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Redskins fight ex-punter’s workers’ compensation claim

The Washington Redskins on Tuesday urged Maryland’s top court to sack prior decisions requiring the team to pay Maryland workers’ compensation benefits to ex-punter Tom Tupa, who suffered a career-ending back injury during preseason warm-ups at FedEx Field in Landover in 2005.

The team’s lawyer told the Court of Appeals that Tupa’s contract expressly called for any workers’ compensation claim to be resolved under the laws of Virginia, where the Redskins are based.

David O. Godwin Jr. argued that even if Maryland law applies, it does not cover the injury Tupa sustained.

A compensable injury under Maryland’s law must be “unexpected,” said Godwin, of Godwin, Erlandson, MacLaughlin, Vernon & Daney LLC in Ellicott City. But the injury to Tupa was “certainly foreseeable” because, as a punter, he faced the constant risk of being hit by or having to tackle a player on another team.

“[For] someone who is involved in these types of contact sports, it is foreseeable that they would be injured,” Godwin said.

But Tupa’s attorney, Benjamin T. Boscolo, said Maryland workers’ compensation law protects employees even in “ultrahazardous” occupations where injuries are expected but not intended. For example, the law applies to prison guards and iron workers, he said.

“There is nothing unique about pro football,” added Boscolo, of ChasenBoscolo Injury Lawyers in Greenbelt. “His job was to punt the ball. At no time did he intend to be injured.”

The team’s argument has been on a losing streak. Maryland’s Workers’ Compensation Commission, the Prince George’s County Circuit Court and the intermediate Court of Special Appeals have all held in favor of Tupa’s request for disability benefits under Maryland law.

In the high court, Godwin argued that the contract’s Virginia “forum clause” was valid because both the team and Tupa’s agent were sophisticated parties who agreed to the provision. Clauses delineating a specific state law lend certainty to both the team and the player in an industry where “the players are going to play in many different states,” Godwin added.

Judge Sally D. Adkins asked the attorney why he advised Tupa to file for workers compensation in Maryland rather than in Virginia.

“He would have lost in Virginia,” Boscolo responded.

The lawyer explained that ordinary job-related trauma is not compensable in Virginia. Maryland has no such rule.

And Maryland has an anti-waiver provision, found at Section 9-104 of the Labor & Employment Article, that a “covered employee, or an employer of a covered employee may not by agreement, rule or regulation … waive a right of the covered employee or the employer” under the law.

“ ‘May not’ means may not,” Boscolo told the court.

The injury that ended Tupa’s 17-year career occurred when he landed awkwardly after a practice punt on Aug. 19, 2005, before a preseason game.

Tupa, who was in the second year of a four-year contract with the Redskins, was ultimately diagnosed with marked disc collapse and was told he would not likely be able to return to the NFL, according to the Court of Special Appeals’ Feb. 28 opinion.

Doctors have told him the condition will gradually worsen and he will eventually need surgery, Tupa said in August.

The former punter is now recreation director for the Town of Brecksville, Ohio.

The high court did not indicate when it will decide the case, Pro-Football Inc., D/B/A The Washington Redskins v. Thomas J. Tupa Jr., No. 29, September Term 2011.