MWCC NO. 99-02941-G-5525

JEFF ROHLICEK                                                                                                                               CLAIMANT

vs.

MISSISSIPPI HOCKEY, LLC                                                                                                           EMPLOYER
AND
NORTH AMERICAN SPECIALTY INSURANCE                                                                             CARRIER

APPEARING FOR CLAIMANT:
Honorable Al Chadick, Attorney at Law, Kosciusko, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Leland S. Smith, III, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on March 26, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Employer/Carrier's "Petition for Full Commission Review".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Amended Opinion of the Administrative Judge" dated December 1, 2000.

SO ORDERED, this the 27th day of March, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC NO. 99 02941-G-5525-C-00

JEFF ROHLICEK                                                                                                                              CLAIMANT

vs.

MS HOCKEY LLC                                                                                                                           EMPLOYER
AND
NORTH AMERICAN SPECIALTY INS.                                                                                           CARRIER

APPEARING FOR CLAIMANT:
Al Chadick, Attorney at Law, Kosciusko, Mississippi

APPEARING FOR EMPLOYER/CARRIER:
Leland S. Smith, III, Attorney at Law, Jackson, Mississippi
 

This opinion amends a previous opinion of the undersigned dated November 28, 2000 to clarify an error of fact contained therein. On page 2 of the order dated November 28, 2000, the undersigned noted as follows: From college graduation until his date of injury his primary employment has been in the arena of professional hockey. This sentence contains a factual error, as the claimant did not graduate from college and has only taken one or two junior college courses. Thus, the amended opinion, reflected below in full, corrects that error. There are no other changes between the original and amended opinions.

Proceedings were initiated in this cause by the filing of claimant's Petition to Controvert on May 12, 1999, alleging an injury to claimant's left lower extremity occurring in the course and scope of his employment with Mississippi Hockey LLC (hereinafter "LLC") while playing for the Sea Wolves on December 23, 1997. Claimant's injury was admitted by the employer and carrier. At the hearing on the merits of this petition, held on October 2, 2000 in the conference room of the Mississippi Workers' Compensation Commission building, Jackson, Mississippi, the parties stipulated to the following:

1. After the claimant's injury, he received his usual salary until the 1997-1998 East Coast Hockey League's season ended at the end of March, 1998.

2. After the season's end, the claimant received temporary total disability benefits in the amount of $270.67 each week through November 10, 1999.
 

The issues for decision by the Administrative Judge are the following:
 

The claimant, Jeff Rohlicek, testified that he is a 34 year old resident of Saskatoon, Saskatchewan. Mr. Rohlicek graduated from high school and has taken a couple of junior college accounting classes. From high school graduation until his date of injury his primary employment has been in the arena of professional hockey.²

The claimant testified that during his hockey career, his wages ranged as did his opportunities to play in the major or minor leagues. For example, during his first year to play for periods of time in the majors (1987), he played 20 games for Vancouver and the remainder for its farm league. His contract wage in the minors was $30,000.00 Canadian, as compared to $107,000.00 Canadian in the majors.³ At the time of his injury, he testified that he earned $500.00 per week from the league, and was also provided with an apartment, cable, etc., noting that his only expenses during the season were for food and entertainment. Although the employer and carrier provided no testimony to rebut the claimant's testimony relative to average weekly wage, they did introduce exhibit E/C-3, which is the employer and carrier's response to an inquiry requesting, among other items, the claimant's wage. This document indicates that the claimant's wage was $400.00 per week.⁴

The claimant testified that on the occasion of his injury, he was skating at a high speed while playing for the Sea Wolves in a game in the Gulf Coast Coliseum when he received a "chop" into his left leg from the stick of an opposing team member skating behind him. He testified that he slid into the goal post, which did not give away as it should, and he heard and felt a pop in his left knee. He did not immediately seek medical treatment but arose and tried to continue to skate. He soon discovered that he was unable to do so, and left the game to seek medical treatment. December 23, 1997 was the last date that he played professional hockey.⁵ The claimant testified that after surgery in New Orleans, he returned to Biloxi for the remainder of the season, essentially immobilized as a result of the surgery and the cast, and at the end of the season he went home to Chicago and began therapy.

