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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pittsburgh Steelers Sports, Inc., :

Petitioner

:

:

v.

: No. 1007 C.D. 2002

:
Workers' Compensation Appeal
:
Board (Williams),

:

Respondent

:

O R D E R

And now, this 8th day of January, 2003, it is hereby ordered that the
opinion filed October 23, 2002, shall be designated OPINION rather than
MEMORANDUM OPINION, and that it shall be reported.

JESS S. JIULIANTE, Senior Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pittsburgh Steelers Sports, Inc., :

Petitioner

:

:

v.

: No. 1007 C.D. 2002

:
Workers' Compensation Appeal
: Submitted: August 16, 2002
Board (Williams),

:

Respondent

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION BY
SENIOR JUDGE JIULIANTE

FILED: October 23, 2002

The Pittsburgh Steelers, Inc. and the State Workers' Compensation
Insurance Fund (collectively, Employer) petition for review from the March 27,
2002 order of the Workers' Compensation Appeal Board (Board) that affirmed, as
modified, the decision of the Workers' Compensation Judge granting benefits to
John L. Williams (Claimant). We affirm.

Claimant played professional football for Employer. On July 21,
1998, Claimant filed two claim petitions. In the first petition, Claimant alleged
that on August 25, 1995, he aggravated a pre-existing arthritic condition of his
right knee during a preseason game. The second petition alleged that, as of the
January 31, 1996 Superbowl, Claimant suffered degenerative arthritis of the right
knee resulting from or aggravated by the repetitive trauma of playing football.1

1 The parties entered into the following stipulation of facts:
(Footnote continued on next page...)

Claimant testified that he worked for Employer as a fullback for
approximately one year. Previous to that, the Seattle Seahawks employed him for
eight years. Claimant stated that on August 25, 1995, he injured his right knee
when he dove for a pass and struck his knee on the turf. He immediately sought
treatment from the team trainer, John Norwig.

As a result of his injury, Claimant's knee swelled with fluid. He was
treated by James P. Bradley, M.D., the team physician. Dr. Bradley removed the
fluid from Claimant's knee and injected a long-acting corticosteroid. On
September 26, 1995, Dr. Bradley performed arthroscopic surgery on Claimant's

(continued...)

(a) [Claimant] was paid $67,000.00 in post-season salary on
February 1, 1996. [Employer] is not entitled to a credit as these
earnings represent his wages for the season that he earned prior to
February, 1996.

(b) [Claimant] received $125,000.00 as an injury grievance
payment. [Employer] is entitled to a credit for $125,000.00.

(c) [Claimant] was paid $80,000.00 in severance pay on September
29, 1997. [Employer] is not entitled to a credit for severance
payments as his injury date was prior to the enactment of Act 57
[The Workers' Compensation Act (Act) of June 2, 1915, P.L. 736,
as amended, by the Act of June 24, 1996, P.L. 350].

(d) Deferred compensation from the Seattle Seahawks in the
amount of $600,000.00 were [sic] for services for a prior year.
[Employer] is not entitled to a credit for salaries paid by another
employer.

(e) [Claimant] received $19,110.00 in October of 1996 and
$22,646.00 in October of 1997 under the White NFLPA Settlement
Fund. [Employer] is not entitled to a credit as this amount was not
paid by [it].
WCJ's Decision, p. 7-8.
2

knee. Throughout the season, Dr. Bradley continued to remove fluid from
Claimant's knee and, every other week, provided a cortisone injection that enabled
him to play. Prior to every game, Claimant received a Toradol shot to numb his
knee. Although Claimant was unable to participate in team practices on a regular
basis, he missed only one game of the regular season.

After the Superbowl, Claimant returned to Florida and received
medical treatment for his knee from Doctor Peter Indelicato. Claimant
acknowledged that he suffered a collateral ligament strain to his right knee in 1984
while playing college football. He further stated, however, that the 1984 surgery
was less painful than the 1995 surgery and that the 1995 injury was primarily
around his kneecap. Claimant also acknowledged that he received $125,000.00 as
a result of grievance arbitration after termination of his employment.

Dr. Indelicato, a board-certified orthopedic surgeon, testified that in
September of 1995, he began treating Claimant for pain and swelling of the right
knee.2 Upon examination, the doctor noted that Claimant's knee had moderate to
severe fluid build-up rendering Claimant unable to fully extend it. X-rays revealed
mild degenerative arthritis of the medial joint compartment and patella femoral
joint. There was also evidence of previous damage to Claimant's posterior cruciate
ligament, which precedes degenerative arthritis. At that time, Dr. Indelicato
aspirated the knee and injected anti-inflammatory medication.

