On February 3, 2023, the Commonwealth Court of Pennsylvania decided to limit wins for the Super Bowl bound Philadelphia Eagles to the field of play. In a unanimous opinion, the court found in favor of a former, injured player that the injury had caused the claimant to stop playing, prevented him from getting opportunities with other teams, and was the sole cause of ongoing wage loss from 2015 through 2019.
Emmanuel Acho, who has been more recently heard from on Fox Sports and as a guest host on the Bachelor and Bachelorette franchise, sustained a right thumb injury while playing for the Eagles in 2015. The Texas Longhorns linebacker was taken by the Cleveland Browns in 6th round of the 2012 NFL draft. Acho would miss the entire 2012 season with a leg injury and was traded to the Birds in April 2013. Ultimately, he was released in September of that year and signed to the New York Giants’ practice squad before returning to the Eagles in October 2013. Acho logged 6 total games that season, mostly on special teams.
In 2014, Acho saw an increased role with the Eagles, logging snaps in 14 games with time at linebacker and on special teams. Unfortunately, Acho sustained a first thumb injury on August 11, 2015, in practice. He continued to play but then more significantly fractured the same thumb in a preseason game against the Baltimore Ravens on August 22, 2015. The injury would require surgery and Acho was swiftly cut from the roster. He was re-signed after the pins in his thumb were removed in November 2015 but played no games and was eventually released for good just 16 days later. Despite tryouts for other teams, Acho would never see gametime on an NFL field again. He received a three-week settlement check from the Eagles, per the NFL’s Collective Bargaining Agreement.
On August 20, 2018, Acho filed a Claim Petition against the Eagles, seeking wage loss benefits from the date of the second injury and ongoing. He also filed a Review and Reinstatement Petition referable to the first date of injury. Following a full round of litigation, the Workers’ Compensation Judge (WCJ) found in favor of Acho, granting total disability benefits from August through November 2015 and then partial benefits from November 2015 through September 2019, when an IME doctor found Acho was fully recovered from the thumb injury. The Eagles were given a small credit for the settlement check. The decision was appealed to the Workers’ Compensation Appeal Board, who affirmed the WCJ's decision. The Eagles then filed a Petition to Review with the Commonwealth Court.
Now, whether it was the correct decision, or the Court panel was stacked with non-Eagles fans, the Commonwealth Court decided the Birds would begin February with a loss. Before the Commonwealth Court, the Eagles reiterated their argument that Acho’s release and lack of playing football was not due to the injury, despite the overwhelming circumstantial and medical evidence. All Eagles fans have to hope Jonathan Gannon has a better defensive scheme lined up for Sunday’s game against the Chiefs as the Court did not buy this argument. The Eagles also argued that Acho had been cut and resigned for portions of both previous seasons and that the cut in 2015 was of a similar nature. The Court responded that “[i]n 2015, Claimant was released immediately after the surgery on his thumb and was paid a three-week injury settlement. The 2015 release thus clearly was not routine or based on any past practice, but rather was due to Claimant’s injury and perceived inability to play.” They went on to conclude that the Eagles could not point to any evidence stating the injury was NOT the cause of Acho’s failure to continue playing.
The Eagles then turned their appeal to the period of partial benefits that were awarded. They argued that the WCJ ignored or failed to acknowledge that the claimant was cleared to play football three weeks after his injury, sought try-outs with other teams without making any rosters, and failed to support his disability claims with any competent evidence, including any competent medical evidence. The court again disagreed, noting that the WCJ had credited Acho’s testimony that the sequalae of the injury had kept him from performing at his previous levels. The fact that it could not be proven that other teams did not sign Acho because of the injury was ignored by the WCJ. Instead taking the position of an NFL scout, the WCJ found that because the claimant had played for two previous seasons, it could be inferred that the injury was keeping Acho from playing. The fact that Acho was a part-time bench player typically exiled to special teams was not acknowledged by the WCJ. The court concluded that “[t]he fact that Claimant at one point subjectively “hoped” and attempted to make the roster of NFL teams, a fact heavily relied upon by the employer, does not change his objective inability to play at a level that would make him attractive to teams.”
The final argument put forth by the Eagles on appeal is that Acho’s medical doctor/expert had not examined him until February 2019. Despite this, the WCJ still gave Acho’s doctor, Dr. Vagner, more credit than the employer’s IME doctor. This is a rather unsurprising and expected outcome in the world of Pennsylvania Workers’ Compensation. The Commonwealth Court again refused to disturb this credibility determination of the WCJ, holding that Dr. Vagner’s opinions were based on credible evidence and not equivocal.
Boiled down, what does this decision mean? Well, it upholds the tradition of Pennsylvania being an extremely claimant-friendly arena when it comes to Workers’ Compensation. Acho, who has established himself as an analyst and media personality, was a subpar NFL linebacker. He was a sixth-round pick with a longshot to establish a successful/lengthy NFL career. He had a platoon roster spot when he was under contract. Interestingly, he was very outspoken against the Eagles training staff in 2017 and 2018, right before the claim was filed. Unfortunately, that did not matter in this case. The WCJ found that the claimant’s lack of success in joining other teams was not due to his talent level or lack thereof, but rather a thumb fracture that Acho was cleared to return from after only three weeks. It is a disappointing decision for employers across the state. It also begs the question, could this decision spark more workers’ compensation claims from professional athletes. Surely, most professional sports CBAs have built-in clauses to handle such issues. Emmanuel Acho has now shown a fairly lucrative alternative option. Acho won his day in court and depending on the checks cut by ESPN and Fox, will likely get a nice payment from the Eagles.
But at the end of the day, the Eagles play for their second Super Bowl title on Sunday and so we say: GO BIRDS!