The claimant testified that he moved to Saskatoon in June of 1998 and began therapy and treatment under Dr. McKerrell. He was released from Dr. McKerrell's care in May of 1999 and testified that the date of his release was the last occasion that he was treated by Dr. McKerrell.

Thereafter the claimant determined to try hockey again. Although he knew that he had a difficult time at rehabilitation and his surgeon had advised him that his knee would not be 100%, he rented a rink to make a determination of his abilities. He testified that he determined that he could not return to professional hockey on any level for the following reasons:
 

The claimant testified that 95% of hockey is "leg drive" - the ability to move forward aggressively on ice. As a result of wasting of the leg, absence of strength and flexion, and pain, he could not be a good enough skater to play professionally.

Apparently the claimant's medical providers agreed. Physicians, trainers and the claimant determined that he had sustained a career ending injury and he applied (with supporting documentation from the physicians and trainers) for a career ending injury payment available to qualified applicants from the Professional Hockey Players' Association (hereinafter "PHPA"), which is the player's union for the professional leagues.⁶ The claimant testified that he paid between $625.00 and $650.00 per year to the PHPA for benefits which included a health plan, a retirement plan, access to a career ending injury fund and other entitlements. The claimant was awarded a career ending injury benefit payment of $12,500 paid by Unam Canada, the insurer.

The claimant's first work after his injury was in November of 1998, when he began working in the accounting department of the dealership Ens Lexis Toyota, an auto dealership in Saskatoon owned by his father-in-law. He testified that he had no experience in accounting except the two junior college courses that he had taken, and that they in no way prepared him for this position. He testified that he is being trained on the job by the women currently employed in the Ens accounting department.⁷ Although his father-in-law's general plan is to allow his son and son-in-law (the claimant) to take over his four Toyota dealerships, the claimant testified that he is required by his father-in-law to learn the business "from the ground up" and is required by Toyota to complete a "dealership principles" school of one year's duration and also be approved by Toyota's board before such a transaction could be completed. He testified that he currently earns $30,000.00 Canadian from the dealership. His employment offers no physical demands; he generally works at a computer or using a telephone.

The claimant testified that he can walk daily and that, without undue exertion, his knee reacts normally, and experiences no physical problems as a result of his regular employment at the dealership. However, he testified that when he occasionally skates for recreation, his knee swells and he is required to ice it. He testified that as a result of the injury, he cannot crawl, squat, bend the knee significantly, or bike-ride. He does not have full knee flexion. He experiences pain on exertion and additionally when the weather turns humid or cold.

The, claimant denied that he had intended 1997-1998 to be his last season in professional hockey, although he admitted that he may have mentioned that in order to obtain a longer contract from his team. He testified that currently there are many professional players who play past their early 30s because the financial remuneration has become so significant.

The claimant, on cross-examination, admitted that he continued to play golf.

Dr. Jeff McKerrell, a physician licensed to practice in the Province of Saskatchewan, Canada, and an orthopaedic surgeon, testified by medical records affidavit that the claimant was first seen by him on July 14, 1998 on referral from Dr. Enweani. The physician noted that the claimant had sustained a tear of the posterior cruciate ligament, lateral collateral complex, and popliteus in his left knee and had undergone reconstructive surgery performed by Dr. Carlos Ganche on February 17, 1998. Dr. McKerrell reported that this surgery consisted of an arthroscopically-assisted achilles allograft, posterior cruciate reconstruction and open repair of popliteus tendon and lateral collateral complexes.⁸ Dr. McKerrell reported that the claimant underwent two months of physiotherapy in Chicago. He noted a loss of range of motion of the claimant's left knee, minimal swelling on examination, and a report of minimal feeling of instability and increasing retropatellar discomfort. Dr. McKeller measured a 2 cm. quadriceps wasting, left.

The claimant underwent a second arthroscopy on February 5, 1999 as a result of objective findings of diminished stability in the knee secondary to the posterior cruciate tear. The physician found a degenerative tear of the posterior horn of the lateral meniscus, which he resected, and two-loose bodies in the knee, which he removed. The physician found that the wasting continued.

