                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia


PRO-FOOTBALL, INC.,
 t/a WASHINGTON REDSKINS AND
 GULF INSURANCE COMPANY

v.   Record No. 0275-01-4

JEFFREY A. UHLENHAKE                              OPINION BY
                                          JUDGE JAMES W. BENTON, JR.
                                                JANUARY 29, 2002
JEFFREY A. UHLENHAKE

v.   Record No. 0326-01-4

PRO-FOOTBALL, INC.,
 t/a WASHINGTON REDSKINS AND
 GULF INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Benjamin J. Trichilo (Trichilo, Bancroft,
             McGavin, Horvath & Judkins, P.C., on briefs),
             for Pro-Football, Inc., t/a Washington
             Redskins.

             Gerald Herz (Andrew S. Kasmer; Chasen &
             Boscolo, Chartered, on briefs), for
             Jeffrey A. Uhlenhake.


     The Workers' Compensation Commission entered an award of

permanent partial disability benefits in favor of Jeffrey A.

Uhlenhake, a professional football player, for injury to his

left foot and denied him an award of benefits for injury to his

left knee.     Pro-Football, Inc., trading as the Washington

Redskins, contends that injuries to a professional football
player are not covered by the Act and, alternatively, that the

evidence does not support the award of benefits for injury to

Uhlenhake's left foot.    Uhlenhake contends the evidence proved a

compensable injury to his left knee.     For the reasons that

follow, we affirm the commission's award.

                                 I.

        Beginning in 1996, Uhlenhake was employed by Pro-Football

as an offensive lineman for the Washington Redskins football

team.    From 1989 to 1996, he had been employed by other

professional football teams.    During his career, Uhlenhake

experienced a number of physical injuries in training,

practices, and games.    In 1993, he had anterior cruciate

ligament (ACL) reconstruction surgery on his left knee.      He

testified that prior to his employment with Pro-Football he "had

some [left] knee clicking, but . . . didn't have any pain or

discomfort."

        Uhlenhake testified that he sustained an injury on

September 28, 1997, during a regularly scheduled game when

another player fell on his left ankle and foot.    Uhlenhake

reported the injury to the team's trainer and continued in the

game.    The team's physician, Dr. Gordon Lee Avery, an

orthopaedic surgeon, examined Uhlenhake and noted a left ankle

sprain with swelling, bruising, and pain but no instability.

Uhlenhake applied ice to the injury and did not return to

Dr. Avery for further treatment for the sprain.

                                 - 2 -
     Uhlenhake testified that during a regularly scheduled game

on November 9, 1997, he felt a "pop and pain" in his left knee

when he "twisted or hyper-extended or did something" while

blocking an opposing player.   He testified that he continued in

the game and reported the incident to the training staff the

following day.   Uhlenhake saw Dr. Avery a few days later because

of an extreme amount of swelling.    He testified that Dr. Avery

gave him a brace and treatments of icing and electrical

stimulation.   Although Uhlenhake testified that he had no

popping or pain in his knee before this incident, he recalled

having some bursa sac problems two weeks prior to the November 9

incident.

     The assistant trainer's report indicates that Uhlenhake had

"moderate effusion of his left knee" and "did not remember when

he injured the knee."   Dr. Avery examined Uhlenhake on November

12 and reported the following:

            [Uhlenhake] has been having some vague
            discomfort about the left knee for the past
            two weeks with some associated swelling. He
            does not recall a particular injury,
            however. On careful questioning he has had
            the feeling that the knee is not stable.

            [Uhlenhake] gives a past history of an ACL
            reconstruction back in 1992, and states that
            he had his knee arthroscoped at least three
            times, but he is not certain how much
            chondral damage or meniscal damage had
            occurred.




                                 - 3 -
Dr. Avery "suggested that [Uhlenhake] try again wearing his ACL

brace to . . . stabilize the knee" and warned that if "the knee

is subluxing . . . he needs to stop playing."

     Uhlenhake testified that he wore his brace in a regularly

scheduled game on November 23.    During the game, he "had a pop

and some pain."   Dr. Avery examined him three days later and

noted Uhlenhake had pain "in the posterolateral corner" and

renewed "ACL deficiency."   He "explained to [Uhlenhake] that if

he continues to sublux he is damaging the knee and should stop

playing."   Uhlenhake participated in two more games that season.

