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Burge v. District of Columbia Dep't of Employment Services

February 19, 2004

HEIDI A. BURGE, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT WOMEN'S NATIONAL BASKETBALL ASSOCIATION, T/A WASHINGTON MYSTICS, AND RISK ENTERPRISE MANAGEMENT, LTD., INTERVENORS



Petition for Review of a Decision of the District of Columbia Department of Employment Services (OHA 01-285)

Before Terry, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Argued February 12, 2003

Petitioner Heidi Burge, a former professional basketball player with the Washington Mystics, filed a claim for workers' compensation benefits *fn1 based on an injury she suffered in August 1998 while playing basketball for the Mystics. In July 2001 an administrative law judge ("ALJ") held an evidentiary hearing to determine, among other things, whether Ms. Burge's disability was the result of that injury and whether she was therefore entitled to compensation for lost wages.

About three months later, the ALJ issued a Compensation Order. She found that Ms. Burge had suffered a work-related injury, but denied her claim for lost wage benefits because she concluded that Ms. Burge had ceased playing basketball for personal reasons unrelated to that injury. Ms. Burge appealed this finding to the Director of the Department of Employment Services ("DOES"), who in due course affirmed the Compensation Order, ruling that it was supported by substantial evidence. Ms. Burge now seeks review in this court. For the reasons that follow, we affirm the Director's decision.

I.

After playing on several women's basketball teams in the United States and in Europe, Ms. Burge was drafted by the Washington Mystics during the Women's National Basketball Association ("WNBA") expansion draft in 1998. In the spring of that year, she signed a one-year contract with the Mystics, with an option for a one-year extension. In a game at Washington's MCI Center in August 1998, Ms. Burge was injured when she jumped for a rebound and landed on her left hip after an opposing player accidentally knocked her legs out from under her while she was in the air. Although she stayed in the game for the next few minutes, she eventually had to come out because the pain became too inte nse. In the days that followed, Ms. Burge began feeling extensive pain from muscle spasms in her lower back and left leg. *fn2 During the team's next game in New York, Ms. Burge attempted to shoot a lay-up, but her left leg gave way, and she was forced to take herself out of the game. Shortly thereafter, Ms. Burge was treated by a physician from the home team, the New York Liberty, who said that she appeared to have nerve damage and recommended an x-ray. *fn3

Upon returning to Washington, Ms. Burge was treated by the Mystics team physician, Dr. Mark Connell. After the season ended a week or so later, Ms. Burge went home to Los Angeles and continued treatment there with a physical therapist, Michael Schlink. While undergoing physical therapy, she was also training to get in shape for the upcoming basketball season in Europe; that training included such activities as riding a bicycle, running, lifting weights, and playing volleyball. *fn4

In November 1998 Ms. Burge changed physical therapists because she was not fully satisfied w ith the results she was obtaining from Mr. Schlink. She began to receive treatment from a chiropractor-therapist, Brad Barez, with whom she remained for several months until the beginning of the next WNBA season in May 1999. Ms. Burge testified that as a result of her treatment by Dr. Barez, she felt markedly better, and that she was in good physical condition and believed she was capable once again of playing professional basketball.

When she tried out for the Mystics in the spring of 1999, Ms. Burge passed the physical and made no complaints to team officials about hip or lower back pain. *fn5 In her testimony before the ALJ, however, Ms. Burge said that there was really no time since her fall during the game in August 1998 that her hip did not bother her to some degree. During the latter stages of training camp, Ms. Burge broke a finger on her left hand and was told by team physicians not to play for six weeks. Ms. Burge was released by the Mystics on June 7, 1999, without being signed to a contract extension, for what were described as "qualitative reasons." *fn6 She was paid, however, until July 12, 1999.

After being released by the Mystics, Ms. Burge was offered lucrative contracts to play in France for the 1999 and 2000 seasons, but she declined those offers because she was not willing to sign a contract that required her to state she was in good physical health in light of her ongoing hip problem. Ms. Burge was also invited to become what was known as a "replacement player" in the WNBA, but she never followed up on that invitation with the appropriate league officials. Instead, Ms. Burge moved to Houston in August of 1999 to pursue a career in sports broadcasting; after a six-week internship, however, she concluded that this was not a suitable career option for her. She nevertheless remained in Houston to be with her fiancé, who lived there. Thereafter Ms. Burge took classes and became a registered massage therapist. She also married her fiance.

On cross-examination, Ms. Burge testified that in the fall of 1998 she had minimal symptoms of pain and felt "very confident" about playing basketball. She also said that she felt good enough to play in Greece at that time before tryouts w ith the Mystics in 1999. On January 27, 1999, Ms. Burge sent a letter to the Mystics team physician stating that she was "playing and running and living without pain." She also acknowledged playing full-court basketball on a hardwood floor against men almost every day during the winter of 1998-1999, and by February 1999 she was working out for at least three or four hours a day. Ms. Burge admitted, however, that she lacked a desire to return to basketball after the Mystics released her because she was interested in settling down and having a family.

In her Compensation Order the ALJ found that the August 1998 hip injury was the source of Ms. Burge's current and ongoing hip problems, and that she was therefore entitled to reimbursement for medical expenses related to that injury. *fn7 The ALJ also determined that Ms. Burge's average weekly wage, for purposes of paying back wages, was $1,595.30. *fn8 However, the ALJ ruled that Ms. Burge's "loss of earnings as a professional basketball player [was] due to her own personal decision not to continue with her career and not the result of ...


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