           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pittsburgh Steelers Sports, Inc.,              :
                          Petitioner           :
                                               :
              v.                               :   No. 1257 C.D. 2018
                                               :   Argued: October 2, 2019
Workers’ Compensation Appeal                   :
Board (Trucks),                                :
                      Respondent               :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE BROBSON                       FILED: January 3, 2020


              Petitioner Pittsburgh Steelers Sports, Inc. (Employer) petitions for
review of an order of the Workers’ Compensation Appeal Board (Board), dated
August 16, 2018. The Board affirmed an order of Workers’ Compensation Judge
John McTiernan (WCJ McTiernan), which granted Anthony H. Trucks’s (Claimant)
claim petition and awarded temporary total disability benefits pursuant to
Section 309(c) of the Workers’ Compensation Act (Act).1 We now affirm.
              Claimant entered into a National Football League (NFL) Player
Contract (Contract) with Employer on January 7, 2008. (Reproduced Record (R.R.)

       1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(c). Section 309(c) of the Act
provides: “If at the time of the injury the wages are fixed by the year, the average weekly wage
shall be the yearly wage so fixed divided by fifty-two.” (Emphasis added.)
at 14a.) The Contract spanned two football seasons and was intended to begin on
the date of execution, or March 1, 2008, whichever occurred later. (Id. at 61a.)
Under the terms of the Contract, Claimant’s responsibilities included attendance at
“mini-camp(s), official pre-season training camp, all [Employer] meetings and
practice sessions, [and] all pre-season, regular season, and post-season football
games scheduled for or by [Employer],” including any all-star football games
sponsored by the NFL. (Id.) Claimant was further obligated to attend ten assigned
appearances per year on behalf of Employer and to cooperate with news media in
promoting the NFL. (Id. at 61a, 65a.) The terms of the Contract also prohibited
Claimant from playing football or engaging in any football-related activities outside
of his employment. (Id. at 61a.) In exchange for the performance of his contractual
obligations, Employer was required to pay Claimant a yearly salary of $200,000 for
the first season, and $230,000 for the second season. (Id.) Employer was further
required to pay Claimant’s compensation in weekly or biweekly installments over
the course of the regular season. (Id. at 62a.)
             Claimant filed a claim petition against Employer on August 4, 2011,
alleging that he sustained a work-related injury to his left shoulder on
August 8, 2008, during a football game in the course and scope of his employment
with Employer. (Id. at 6a-8a, 28a.) The Bureau of Workers’ Compensation assigned
the matter to Workers’ Compensation Judge Kathleen Vallely (WCJ Vallely). WCJ
Vallely scheduled the matter for mandatory mediation, at which Employer agreed to
accept liability for Claimant’s work-related injury. (Certified Record (C.R.), Item
No. 36 at 7; R.R. at 138a.) As a result, the only remaining issue for WCJ Vallely to
decide was the proper method of calculating Claimant’s average weekly wage
(AWW). (R.R. at 138a.) By decision and order circulated September 5, 2014, WCJ


                                          2
Vallely granted Claimant’s claim petition and awarded Claimant disability benefits
in the amount of $870 per week based on an AWW of $4,000, which she calculated
under Section 309(c) of the Act (First Decision). 2 (Id. at 14a-16a.)
               Claimant and Employer appealed WCJ Vallely’s First Decision to the
Board, which affirmed in part,3 modified in part,4 and remanded the matter to WCJ
Vallely to make additional findings regarding the date of Claimant’s disability and
the description of Claimant’s work-related injury.5 (Id. at 33a.) On remand, WCJ
Vallely issued a decision and order dated February 11, 2016, which was consistent
with her First Decision, as amended by her First and Second Amended Decisions.
(Id. at 36a.) Employer appealed to the Board, alleging that the Board and WCJ
Vallely incorrectly calculated Claimant’s AWW and the resulting total disability
benefit rate. (C.R., Item No. 15.) The Board, without addressing the merits of