Dr. Avery reported "an episode of subluxation of the left knee"

on December 3.    At the end of the 1997 football season,

Uhlenhake had surgery to repair the ACL on his left knee.

Dr. Joseph D. Linehan, an orthopaedic surgeon, examined

Uhlenhake in 1999 and opined that he had a permanent impairment

of his left ankle due to arthritis and of his left knee due to

the ACL injury.

     Uhlenhake filed a claim for permanent partial disability

benefits based upon injuries to his left ankle and foot and to

his left knee.    Following an evidentiary hearing, the deputy

commissioner ruled that injuries sustained in employment by

professional athletes are covered by the Workers' Compensation

Act and that Uhlenhake was entitled to awards for permanent

partial disability benefits for five percent loss of use of his

left foot and fourteen percent loss of use of his left leg and

                                 - 4 -
for medical benefits.   Pro-Football filed for review by the

commission.

     Upon its review, the commission rejected Pro-Football's

"argument that none of the alleged injuries are compensable

because they were not 'accidental' within the meaning of the

. . . Act."   In pertinent part, the commission ruled as follows:

          An injury sustained while playing football
          may be a frequent occurrence, but we
          disagree that it is a probable, intended,
          and designed consequence of the employment
          . . . . The nature of the employment and
          the foreseeability of a potential injury
          does not determine whether an injury
          sustained in the ordinary course of an
          employee's duties is an accident.

     As to Uhlenhake's foot and ankle injury, the commission

made the following ruling:

          [Uhlenhake] credibly testified to an event
          on September 28, 1997, that caused injury.
          Dr. Avery examined him on September 28,
          1997, because he had inverted his left foot
          during the game. [Uhlenhake] was diagnosed
          with a sprain. On September 29, 1997, [the
          assistant trainer] noted an injury to the
          left foot and ankle area at the previous
          game. Dr. Linehan assessed a five percent
          loss of use to the left lower extremity due
          to post-traumatic arthritis. [Pro-Football]
          presented no testimony or other medical
          evidence to the contrary. Accordingly,
          [Uhlenhake] is entitled to medical benefits
          and permanent partial disability benefits.

     In addition, the commission denied an award of benefits for

Uhlenhake's knee injury.   The commission found that "[a]t most,

the evidence established that [Uhlenhake] suffered a gradual

stretching injury of the ACL graft which progressively worsened

                               - 5 -
during the season."   The commission made special note of

Uhlenhake's extensive history of knee problems, Dr. Avery's

testimony that the ACL injury was the result of "multiple

episodes of trauma," and Dr. Jackson's testimony that the MRI

showed that the ACL was stretched.     Both parties appeal from

these rulings.

                              II.

     Pro-Football contends that "injuries resulting from

voluntary participation in activities where injuries are

customary, forseeable, and expected are not accidental within

the meaning of the Virginia Workers' Compensation Act."      It

argues that "[i]n determining whether an injury is accidental,

the relevant focus is upon the predictability of the injury

based upon the activity performed."

     As a guiding principle, the Workers' Compensation Act

provides that "'[i]njury' means only injury by accident arising

out of and in the course of employment."       Code § 65.2-101.

          The Act does not . . . specifically define
          the term "injury by accident."
          Consequently, the phrase has been the
          subject of judicial interpretation.

                 *    *   *    *      *    *      *

          [T]o establish an "injury by accident," a
          claimant must prove (1) that the injury
          appeared suddenly at a particular time and
          place and upon a particular occasion, (2)
          that it was caused by an identifiable
          incident or sudden precipitating event, and




                               - 6 -
           (3) that it resulted in an obvious
           mechanical or structural change in the human
           body.

Southern Express v. Green, 257 Va. 181, 187, 509 S.E.2d 836, 838

(1999).

     Although the burden is upon the employee "to prove how the

injury occurred and that it is compensable," Goodyear Tire &

Rubber Co. v. Pierce, 5 Va. App. 374, 387, 363 S.E.2d 433, 440

(1987), the principle is well established that "[t]o constitute

injury by accident it is not necessary that there must be a

. . . 'fortuitous circumstance' . . . [or] that there should be

an extraordinary occurrence in or about the work engaged in."