Subsequent examinations continued to reveal repetitive episodes of
swelling, degenerative pain and discomfort. Consequently, in July of 1996, Dr.
Indelicato performed surgery on Claimant's knee, whereby he scraped the diseased
cartilage down to the bone. Claimant progressed fairly well after the surgery and

2 Dr. Indelicato previously performed arthroscopic surgery on Claimant in 1984 for a
medial collateral ligament tear. In 1985, the doctor treated Claimant for a shoulder problem.
3

was able to exercise and train without serious after-affects. Dr. Indelicato opined
that Claimant suffered from post-traumatic degenerative arthritis based on chronic
posterior cruciate insufficiency of the knee joint caused by a torn posterior cruciate
ligament and the continued play of football.

Claimant also presented the testimony of Dr. Bradley, the team
physician. Dr. Bradley, also a board-certified orthopedic surgeon, treated Claimant
immediately after the August 1995 preseason game. He diagnosed Claimant with
posterior cruciate ligament tears and degenerative joint disease. Throughout
September of 1995, Dr. Bradley noted continued swelling of the kneecap, which he
treated with anti-inflammatory injections.

On September 26, 1995, Dr. Bradley performed arthroscopic surgery
on Claimant. He found that Claimant suffered significant arthritis of the medial
condyle of the patellofemoral joint. Although swelling continued at a lesser rate,
Claimant was able to start exercising and participating in team practices as
tolerated. The doctor continued to aspirate Claimant's knee as needed.

Dr. Bradley testified that he examined Claimant in 1994 prior to
Employer's acquisition of him and found Claimant's knee to be functional. At that
time, Claimant exhibited signs of collateral ligament laxity, posterior cruciate
laxity, posterior lateral corner laxity, and degenerative joint disease. Dr. Bradley
stated that the continued play of professional football accelerated Claimant's
degenerative joint disease because of the continual torquing, twisting, stopping and
starting of the body.

Both doctors agree that Claimant should not continue to play
professional football.

In opposition to Claimant's petitions, Employer presented the
testimony of Jack P. Failla, M.D. Based upon his examination of Claimant and
review of the medical records, Dr. Failla opined that Claimant had completely
4

recovered from the 1995 injury and that his degenerative joint disease was the
result of his prior 1984 football injury. He acknowledged, however, that
Claimant's work for Employer was a contributing factor to the current condition of
his knee.

The WCJ found that Claimant sustained his burden of proving that he
sustained injuries to his right knee on August 25, 1995 and on January 31, 1996;
the latter consisting of degenerative arthritis that was developed or aggravated by
the repetitive trauma of playing football for Employer.3 The WCJ found the
testimony of Doctors Indelicato and Bradley to be credible, in part, because both
agreed that Claimant's job duties caused further damage to his right knee and
accelerated his degenerative arthritic condition. Accordingly, the WCJ awarded
Claimant total disability benefits for the period of January 31, 1996 through
September 19, 1999 and partial disability benefits from September 19, 1999 and
continuing forward.4

The parties filed cross-appeals to the Board. On appeal, the Board
affirmed as modified.5

Employer first maintains that Claimant failed to give proper notice of
his injury. Section 311 of the Act provides, in part, that

[u]nless the employer shall have knowledge of the
occurrence of the injury, or unless the employe or
someone in his behalf, ... shall give notice thereof to the

3 Although the WCJ found that Claimant sustained an injury on August 25, 1995, he
dismissed that claim petition on the ground that the disability from that injury was caused by
years of playing football and was accelerated and aggravated during his last year of employment.
4 The WCJ reduced Claimant's total disability benefits to partial benefits because
Claimant obtained employment with Hastings Youth Academy on September 20, 1999.
5 On appeal, we are limited to determining whether constitutional rights were violated, an
error of law was committed or whether the necessary findings of fact are supported by
substantial evidence. Second Breath v. Workers' Compensation Appeal Board (Gurski), 799
A.2d 892 (Pa. Cmwlth. 2002).
5

employer within twenty-one days after the injury, no
compensation shall be due until such notice be given,
and, unless such notice be given within one hundred and
twenty days after the occurrence of the injury, no
compensation shall be allowed.

77 P.S. §631.

The WCJ found that Claimant informed John Norwig, the team
trainer, of his injury. Employer complains that Claimant failed to establish that
Norwig was a supervisor or someone other than a co-employee. Whether a
claimant has complied with the notice provisions of the Act is a question of fact for
the WCJ. City of Philadelphia v. Workers' Compensation Appeal Board (Wilson),
767 A.2d 26 (Pa. Cmwlth. 2001).

