On Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 01-17)
Before Steadman and Schwelb, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Newman, Senior Judge
Argued September 12, 2002
Lincoln Hockey LLC and Chubb Group (collectively, "Capitals") contend that the Director of the Department of Employment Services ("Director") erred in his construction of the D.C. Workers' Compensation Act, disallowing compensation credit for post-injury/pre-award contract wages paid to Mark Tinordi ("Tinordi"), an injured employee. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tinordi, claimant/intervenor, is a former professional hockey player for the Capitals, his employer. The Capitals are a member team of the National Hockey League ("NHL") and are petitioners here from the decision of the Department of Employment Services ("DOES"). This petition arises out of a workers' compensation award stemming from an injury sustained by Tinordi in the course of his employment while under a guaranteed contract with the Capitals.
A. The Collective Bargaining Agreement and the Contract
The contract under which Tinordi played for the Capitals was a standard form contract taken from the collective bargaining agreement ("CBA") between the NHL and the NHL Players' Association ("NHLPA"). The relevant language of the CBA, found in Article 23.4, reads as follows:
A player under contract who is disabled and unable to perform his duties as a hockey player, including travel with his team or on business requested by his Club, shall be entitled to receive his remaining salary due in accordance with the terms of his contract as long as the said disability and inability to perform continue . . . . In consideration of payment of such salary, as well as payments made by the Club to fund Hospital, Major Medical and Dental Plan, payments made by the Club to provide Career Ending Disability Insurance and other consideration, player does hereby covenant that in the event he files a claim under such Career Ending Disability Insurance (unless such claim is not paid), he personally releases . . . the Club [and every other hockey related person from any further liability whatsoever].
This language is incorporated almost verbatim into the NHL Standard Player's Contract ("SPC"), attached to the CBA as Exhibit 1; all NHL players' contracts must be in this form. The specific language of the SPC at issue, found in ¶ 5 (d), is as follows:
It is also agreed that if the Player, in the sole judgment of the Club's physician, is disabled and unable to perform his duties as a hockey player by reason of an injury sustained during the course of his employment as a hockey player, including travel with his team or on business requested by the Club, he shall be entitled to receive his remaining salary due in accordance with the terms of this contract for the remaining stated term of this contract as long as the said disability and inability to perform continue but in no event beyond the expiration date of the fixed term of this contract . . . . In consideration of payment of such salary, as well as payments made by the Club to fund the Major Medical Plan pursuant to Article 23 of the [CBA], payments made by the Club to provide Career Ending Disability Insurance pursuant to Article 23 of such Agreement and other consideration, the Player does hereby covenant that in the event he files a claim under such Career Ending Disability Insurance (unless such claim is not paid), he personally releases . . . the Club [and every other hockey related person from any further liability whatsoever].
This guaranty clause requires the employer to continue to pay Tinordi his salary through the expiration of his contract in the event of an injury sustained in the course of employment, even in the event of a permanently disabling injury. It also allows players to collect insurance proceeds in the event that any injury is career-ending. The amount of the award under the insurance policy is based purely upon the age of the claimant, apparently to take into account the expected career life a claimant would have otherwise enjoyed but for the career-ending injury. By the terms of the contract, any such insurance claim, once paid, would release the employer from any future liability.
On the night of February 22, 1999, Tinordi was playing in a game for the Capitals, when he sustained an injury to his right ankle. He broke his talus, a bone in the ankle, which rendered him unable to play. Although it would be discovered after the season had effectively ended that the injury was career-ending, *fn1 both Tinordi and the Capitals believed the injury to be a relatively minor one. Accordingly, they expected that after a normal recuperative period, Tinordi would return to play. While the ankle healed, Tinordi continued to report to the team facilities, to attend team meetings, to work out to the extent his injury permitted, and to review film of scheduled opponent teams. All of this he was required to do pursuant to the employment contract.
Throughout, Tinordi continued to collect his salary as the contract provided. Some time later, however, complications arose. The particular bone that had broken is located in a precarious part of the ankle, where damage to the bone can sometimes permanently damage the artery that supplies the bone with blood. Apparently, such damage occurred in Tinordi's ankle, resulting in the talus eventually succumbing to avascular necrosis ("AVN"), the death of bone tissue due to loss of circulation. As a result, in late October 1999, Tinordi underwent bone graft surgery to replace the dead tissue in his ankle. Despite the surgery, the AVN in his ankle rendered him permanently unable to play hockey, thus ending Tinordi's career. After the injury, pursuant to the contract, the Capitals had continued to pay Tinordi his salary through the expiration of the contract, June 30, 1999. The ...