Derby v. Swift & Co., 188 Va. 336, 344, 49 S.E.2d 417, 421

(1948).   Moreover, even if an "injury was not accidental as to

cause, [if] it was as to result[, . . .] this is sufficient

under the [Act]."    Id. at 343, 49 S.E.2d at 421.   The Supreme

Court reaffirmed these principles in Lilly v. Shenandoah's Pride

Dairy, 218 Va. 481, 485, 237 S.E.2d 786, 788 (1977).      See also

R&R Construction Corp. v. Hill, 25 Va. App. 376, 379, 488 S.E.2d

663, 664 (1997).

     Pro-Football initially posits that Uhlenhake seeks to

recover for "injuries resulting from voluntary participation in

activities."   (Emphasis added.)   The evidence proved, however,

that Uhlenhake was engaged in an activity required by his

employment.    He was employed by Pro-Football to train, practice,

and play in football games, which is the business of

                                - 7 -
Pro-Football.   No evidence proved Uhlenhake undertook a

voluntary task when he engaged in the activity, which he alleges

caused his injury.    This is not a case of an injury "resulting

from an employee's voluntary participation in employer-sponsored

off-duty recreational activities which are not part of the

employee's duties."    Code § 65.2-101 (specifying an exclusion

from injury by accident).   Likewise, this is not a case in which

the "injury was the direct result of [an employee] taking a risk

of his own choosing, independent of any employment requirements,

and one that was not an accepted and normal activity at the

place of employment."    Mullins v. Westmoreland Coal Co., 10 Va.

App. 304, 308, 391 S.E.2d 609, 611 (1990).   Uhlenhake was at all

relevant times engaged in an activity within the scope of his

employment contract.

     Pro-Football argues that by engaging in conduct which is

physically dangerous and which has a high likelihood of injury,

Uhlenhake must "automatically" expect to be injured.   In support

of its contentions, Pro-Football cites two appellate court

decisions in other jurisdictions, Rowe v. Baltimore Colts, 454

A.2d 872 (Md. App. 1983), and Palmer v. Kansas City Chiefs

Football Club, 621 S.W.2d 350 (Mo. App. 1981), and argues that a

football player's traumatic injury is not an injury by accident

as contemplated by the Act.   We decline to so hold.

     In Rowe, the court specifically noted "that the parties, as

well as the Commission and the trial court, seemed to accept the

                                - 8 -
fact that professional football players are within the purview

of [Maryland's] Workmen's Compensation Law."    454 A.2d at 878.

Thus, the court held that whether "professional football players

are entitled to full coverage under the Workmen's Compensation

Law" was not an issue raised by the appeal.     Id. at 878-79.

Applying Maryland compensation law, the court "h[e]ld that an

injury sustained by a professional football player as the result

of legitimate and usual physical contact with other players,

whether under actual or simulated game conditions, cannot be

said to be an 'accidental injury' within the meaning of the

Maryland Workmen's Compensation Law."     Id. at 878.

Significantly, the court noted, however, that Maryland law was

changed after the filing of the claim to provide that

"'[c]ompensation may not be denied to an employee because of the

degree of risk associated with the employment.'"        Id. at 878

n.7.    Presumably, the court did not apply the revised statute

because it was not in effect at the time of the injury.

        In Palmer, the issue posed on appeal was the sufficiency of

the evidence to prove a professional football player sustained

"an accident within the terms of the [Missouri] compensation

law."    621 S.W.2d at 353.   The Missouri statute at issue

specifically provided that "[t]he word 'accident' as used in

this chapter shall . . . be construed to mean an unexpected or

unforseen event happening suddenly and violently, with or

without human fault, and producing at the time objective

                                 - 9 -
symptoms of an injury."    Id. at 353 n.2.    The court held that

under Missouri's "abnormal strain doctrine the [employee] must

show that the usual occupation was done in an unusual manner or

that the work was not the usual occupational task -– or that

some other unexpected source of strain produced the injury."

Id. at 354.   Applying its statute, the court held that the

"strain [Palmer experienced] was an expected incident of the

usual work task done in the usual way," id. at 356, and was not

"trauma from an unexpected or unforeseen event in the usual

course of occupation."    Id.

     The Rowe and Palmer decisions are contrary to the decisions

in the great majority of jurisdictions.      "Injuries in

[professional] sports are so routinely treated as compensable in

the great majority of jurisdictions that they seldom appear in

reported appellate decisions."    2 Arthur Larson, Workers'

Compensation Law § 22.04[1][b] (2001).    Referencing the Maryland

statutory changes, which was cited in Rowe but not in effect

when the claim arose, Larson's notes that Palmer "is the only

surviving appellate decision denying compensation for injury in

a professional team sport."     Id.