       2
          On October 9, 2014, WCJ Vallely issued an amended decision and order, which included,
inter alia, additional findings of fact establishing the date of Claimant’s disability as well as the
description of Claimant’s work-related injury (First Amended Decision). (Id. at 20a.) On
October 31, 2014, WCJ Vallely amended her decision and order, once more, to reflect a total
disability benefit rate of $807 per week rather than $870 per week (Second Amended Decision).
(Id. at 25a.)
       3
         The Board affirmed WCJ Vallely’s First Decision with respect to the conclusion that
Claimant’s AWW should be calculated pursuant to Section 309(c) of the Act and not
Section 309(e) of the Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e). (Id.
at 30a-31a.)
       4
         The Board modified WCJ Vallely’s First Decision to correct her calculation of Claimant’s
AWW under Section 309(c) of the Act—i.e., dividing Claimant’s annual salary by 52 to yield an
AWW of $3,846.15 instead of dividing Claimant’s annual salary by 50 to yield an AWW of
$4,000. (Id. at 31a.) In doing so, the Board noted that the modification to WCJ Vallely’s
calculation of Claimant’s AWW did not change Claimant’s compensation rate as it would still be
$807 per week, the maximum compensation rate. (Id. at 31a n.1.)
       5
         It appears that the Board was not aware that WCJ Vallely’s First Amended Decision
included findings of fact addressing the description of Claimant’s work-related injury and the date
of Claimant’s disability.


                                                 3
Employer’s appeal, remanded the matter to WCJ McTiernan6 because the record was
incomplete. On remand, both parties agreed that the record was complete but for
two promotional videos, which were irrelevant to Employer’s appeal, and WCJ
McTiernan, therefore, closed the record. (WCJ McTiernan’s Decision at 3.) By
decision and order dated September 12, 2017, WCJ McTiernan granted Claimant’s
claim petition and directed Employer to pay Claimant temporary total disability
benefits at the rate of $807 per week beginning August 9, 2008, based on an AWW
of $3,846.15 per week. (Id. at 6.) In reaching this decision, WCJ McTiernan stated:
               I find [Claimant’s] proposed calculation, as modified by
               the Opinion of the . . . Board, reflects a more accurate
               assessment of [Claimant’s] [AWW] as it more accurately
               and realistically measures what [Claimant] could have
               expected to earn had he not been injured. The [C]ontract
               established the value of [Claimant’s] services to . . .
               Employer prior to the accepted work related injury and is
               therefore the appropriate basis for calculating his [AWW]
               at the time of the August 8, 2008, work injury.

(Id. at 4.) Both Employer and Claimant appealed WCJ McTiernan’s decision and
order to the Board, which affirmed. Employer now petitions this Court for review.
               On appeal,7 the sole issue is whether WCJ McTiernan and the Board
committed an error of law by calculating Claimant’s AWW pursuant to
Section 309(c) of the Act. Employer argues that WCJ McTiernan and the Board




      6
          By this time, WCJ Vallely had retired, so the matter was reassigned to WCJ McTiernan.
      7
          This Court’s review is limited to a determination of whether an error of law was
committed, whether findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.


                                               4
should have calculated Claimant’s AWW pursuant to Section 309(e) of the Act,8
because Claimant could not possibly play football throughout the year and is,
therefore, a seasonal employee. Employer contends that pursuant to this Court’s
prior decision in Ross v. Workers’ Compensation Appeal Board (Arena Football
League), 702 A.2d 1099 (Pa. Cmwlth. 1997), appeal denied, 724 A.2d 937
(Pa. 1998), all professional football players are seasonal employees. In response,
Claimant contends that the Board properly calculated his AWW pursuant to
Section 309(c) of the Act.
              In order to determine whether WCJ McTiernan and the Board properly
calculated Claimant’s AWW pursuant to Section 309(c) of the Act or whether WCJ
McTiernan and the Board should have calculated Claimant’s AWW pursuant to
Section 309(e) of the Act, we must first determine whether Claimant’s employment
was seasonal. Our courts have opined: “Seasonal occupations logically are those
vocations which cannot, from their very nature, be continuous or carried on
throughout the year, but only during fixed portions of it.” Am. Mut. Ins. Co. v.
Workmen’s Comp. Appeal Bd. (Davenport & Nat. Marble & Onyx Co.),
530 A.2d 121, 128 (Pa. Cmwlth. 1987) (quoting Froehly v. T.M. Harton Co.,

