Former NFLer's workers' comp award tossed on insurer's second appeal
The appeal hinged on if a former player elected to receive injury protection payments under a collective bargaining agreement.
The Fifth District Court of Appeals in Dallas reversed for a second time a trial court judgment granting a former Dallas Cowboys rookie workers’ compensation benefits. The most recent opinion and order went to the merits of a Texas Labor Code dispute, whereas an earlier judgment was reversed based on a venue determination.
The plaintiff in Alcus Reshod Fortenberry v. Great Divide Insurance Co. took the 2021 ruling to the Texas Supreme Court, which reversed on the venue issue and remanded for further proceedings.
Fortenberry, entering his first season with the Cowboys in 2015, sustained a work-related injury to his knee in training camp, prior to the start of the regular season. As a result, he never actually played for the National Football League franchise.
Fortenberry filed a workers’ compensation benefits claim and Great Divide, the Cowboys’ insurance carrier, disputed his right to receive indemnity benefits because Fortenberry elected to continue accepting benefits under the NFL Collective Bargaining agreement.
Fortenberry’s player contract compensation for the 2015 season was $318,000, and he received injury protection payments under collective bargaining for the 2016 and 2017 seasons of $166,500 and $139,500, respectively.
Fortenberry filed a dispute with the Texas Department of Insurance, Division of Workers’ Compensation and its administrative law judge determined Fortenberry was presumed to have elected injury protection payments under the collective bargaining agreement. Therefore, he was precluded from receiving disability benefits.
Fortenberry appealed to the Division of Workers’ Compensation appeals panel, but the ruling was affirmed. He then filed suit in the Dallas County 134th District Court.
Based upon a jury verdict, the trial judge set aside the decision of the Division of Workers’ Compensation appeals panel.
Justice Nancy Kennedy of the Fifth District authored the second opinion.
As appellant, Great Divide prevailed on its argument that the trial court’s jurisdiction is limited by the Texas Labor Code to issues decided by the appeals panel.
David Brenner of Burns Anderson Jury & Brenner, arguing for Great Divide, told the appeals court, “The trial court erred in entering judgment awarding temporary income benefits because it was not an appealable issue previously decided by the Division of Workers Compensation Appeals Panel.”
Kennedy noted in the opinion that under the labor code, a professional athlete employed under a contract for hire or a collective bargaining agreement must choose benefits for medical care and weekly benefits that are equal to or greater than the benefits provided under the Workers’ Compensation Act.
“If the athlete fails to make an election, the athlete will be presumed to have elected the option that provides the highest benefits,” the Kennedy opinion states.
Kennedy recognized that the record indicated Fortenberry did not present evidence or testimony on the election of remedies issue to the administrative law judge or the trial jury.
In seeking judicial review of the state administration panel’s decision, it was Fortenberry, not Great Divide, that had the burden of establishing he did not elect to receive benefits under the collective bargaining agreement, or that he was not required to make an election, the opinion states.
“Fortenberry did not present evidence establishing he would have received greater medical care and weekly benefits under the Workers’ Compensation Act than … under his NFL Player Contract or the collective bargaining agreement,” the opinion states.
Citing the Texas Rules of Civil Procedure, Kennedy said that if no element of an independent ground of recovery or defense is requested or submitted, that independent ground or defense is waived.
“No basis remains for Fortenberry to recover under the Worker’s Compensation Act,” Kennedy said, and, “the trial court erred in awarding Fortenberry temporary income benefits.”
Fortenberry was represented by John E. Collins, currently a solo practitioner in Corsicana. Collins did not respond to a request for comment.
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