     Moreover, no evidence in this record established that

Uhlenhake performed his employment tasks with the intent or

design to bring on an injury.     See Derby, 188 Va. at 342, 49

S.E.2d at 420 (noting that when the effect of the employee's

action "was not intended or designed, the injury resulting was

                                - 10 -
produced by accidental means").    Indeed, the record establishes

that Uhlenhake was performing the tasks he was employed to

perform when he was injured.    Pro-Football offered no proof that

he was doing anything other than his required employment tasks

in the manner required.

     Pro-Football nevertheless asserts that "[p]rofessional

football players must accept the risk of injury if they wish to

play the game" and argues that "the commission's broadened

definition will extend compensability to . . . others who

voluntarily participate in employment where injury is either

highly probable or certain."    It has long been understood,

however, that the legislature abolished various common law

doctrines, including assumption of the risk, when it adopted the

Workers' Compensation Act.     Humphrees v. Boxley Bros. Co., 146

Va. 91, 95, 135 S.E. 890, 891 (1926).     See also Whalen v. Dean

Street Co., 229 Va. 164, 170, 327 S.E.2d 107, 106 (1985).      It

has also been long understood that the Act was "a compromise

greatly to the advantage of the employee," Humphrees, 146 Va. at

95, 135 S.E. at 891, and was designed to address injury by

accident resulting from "the hazard or risk to which [the

employee] was exposed . . . in the particular business" of the

employer.   Fauver v. Bell, 192 Va. 518, 521, 65 S.E.2d 575, 577

(1951).   Applying the Virginia Act, the Supreme Court has

consistently held "that 'if . . . injury . . . results from, or

is hastened by, conditions of employment exposing the employee

                                - 11 -
to hazards to a degree beyond that of the public at large, the

injury . . . is construed to be accidental within the meaning of

the [Act].'"     Southern Express, 257 Va. at 188, 509 S.E.2d at

840 (citation omitted).     See also Byrd v. Stonega Coke & Coal

Co., 182 Va. 212, 28 S.E.2d 725 (1944).     In effect,

Pro-Football's argument, if accepted, would introduce into the

workers' compensation law the concept of assumption of the risk

for a hazard that is undisputedly an incident of a worker's

occupation.

     "To say that football injuries are not accidental because

of the probability of injury is, if one looks at it more

closely, no more than to say that any activity with a high risk

factor should be ruled noncompensable."     2 Larson at

§ 22.04[1][b].    The commission properly rejected this misguided

notion and ruled that "[t]he nature of the employment and the

foreseeability of a potential injury does not determine whether

an injury sustained in the ordinary course of an employee's

duties is an accident."    The business of Pro-Football is to

engage in the activity of professional football.     It employs

individuals to constantly perform in a strenuous activity that

has risks and hazards.    As with coal miners, steel workers,

firefighters, and police officers, who are covered by the Act,

other classes of employees are regularly exposed to known,

actual risks of hazards because "the employment subject[s] the

employee to the particular danger."      Olsten v. Leftwich, 230 Va.

                                - 12 -
317, 319, 336 S.E.2d 893, 894 (1985).    The commission correctly

ruled that professional football players are not exempt from the

coverage of the Act when they suffer injuries in the game they

are employed to perform.

                               III.

     Pro-Football does not dispute that Uhlenhake sprained his

ankle on September 28, 1997, and reported the injury

immediately.   It contends that the injury was minor and that no

credible evidence supports the award of permanent partial

disability.

     In view of Code § 65.2-706, "it is fundamental that a

finding of fact made by the commission is conclusive and binding

upon this court on review."   Commonwealth v. Powell, 2 Va. App.

712, 714, 347 S.E.2d 532, 533 (1986).    Furthermore, the rule is

well established that "[m]atters of weight and preponderance of

the evidence, and the resolution of conflicting inferences

fairly deducible from the evidence, are within the prerogative

of the commission."   Kim v. Sportswear, 10 Va. App. 460, 465,

393 S.E.2d 418, 421 (1990).

     "In accordance with our well established standard of

review, we view the evidence in the light most favorable to

[Uhlenhake], who prevailed [on this issue] before the

commission."   Westmoreland Coal Co. v. Russell, 31 Va. App. 16,

20-21, 520 S.E.2d 839, 841 (1999).     The evidence proved that

Dr. Joseph D. Linehan, Jr. examined Uhlenhake's ankle and

                              - 13 -
reviewed the medical reports concerning his September 28, 1997

ankle sprain.   Dr. Linehan testified that Uhlenhake had post

traumatic arthritic degenerative changes to his left ankle

resulting from the strain on September 28, 1997.   He opined that

Uhlenhake sustained a five percent permanent partial impairment

to his left foot as a result of the arthritic changes caused by

the sprain.    Although Dr. Avery testified that he saw "no reason

to ascribe a permanency to [the strain]," he noted, however,

that "[a]rthritic issues obviously would be different."