Dr. McKerrell testified that the claimant's knee injury was a significant one, and that as a result the claimant has diminished stability in his left knee secondary to the posterior cruciate tear. He noted that although the graft was functioning well, the instability remains on activities including acceleration, deceleration and rotation. He testified that the claimant is statistically at an increased chance of developing degenerative osteoarthritix in his knee secondary to both the ligamentous injury and the meniscus tear and at a slightly increased risk for developing further meniscal tears. Dr. McKerrell opined that the wasting found would be long term and that the claimant is not expected to regain further quadriceps or hamstring muscle bulk with time, even with on-going training. Dr. McKerrell found moderate posterior laxity and moderate lateral collateral complex laxity resulting in a 25% impairment of the lower left extremity.⁹

Physiologically, Dr. McKerrell testified that the claimant is restricted in his ability to perform vigorous activities that involve forceful turning, twisting, acceleration and deceleration, and that although "it will be possible for Mr. Rohlicek to skate in the long run ... he will likely never skate to the ability level that he had previously."¹⁰ The physician noted that there would be no restriction on the claimant playing golf, but he would be restricted from court sports, such as tennis or basketball, by instability.

Dr. McKerrell testified that the claimant is fit for normal work as of May 1, 1999.

Lawrence James Landon testified by deposition taken on June 1, 2000. He testified that he is the executive director of the PHPA, responsible, in pertinent part, for obtaining various benefits and career enhancements for PHPA members. He testified that in his position, he has been involved in the collective bargaining agreement with the East Coast Hockey League (hereinafter "ECHA"). He testified that he quarterbacked the negotiations for this agreement in the 1997-1998 season and other years. He testified that in the negotiations between the league and the PHPA, a dollar amount per player is negotiated to be paid by the league per player, which dollar amount is spent as the PHPA determines for the benefit of the players.¹¹ The dollar amount reached is billed, divisible in monthly installments, to the league teams, who submit funds to the PHPA, which deposits the funds into the PHBA/ECHA Health and Welfare Trust (hereinafter "trust"), which pays premiums for policies and benefits purchased by the PH PA without approval from the NHL or the teams.

On cross-examination, Mr. Landon indicated that Mr. Rick Adams, commissioner of the league, had a great interest in insuring that career ending disability benefits were in place. He further indicated that the claimant would not be required to pay any portion of his career ending benefit back to the trust were he to receive an award of compensation from the Commission.
 

After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds as follows:

1. The claimant suffered an admittedly compensable injury on December 23, 1997 while in the employ of the LLC.

2. The claimant reached maximum medical improvement on May 1, 1999.

3. The critical issues, as identified by the parties, are the credit due the employer and carrier for overpayment of temporary total disability benefits, if any, the credit due the employer and carrier for the payment of the career ending disability benefit of $12,500, and the extent of permanent disability suffered by the claimant as a result of an admitted injury to a scheduled member, the left lower extremity, within the meaning of Mississippi Code Annotated, section 71-3-17(c) (1972 and Supp. 1999).

4. The evidence is clear that the claimant continued to receive his salary in lieu of compensation from the date of injury until the end of March, 1998. Thereupon, he began to receive temporary total disability compensation at the rate of $270.67, which he received until November 10, 1999. The evidence is also clear that the claimant began working for his father-in-law in November of 1998 and, based on his compensation; worked the latter 3/5 or 18 days of the month.¹² Thus it would appear that the claimant began gainful employment on or about November 13, 1998. All payments of disability subsequent to November 13, 1998 would be paid toward the claimant's permanent disability.

5. The employer and carrier argue that they are entitled to a credit for the career ending injury benefit of $12,500 paid to the claimant, and that this credit should apply toward any permanent disability owed.¹³ This benefit was paid to the claimant as a result of insurance obtained in his behalf by the PHPA, of which he was a dues-paying member. The testimony of Mr. Landon reveals that the league teams contribute to the PHPA in order to fund benefits obtained on behalf of the players. However, there is no compelling testimony on which the undersigned can conclude that this benefit is other than an earned benefit of employment.

Bowen v. Magic Mart of Corinth, MS, 441 So.2d 548 (Miss. 1983) deals with the collateral source rule, albeit relative to a medical insurer. In determining that the employer and carrier was not entitled to credit for medical expenses paid, as a collateral source, by claimant's own medical insurer, the Supreme Court quoted the general rule from 100 CJS Workmen's Compensation, section 391 (1958) and 4 Larsen's Workmen's Compensation Law, section 97.51 (1982), both of which support the proposition that the employer and carrier should not be allowed a credit. The court also cited with approval Southwestern Bell Telephone v. Siegler, 240 Ark. 132, 398 SW2d 531 (1966), Ashe v. Barnes, 255 NC 310, 121 SE2d 549 (1961), and Alabam Freight Lines v. Chateau, 57 Ariz. 378, 114 P2d 233 (1941), which compel the same conclusion. There is no reason to find, based on the facts in this record, that the payment in question was other than a benefit of the claimant's employment for which employer is not entitled to be allowed a credit against paid or to be paid.