       8
       Section 309(e) of the Act relates to the calculation of the AWW for exclusively seasonal
employees and provides, in relevant part:
       [I]n occupations which are exclusively seasonal and therefore cannot be carried
       on throughout the year, the average weekly wage shall be taken to be one-fiftieth
       of the total wages which the employe[e] has earned from all occupations during the
       twelve calendar months immediately preceding the injury, unless it be shown that
       during such year, by reason of exceptional causes, such method of computation
       does not ascertain fairly the earnings of the employe[e], in which case the period
       for calculation shall be extended so far as to give a basis for the fair ascertainment
       of his average weekly earnings.
(Emphasis added.)


                                                 5
139 A. 727, 730 (Pa. 1927)). “The inquiry centers on the character of the work rather
than the period during which the business is open.” Keenan v. Workers’ Comp.
Appeal Bd. (Cocco) (Pa. Cmwlth., No. 1061 C.D. 2014, filed July 10, 2015), slip op.
at 6 (citing Froehly, 139 A. at 730).9 In the context of professional sports, this Court
has previously addressed whether a professional football player is a seasonal
employee for purposes of Section 309(e) of the Act in both Station v. Workmen’s
Compensation Appeal Board (Pittsburgh Steelers Sports, Inc.), 608 A.2d 625 (Pa.
Cmwlth.), appeal denied, 615 A.2d 1315 (Pa. 1992), and Ross.
              In Station, this Court considered whether a professional football player
with the NFL was a seasonal employee for purposes of Section 309(e) of the Act. In
that case, the employer drafted the claimant in 1986, and the claimant signed an NFL
Player Contract in July 1986. The employer hired the claimant while he was
recovering from back surgery; as a result, the claimant was unable to participate in
games or practice until October 1986. The claimant eventually earned a place on
the employer’s active roster and played in a number of games, but he was later
injured in practice and could no longer participate in games through the rest of the
season. The employer paid the claimant his full salary through the remainder of his
one-year contract—i.e., December 21, 1986. The claimant participated in try-outs
for the 1987 season but did not perform adequately, which resulted in his termination
from employment. The claimant, no longer able to play professional football, filed
a claim petition against the employer, alleging that the loss of his employment was



       9
          Pursuant to section 414(a) of this Court’s Internal Operating Procedures, 210 Pa.
Code § 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may
be cited “for its persuasive value, but not as binding precedent.”


                                              6
due to the injury he received during practice in November 1986. The referee10
calculated the claimant’s AWW pursuant to Section 309(c) of the Act and awarded
the claimant benefits at the then-maximum compensation rate. Both the employer
and the claimant appealed the referee’s decision to the Board, which affirmed in all
material respects. Thereafter, the claimant and the employer filed cross appeals to
this Court.
               This Court ultimately concluded that the claimant was a seasonal
employee.11 Station, 608 A.2d at 631. In coming to this conclusion, this Court
considered the terms of the claimant’s NFL Players’ Contract, which
provided: (1) players’ obligations began at the start of the pre-season training camp
and lasted until the regular season was complete; (2) players could not engage in
off-season employment with another football team; (3) players were to be
compensated after the completion of each game, starting with the first regular season
game; and (4) players were not compensated outside of the regular season. Based
on the terms of the NFL Players’ Contract, this Court reasoned that the prohibition
from playing football with other entities, thereby restricting the claimant from
playing football throughout the year, was evidence that the claimant was a seasonal
employee. Station, 608 A.2d at 629-30. This Court further reasoned that the
employer’s decision to fix players’ compensation by completion of games, rather


