He did not see any game action for the remainder of that season and was released again 16 days later.
Acho tried out for other teams after being released by the Eagles, but found he could not perform up to his pre-injury level, according to the appeal board. He has not played professional football since.
Following his playing career, Acho saw physicians and trainers at the University of Texas, but didn’t receive any special treatment for his thumb injury until 2018, when he saw a physician’s assistant at a federal workers’ comp facility in Texas.
In August 2018, Acho filed a workers’ comp claim petition related to both injuries that occurred in August 2015, and the Eagles filed a petition to terminate benefits for both injuries.
Not at the NFL level
In February 2019, Acho visited Dr. Greg Vagner, who reviewed treatment records and magnetic resonance images of the injured thumb. At that time, the doctor told a Pennsylvania workers’ comp judge that Acho had some “displacement within the joint and mild to moderate post-traumatic osteoarthritis,” which was a result of the August 2015 injury.
Post-traumatic arthritis resulted in pain and decreased function of the thumb, which would require ongoing treatment and potentially further surgery.
The Eagles also presented testimony from orthopedic surgeon Dr. Donald Leatherwood, who found Acho’s thumb had a limited range of motion and grip strength during an exam. He also confirmed the player’s fracture had healed following the 2015 surgery with a displacement of approximately one millimeter and post-traumatic arthritis, which was caused by the injury.
Based on Vagner’s testimony that the injury made it difficult to perform the job of an NFL linebacker, the workers’ comp judge granted Acho partial disability benefits until Sept. 12, 2019, which is when it was determined he had fully recovered based on Dr. Leatherwood’s exam. The Eagles were granted a three-week credit for the injury settlement that was reached in 2015.
After further review . . .
However, the Eagles filed an appeal, arguing the judge’s previous decision was not “based on substantial, competent evidence, was not reasoned, and was arbitrary and capricious,” according to the case documents.
The team also noted the judge didn’t acknowledge that Acho was able to play football three weeks after the injury. The Eagles also claimed the judge accepted incompetent medical testimony from Vagner.
Despite these arguments, the board affirmed the earlier ruling. This led the Eagles to file with the Workers’ Comp Appeals Board, bringing up three issues:
1. The evidence used to award total disability benefits (from Aug. 23-Nov. 10, 2015) was insufficient and failed to establish that Acho was released because of the injury.
The appeals board found that while Acho’s signing and subsequent release from the team in 2015 was similar to his experience during the 2013 and 2014 seasons, it differed in that he played no regular season games in 2015. While he was released and resigned during both 2013 and 2014, he also appeared in regular season games during both years.
“In 2015, claimant was released immediately after the surgery on his thumb and was paid a three-week injury settlement,” the appeals board wrote. “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. Claimant testified that, even after being released to play after surgery, the pain in his thumb restricted his ability to return to his pre-injury performance levels. Employer presented no evidence indicating to the contrary.”
2. The evidence used to award partial disability (Nov. 10, 2015-Sept. 12, 2019) failed to establish that Acho suffered a compensable injury during the period.
Although Acho was cleared to play football, and rejoined the Eagles briefly before trying out for other teams, he continued to experience pain and limited playing ability due to the thumb injury, the appeals board found. The board’s judges added that the Eagles organization “largely discounts or ignore entirely” Acho’s pre-injury ability and prospects as a professional football player.
“Any detraction from that level of play due to injury could and apparently did tarnish and ultimately eliminate claimant’s prospects to play as a high-performance linebacker in the NFL. Employer’s suggestion to the contrary simply is not accurate,” the appeals board wrote.
3. The testimony of Vagner was not “competent, credible or unequivocal” in establishing a compensable injury after Aug. 23, 2015.
While Wagner didn’t examine Acho until February 2019, he did base his testimony on medical records, including those of the initial surgeon as well as MRIs taken in 2018. The judges also found Vagner to be uniquely qualified to testify based on his experience as an orthopedic surgeon, and a hand specialist, for the University of Texas and Baylor University athletic departments.
The Eagles claim that Vagner’s opinions were equivocal because he used the “more than likely” and “most likely,” when giving his testimony was also rejected by the panel of judges. The appeals noted that during his testimony, Vagner indicated his opinion was formulated within a reasonable degree of medical certainty.
“Taken as a whole, then, we conclude that the WCJ did not err in relying on Dr. Vagner’s testimony, which was unequivocal in supporting the WCJ’s award of benefits,” the appeals board wrote.
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