6. The evidence is unrebutted that the entirety of the claimant's entire pre-injury work history consists of playing professional hockey or training younger hockey players, with the exception of two to three week stints of employment at his father's and uncle's business between seasons and the commencement of the hockey schools at which he worked. The medical evidence unequivocally shows that, as a result of the rather substantial admitted injury to his left leg, claimant is now precluded from returning to hockey at the level that he once played - the only field of work for which the claimant is qualified by reason of age, education and experience. Accordingly, the claimant is entitled to 100% loss of industrial use of the left lower extremity.¹⁴

7. The fact that the claimant has obtained "other" employment within his limitations and restrictions speaks well for the claimant's character and the generosity of his father-in-law. However, his ability to perform "other jobs, unrelated to the worker's present employment" does not reduce the extent of the claimant's loss of industrial use of the scheduled member. Robinette v. Henry I. Siegal Co., No. 1999-WC-00044-COA (Miss. App. February 8, 2000), slip op. at p. 3-4.

8. Since actual wage loss (as distinguished from loss of wage earning "capacity" as a result of industrial incapacity) is one of the many factors, albeit a minor one, in assessing the loss of industrial use of a scheduled member (see McGowan v. Orleans Furniture, Inc., 586 So. 2d 163 (Miss. 1991)), it is important to note that this factor of wage loss is met by the preponderance of proof in this case. At the time of hearing, the claimant had an average weekly wage which was the same as his average weekly wage at the time of injury, if one did not include the value of his living expenses such as an apartment and utilities, which, according to the claimant's unrebutted testimony was provided by the league. This fact makes his wage loss substantially greater than the actual computation which would be applicable were this not a scheduled member case.¹⁵
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant as follows:

1. Temporary total disability benefits in the amount of $270.67 per week from December 23, 1997 through May 1, 1999, with credit for sums previously paid and for the weeks in which wages were earned by the claimant during this period;

2. Permanent partial disability benefits in the amount of $270.67 per week commencing May 1, 1999, and continuing for a period of 175 weeks, with credit for weeks of such benefits previously paid by the employer and carrier which are not attributable to periods of temporary disability;¹⁶

3. Medical services and supplies pursuant to Mississippi Code Annotated, section 71-3-15 (1972 and Supp. 1999) for so long as the nature of the injury and the process of the recovery may require, with fees and charges to be limited to that allowed pursuant to the Mississippi Workers' Compensation Medical Fee Schedule; and

4. Penalties on unpaid amounts of compensation as appropriate and authorized by Mississippi Code Annotated, section 71-3-37 (1972) and interest at the legal rate.

SO ORDERED this the 1st day of December, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. The parties admit that Dr. Jeff McKerrell, who has provided the only medical testimony in this case, has established the claimant's date of maximum medical improvement as May 1, 1999. The parties also admit that the claimant began gainful employment sometime in November of 1998.

2. The claimant testified that he began playing in junior hockey leagues at the age of 14 and was drafted into the National Hockey League (hereinafter "NHL") in 1984 at the age of 18, when he had one more year of junior hockey league eligibility. He was under contract to NHL teams continuously from the age of 18 until the end of the 1997-1998 season. He testified that during off seasons he would pick up odd jobs with his father's or uncle's business (working perhaps two to three consecutive weeks) and would then work for the primary portion of the off season at hockey schools, giving instruction to younger players.

3. The claimant testified that $30,000 Canadian converted to approximately $20,000 American.

4. There is no authoritative primary evidence in the record of the claimant's actual weekly wage; nor is there any evidence of the value of other benefits received by the claimant (rent, etc.) Nevertheless, the determination in a scheduled member case is not whether there is a wage loss post-injury; it is whether the injury has impacted the injured worker's ability to perform the typical functions associated with his particular employment to a greater degree than the functional or medical percentage of impairment, thus rendering a greater industrial loss than functional loss. In order to make this assessment, wage loss is but a minor consideration.