We begin by noting that the employment contract between Claimant
and Employer provides that "if Player is injured in the performance of his services
under this contract and promptly reports such injury to the Club physician or
trainer, then Player will receive such medical and hospital care during the term of
this contract . . . ." (R.R. 90) (Emphasis added.) Thus, under the terms of the
employment contract, prompt notice to the trainer provides a player with assurance
that his medical bills will be covered if he is injured during the performance of his
duties. If notice to the trainer is sufficient to ensure medical benefits, it is logical
that the same procedure would be sufficient to notify Employer that the injury
occurred and that it was work-related. Additionally, by designating the trainer as a
person to be notified of an injury, the contract elevates him to the status of
Employer's representative and not just another co-employee.

Moreover, Claimant was treated immediately on the sidelines after
leaving the field by the trainer and treated by Dr. Bradley within a week of his
injury. Notice of an injury to the team's doctor is sufficient to satisfy the notice
requirements of Section 311. See generally Sheetz v. Workmen's Compensation
6

Appeal Board (Firestone Tire & Rubber Co.), 522 A.2d 146 (Pa. Cmwlth. 1987)
(Section 311 clearly provides that no notice is necessary if the employer has actual
knowledge of the occurrence of the injury); Reed v. Glidden Co., 318 A.2d 376
(Pa. Cmwlth. 1974). Accordingly, the WCJ did not err in concluding that Claimant
promptly notified Employer of his injury.

Employer further complains that the WCJ's determination is not
supported by substantial evidence and that Claimant failed to demonstrate that his
disability continued throughout the proceedings. In a claim petition, the claimant
bears the burden of proving all the necessary elements to support an award,
including the burden to establish the duration of the disability. Inglis House v.
Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592
(1993).

In his claim petition, Claimant alleged that the repetitive trauma of
playing professional football either caused or aggravated the degenerative arthritis
of his right knee. It is well settled that for an injury to be compensable under the
Act, it is not required that the injury resulted from any sudden occurrence or
accident; it may be due to daily trauma or aggravation of a preexisting condition.
General Elec. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d
921 (Pa. Cmwlth. 1991). In order to demonstrate that an aggravation has occurred,
the claimant must demonstrate that the intervening incident materially contributed
to the disability. SKF USA, Inc. v. Workers' Compensation Appeal Board
(Smalls), 728 A.2d 385 (Pa. Cmwlth. 1999). Whether or not the intervening
incident materially contributed to the disability is a question of fact for the WCJ.
Id.

When asked whether Claimant's employment with Employer had an
effect on his preexisting condition, Dr. Bradley responded:
7

Of course. The forces that are required to play
professional football on a knee, . . . are astronomic. The
cutting, the hitting, the pounding that they take . . . the
natural history is to slowly get worse, especially the
arthritis of the medial compartment and the
patellofemoral joint .... It's just the rate at which it
happens is a little more accelerated in something like a
sport that requires tremendous torquing, twisting,
stopping, starting types of activities.

(R.R. 55-55a) Dr. Bradley further acknowledged that the force with which the
game is played accelerated the degenerative process. (Id.)

Similarly, Dr. Indelicato testified that Claimant's employment with
Employer had a negative effect on Claimant's knee because of the continuous
training and pounding. (R.R. 13) Although Dr. Indelicato did not believe that
Claimant's employment was a substantial contributing factor with regard to the
condition of Claimant's posterior cruciate ligament, he did opine that the
employment was a substantial contributing factor in the condition of the surface of
Claimant's knee joint. (R.R. 14)

Based on this testimony, the WCJ concluded that Claimant's
degenerative arthritis of the knee was caused or aggravated by his employment
with Employer. The WCJ accepted both doctors' testimony as credible.
Credibility determinations are within the exclusive province of the fact finder.
Lehigh County Vo-Tech Sch. v. Workmen's Compensation Appeal Board (Wolfe),
539 Pa. 322, 652 A.2d 797 (1995).

Employer next complains that Claimant failed to demonstrate that his
disability continued throughout the pendency of the proceedings. It relies on a
statement made by Dr. Indelicato, wherein he stated that he could not opine
whether Claimant's knee returned to its pre-injury condition as of his February
1997 examination. Employer's contention, however, completely ignores the
8

credited testimony that Claimant should never play professional football again
because of the condition of his knee.

Both doctors testified that if Claimant were to resume that type of
employment, the entire process would repeat itself. Indeed, Dr. Indelicato testified
that if Claimant resumed play, the repetitive trauma to his knee and the normal
aging process would improve the likelihood that total knee replacement surgery
would be necessary. Thus, the record is sufficient to conclude that the aggravation
of Claimant's degenerative joint disease and the repetitive trauma to his knee
disabled him from resuming his career as a professional football player.