       10
          Prior to the 1993 amendments to the Act, Workers’ Compensation Judges (WCJs) were
referred to as “referees.” See King v. Workmen’s Comp. Appeal Bd. (K-Mart Corp.), 664 A.2d
1087, 1088 n.1 (Pa. Cmwlth. 1995), rev’d, 700 A.2d 431 (Pa. 1997).
       11
          Though this Court concluded that the claimant was a seasonal employee, the exceptional
nature of the facts in that case led this Court to calculate the claimant’s AWW pursuant to a prior
version of Section 309(d) of the Act, which permitted alternative methods of calculating a
claimant’s AWW in exceptional cases for the sake of fairness to claimants. Station, 608 A.2d
at 631.

                                                7
than pay compensation yearly, monthly, or pursuant to any other temporal limits,
also led to the conclusion that the claimant was a seasonal employee. Id. at 630.
             Similarly, in Ross, this Court considered whether an Arena Football
League (AFL) player was a seasonal employee for purposes of Section 309(e) of the
Act. In that case, the employer hired the claimant as a professional football player,
and the claimant entered into an AFL player agreement in May 1990. The claimant
sustained an injury to his toe during pre-season training camp and ultimately injured
the same toe once more during a post-season game in August 1990. The claimant
filed a claim petition, and the employer accepted liability for the injury by issuing a
notice of compensation payable. The employer later filed a review petition, arguing
that the claimant’s benefits were incorrectly calculated because the claimant was a
seasonal employee. The WCJ granted the employer’s petition and reduced the
claimant’s benefits pursuant to Section 309(e) of the Act. The claimant appealed the
WCJ’s decision to the Board, which affirmed. The claimant then petitioned this
Court for review.
             This Court affirmed the Board’s decision, concluding that the claimant
was a seasonal employee, and, therefore, his AWW should be calculated under
Section 309(e) of the Act. In coming to its conclusion, this Court looked to the terms
of the AFL player agreement and the seasonal nature of the AFL. This Court noted
that the AFL operated on a seasonal basis and prohibited its players from playing
football outside of the AFL player agreement. Consequently, regardless of the fact
that football could be played through the year, AFL’s football players were limited
to playing football within a specified period. Ross, 702 A.2d at 1100-01. Further,
this Court concluded that its prior decision in Station was instructive due to the
similarities between the contracts in both cases. Id. at 1101. Similarly to the AFL


                                          8
player agreement, the NFL Players’ Contract in Station prohibited players from
participating in football games outside of the league and specified that performance
was limited to certain activities during the year. Both contracts also provided that
players would begin to receive compensation only after they played a football game,
and they would continue to receive compensation during the regular season only.
This Court reasoned that given the similarities between Station and the case before
it, the claimant was necessarily a seasonal employee. Ross, 702 A.2d at 1101.
             Here, we simply cannot agree with Employer’s contention that this
Court’s prior decision in Ross stands for the proposition that all professional football
players are seasonal employees.       Rather, it is clear that, in Ross, this Court
considered the facts of the case, focusing on the claimant’s contractual obligations,
and determined that, based on those facts, that specific claimant was a seasonal
employee. Thus, in this case, we must consider the facts and terms of the Contract
to determine whether Claimant was a seasonal employee. In that regard, the term of
employment under the Contract covered two football seasons, beginning by
March 1, 2008, and ending on February 28, 2010, or February 29, 2010. (R.R.
at 61a.) Claimant’s performance obligations under the Contract were to attend all
“mini-camp(s), official pre-season training camp, all [Employer] meetings and
practice sessions, [and] all pre-season, regular season, and post-season football
games scheduled for or by [Employer],” including any all-star football games
sponsored by the NFL. (Id.) Claimant was also required to cooperate with the news
media in order to promote the NFL. (Id.) Additionally, Claimant was required to
attend ten assigned appearances per year on behalf of Employer. (Id. at 65a.) The
terms of the Contract also prohibited Claimant from playing football outside of his
employment. (Id. at 61a.) In exchange for performing these obligations, Employer