5. The claimant testified that he has played recreational hockey in Saskatoon since his injury. His brother-in-law is a member of a recreational team called the Third Eye Flyers. He tried playing on this team at the request of his brother-in-law, who was short-handed. This he did on only one occasion, determining that he could not play. He testified that he was the worst player on the ice; he did not play again. He also testified that he is a member of the Saskatoon Old Pros Hockey Club, which meets on Wednesday and Sunday nights between 9 and 10:30 p.m., renting a rink during that period. He testified that members can skate during the period that the rink is rented, but the rules require no physical contact and no lifting of the puck. Although he testified that he occasionally skated, he mostly played cards with the other members and that the scope of their collaboration included charity work and fellowship as opposed to serious skating.

6. According to the claimant, membership in the PHPA is voluntary and is made up of players from all leagues within the NHL, including the East Coast Hockey League, in which he played at the time of injury.

7. The claimant testified that his first pay check from the dealership was in the amount of $1,500.00 Canadian and was received on November 28, 1998 to cover 2.5 to 3 weeks of employment. His rate of pay upon joining the dealership was $2,500.00 per month.

8. Although not directly addressed in Dr. McKerrell's records, the claimant's testimony is that cadaver grafts were used in his reconstruction.

9. The physician noted that as of April 8, 1999 there was sufficient range of motion so as no deficit impacted the impairment rating.

10. Medical records affidavit of Dr. McKerrell, p. 3.

11. On redirect, Mr. Landon testified that although the commissioner was interested in the procurement of a career ending injury benefit, the league gives the PHPA 100% responsibility to secure benefits and do not enter into the negotiations between the PHPA and benefit providers at all.

12. The claimant testified that he was paid $2,500.00 a month and that the first check he received on November 28, 1998 was for $1,500.00, essentially 3/5 of a month's salary.

13. This position is, in itself, interestingly inconsonant with their position that the claimant did not sustain an 100% permanent partial disability to his left injured extremity.

14. A distinction can be drawn between this case and the recent opinion in Meridian Professional Baseball Club and Liberty Mutual Ins. Co. v. Blair Jensen, _ So. 2d _ (Miss. App. 2000), No. 1999-WC02093-COA, October 10, 2000. In Jensen, the Court of Appeals appeared to determine that post-injury employment experience may be added to pre-injury employment experience when the claimant is young and has little work experience, and especially so when the post-injury employment experience gains the claimant a greater average weekly wage than his pre-injury wage. This was the case in Jensen, where the claimant was quite a young man with at most two years of professional sports experience earning less than minimum wage in the field. In the case now before the Commission, the claimant, Rohlicek, had played hockey since he was 14 years old, his unrebutted testimony being that he did very little else. Being precluded from playing professional hockey, he obtained a job with his father-in-law earning approximately the same wage that he had earned as a hockey player. His employment opportunity with his father-in-law could be characterized as a sympathy wage or a gratuity, and certainly his employment is not secure. He testified that he must pass a "dealer" school, as well as pass an interview with the board of directors of the automotive company in order to advance in the dealership. It need not be said that, the automotive company hierarchy aside, the claimant's ability to advance in the dealership depends, as well, upon his continued good relationship with his wife and her family.

15. See note 4, infra.

16. There has been much confusion and consternation between the parties as to what is actually due. In my computation, what has been paid and remains due is as follows: Temporary total disability benefits were owed from December 23, 1997 through May 1, 1999. The employer and carrier paid wages in lieu of compensation from the date of injury through the end of March, 1998. The employer and carrier owe no temporary total disability benefits for this period. The employer and carrier commenced paying temporary total disability benefits of $270.67, the maximum for a 1997 injury, April 1, 1998 and paid this rate weekly until November 10, 1999. Thus, the employer and carrier overpaid temporary total disability benefits. The undersigned believes that the overpayment commenced on November 13, 1998, when the claimant obtained gainful employment. Thus, the temporary total disability benefits paid from November 13, 1998 to November 10, 1999 (essentially 52 weeks) should be credited to the claimant's permanent partial disability indemnity. Therefore, the employer and carrier owes to the claimant an additional 123 weeks of permanent partial disability benefits.