Finally, Employer argues that the Board erred in reversing the WCJ's
finding that it was entitled to a $125,000.00 injury grievance credit against
workers' compensation benefits paid during the periods of total and partial
disability. Specifically, the Board determined that the WCJ erred in allowing a
credit against total disability payments made by Employer, as opposed to a credit
against partial disability payments only. It therefore modified the WCJ's order to
provide that the $125,000.00 injury grievance payment credit began on September
20, 1999, the date that Claimant was deemed partially disabled.

Section 308.1(c)(3) of the Act6 provides that in the case of
professional athletes, any compensation paid under the Act with respect to partial
disability shall be reduced by the after-tax amount of any "injury protection or
other injury benefits payable by the employer under a contract for hire or collective
bargaining agreement." (Emphasis added.) Section 308.1 affects only professional
athletes who have demonstrated an ability to secure post-injury wages; it has no
effect on an athlete's right to receive total disability benefits or medical treatment.

6 Added by Section 10 of the Act of July 2, 1993, P.L. 190, commonly referred to as Act
44, as amended, 77 P.S. §565(c)(3).
9

Lyons v. Workers' Compensation Appeal Board (Pittsburgh Steelers Sports, Inc.),
803 A.2d 857 (Pa. Cmwlth. 2002).

Employer's argument is two-fold: that Section 308.1(c) is silent as to
a credit against total disability payments and that the credit should be given dollar
for dollar, not after tax. Because Section 308.1(c) does not address total disability
payments, Employer relies on cases decided before Act 44 to conclude that a dollar
for dollar pre-tax credit should be given against all disability payments made.
Employer
cites
Wallace v. Workers' Compensation Appeal Board
(Pittsburgh Steelers), 722 A.2d 1168 (Pa. Cmwlth. 1999) and Pittsburgh Steelers
Sports, Inc. v. Workmen's Compensation Appeal Board (Erenberg), 604 A.2d 319
(Pa. Cmwlth. 1992) in support of its position. In both cases, we determined that an
employer was entitled to a dollar for dollar credit for injury protection benefits paid
to a professional athlete where the terms of the collective bargaining agreement
provided that said benefits were in lieu of compensation and were not wages. In
both cases, however, the injuries complained of occurred prior to Act 44 and thus,
Section 308.1 was not applicable. Because there was no statutory law addressing
such a credit, we looked to the parties' agreements when determining whether a
dollar for dollar credit was due against workers' compensation benefits.

However, Claimant's injury occurred after the enactment of Act 44.
Therefore, its provision relating to the compensation of professional athletes is
controlling. The law in effect at the time of injury determines the method of
calculating benefits, and by extension, the calculation of any credits against those
benefits. See Giant Eagle, Inc./OK Grocery v. Workers' Compensation Appeal
Board (Weigand), 764 A.2d 663 (Pa. Cmwlth. 2000), appeal denied, 566 Pa. 651,
781 A.2d 149 (2001).

Employer further suggests that since there is nothing in Section 308.1
or the Act generally that prohibits this Court from concluding that it is entitled to a

10

credit against total disability payments, we may enforce the terms of the
employment contract. While the Act does not address credits against total
disability payments in the case of professional athletes, we find only one flaw in
Employer's argument: the courts have consistently held that where certain things
are specifically designated in a statute, all omissions should be understood as
exclusions. Latella v. Unemployment Compensation Board of Review, 459 A.2d
464 (Pa. Cmwlth. 1983).

By its exclusion, the General Assembly has therefore determined that
a credit against total disability benefits is not allowed where the injured
professional athlete has received funds from various sources.7 If we were to accept
Employer's argument, we would be effectively inserting words into the statute that
the legislature has chosen to exclude. However, "it is a canon of statutory
construction that a court has no power to insert a word into a statute if the
legislature has failed to supply it." Garcia v. Community Legal Servs. Corp., 524
A.2d 980, 984 (Pa. Super. 1987).8

Accordingly, we affirm.

7 See generally Lyons (because professional athletes do not constitute a suspect class, the
legislature need only a rational basis to conclude that they could be treated differently from
others in terms of workers' compensation because they willfully risked injury for lucrative
compensation).

11

JESS S. JIULIANTE, Senior Judge
Judge McGinley did not participate in the decision of this case.

(continued...)

8 For this same reason, we cannot conclude that the Board erred in determining that
Employer was entitled to a credit based only on the after-tax funds received by Claimant.

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pittsburgh Steelers Sports, Inc., :

Petitioner

:

:

v.

: No. 1007 C.D. 2002

:
Workers' Compensation Appeal
:
Board (Williams),

:

Respondent

:

O R D E R

AND NOW, this 23rd day of October, 2002, the March 27, 2002 order
of the Workers' Compensation Appeal Board is AFFIRMED.

JESS S. JIULIANTE, Senior Judge