     The commission found Dr. Linehan's testimony to be

persuasive.    The commission also found that the record contained

"no testimony or other medical evidence to the contrary."

Indeed, Dr. Avery did not opine that Uhlenhake suffered no

disability from the arthritic changes caused by the strain.     On

the record before us, we have no basis to conclude that

Dr. Linehan's testimony was not credible.   We hold, therefore,

that the commission's award for permanent partial disability

benefits for loss of use of the left foot is supported by

credible evidence.

                                IV.

     Uhlenhake challenges the sufficiency of the evidence to

support the commission's finding that his left knee injury

resulted from cumulative trauma and, therefore, is not

compensable.



                               - 14 -
     The employee bears the burden of proving by a preponderance

of the evidence that an injury by accident occurred.    A New

Leaf, Inc. v. Webb, 257 Va. 190, 195, 511 S.E.2d 102, 104

(1999).   To meet that burden the evidence must prove "(1) an

identifiable incident; (2) that occurs at some reasonably

definite time; (3) an obvious sudden mechanical or structural

change in the body; and (4) a causal connection between the

incident and the bodily change."    Chesterfield County v. Dunn, 9

Va. App. 475, 476, 389 S.E.2d 180, 181 (1990).   The commission

determined that Uhlenhake did not prove by a preponderance of

the evidence that his ACL injury occurred from an identifiable

event.

     Pro-Football's head athletic trainer and its assistant

athletic trainer testified that Uhlenhake never reported that

his left knee injury occurred from a specific incident.   Both

trainers also reviewed video records from the relevant games and

found no indication that Uhlenhake experienced a specific trauma

in those games.   Pro-Football's records indicate that Uhlenhake

reported an injury to his left knee in November 1997, but the

records also indicate "he did not remember when he injured the

knee."    In addition, Dr. Avery testified that Uhlenhake never

described or spoke of a particular event that caused his injury.

Dr. Avery and Dr. Charles Jackson reviewed the November 13 MRI

of Uhlenhake's knee, and both doctors concluded that the MRI

depicted a stretched rather than torn anterior cruciate

                               - 15 -
ligament.    Dr. Avery opined that the knee injury was the

cumulative result of playing football over many years.

     Uhlenhake argues that the record contains sufficient

evidence to establish that he incurred an injury by accident on

November 9.   He points to the team's records of injury to the

knee, the testimony of the trainer and the assistant trainer,

and Dr. Linehan's report.   The trainers testified, however, that

Uhlenhake did not report a specific incident.   The team's

records support their testimony.

     The injury report that Dr. Linehan received from Dr. Avery

notes that Uhlenhake did not report a specific injury to his

left knee.    Although Dr. Linehan reviewed the medical records,

he testified that in 1999 Uhlenhake did report to him a specific

incident and injury.   Dr. Linehan's opinion that the November 9,

1997 incident tore the ACL and necessitated the surgery was

based in substantial part upon Uhlenhake's report to him two

years after the event.

     The issue raised by conflicts in medical opinions is a

factual matter to be resolved by the commission.    Powell, 2 Va.

App. at 714, 347 S.E.2d at 533.    "The fact that contrary

evidence may be in the record is of no consequence if credible

evidence exists in support of the commission's findings."

Classic Floors v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764

(1989).   We cannot say the commission erred by not giving

Dr. Linehan's opinion on this issue persuasive effect and by

                               - 16 -
accepting the opinion of the other doctors and the other

evidence.   Credible evidence supports the commission's finding

"that the [knee] injury was the result of cumulative events."

Under the Act, such an injury is not compensable.     The Lane

Company, Inc. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703

(1985).   Because credible evidence in the record supports the

commission's ruling, we affirm the denial of benefits for the

knee injury.

     For these reasons, we affirm all aspects of the

commission's decision.

                                                    Affirmed.




                              - 17 -