                                           9
contracted to pay Claimant a yearly salary of $200,000 for the 2008 season and
$230,000 for the 2009 season. (Id. at 61a.) Compensation was to be paid “in equal
weekly or biweekly installments over the course of the applicable regular season
period, commencing with the first regular season game played.” (Id. at 62a.)
             In the aforementioned cases Ross and Station, this Court concluded that
the claimants were seasonal employees because: (1) the claimants could only play
football in fixed periods of time—i.e., in Ross, from training camp up until October
of that AFL football season, and, in Station, from pre-season training camp through
to regular season games; (2) the claimants were prohibited from engaging in football
outside of the league during the regular or off season; and (3) the claimants began to
receive compensation only after playing in a regular season game and, thereafter,
were only compensated during the regular season.
             Concerning the first salient contractual term in this Court’s analyses in
Station and Ross—i.e., the claimants had to perform their obligations during a fixed
and defined period of time—such a term is not present in this case. The terms of
performance in the Contract mandated attendance at numerous appearances,
required football players to cooperate with the news media to promote the NFL, and
did not limit the performance of these activities to the regular football season. The
lack of seasonal limitations with respect to performance of Claimant’s obligations
indicates that Claimant’s employment was not seasonal.
             In Station and Ross, in analyzing the second contractual term based on
the specific facts in each matter, this Court viewed the term as a restriction on the
football players’ ability to play football and, therefore, determined that because the
football players could not play football throughout the year, they were necessarily
seasonal employees. Here, focusing on the totality of the circumstances in this


                                         10
matter, the second contractual term seems to assert control over Claimant outside of
the regular season. This is evident especially in light of the multitude of activities
Claimant and other football players are expected to engage in pursuant to the first
contractual term discussed in the preceding paragraph. Both Station and Ross seem
to pertain to contracts in which employees are generally not required to engage in
any activity outside of the game of football. Accordingly, in this case we interpret
the limitation on Claimant’s ability to play football outside his employment as an
indication that Claimant’s employment is not seasonal.
             The third contractual term listed in the preceding paragraph—i.e., the
claimants received compensation only after playing in a regular season game and,
thereafter, were only compensated during the regular season—is present in the
Contract. When read with other terms in the Contract, however, the clause indicates
that Claimant is not a seasonal employee. The Contract makes it clear that Employer
would pay Claimant a yearly salary in exchange for performance of all obligations
under the Contract, which includes media appearances, performance of which was
not limited to the regular football season. The fact that compensation is received
only throughout the regular season does not limit players’ obligations to the regular
season; especially where, as here, players are explicitly paid for performance of all
obligations under the Contract. Additionally, unlike the NFL Players’ Contract in
Station, Claimant contracted to receive payment in weekly or biweekly installments,
not just after playing each regular season game. Accordingly, the terms of the
Contract indicate that Claimant is not a seasonal employee but an employee whose
wages are fixed by the year. We, therefore, conclude that the Board did not commit
an error of law by calculating Claimant’s AWW pursuant to Section 309(c) of the
Act.


                                         11
Based on the above discussion, we affirm the Board’s order.




                           P. KEVIN BROBSON, Judge




                           12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pittsburgh Steelers Sports, Inc.,        :
                          Petitioner     :
                                         :
             v.                          :   No. 1257 C.D. 2018
                                         :
Workers’ Compensation Appeal             :
Board (Trucks),                          :
                      Respondent         :



                                       ORDER


             AND NOW, this 3rd day of January, 2020, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                         P. KEVIN BROBSON, Judge
