Pro-Football Inc.&Gulf Insurance Co. v Tito J.Paul

__________________
* Senior Judges Willis and Bray participated in the hearing
and decision of this case prior to the effective date of their
retirement on September 1, 2002 and thereafter by designation as
senior judges pursuant to Code § 17.1-401.
COURT OF APPEALS OF VIRGINIA
Present: 	Judge Annunziata, Senior Judges Willis and Bray*
Argued at Alexandria, Virginia
PRO-FOOTBALL INC. AND
GULF INSURANCE COMPANY
OPINION BY
v. 	Record No. 3427-01-4 	JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 3, 2002
TITO J. PAUL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Samuel L. Hendrix (Baker & Hostetler, on
briefs), for appellants.
Andrew S. Kasmer (Gerald Herz; Chasen &
Boscolo, on brief), for appellee.
Tito J. Paul filed for workers' compensation benefits with
the commission for an injury to his left knee incurred during
the course of his employment as a football player for
Pro-Football, Inc. (Washington Redskins or Redskins). 	A deputy
commissioner found that Paul's injury was compensable in
Virginia and entered an award of benefits pursuant to Code
§ 65.2-101. 	The Washington Redskins and Gulf Insurance Company
(insurer) appealed, and the full commission affirmed. 	The
Redskins contend (1) the commission lacked jurisdiction to enter
the award and (2) the evidence does not support the commission's

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determination that the injury is compensable. 	For the reasons
that follow, we affirm.
I. 	Background
On May 7, 1998, Paul signed a two-year written contract
with the Denver Broncos. 	It is undisputed that Paul signed this
contract in Colorado and that it committed Paul to work for the
Broncos during the 1998 and 1999 football seasons. 	The contract
provided, inter alia:
17. 	ASSIGNMENT. 	Unless this contract
specifically provides otherwise, [the
Broncos] may assign this contract and
Player's services under this contract to any
successor to [the Broncos] franchise or to
any other Club in the League. 	Player will
report to the assignee Club promptly upon
being informed of the assignment of his
contract and will faithfully perform his
services under this contract. 	The assignee
club will pay Player's necessary traveling
expenses in reporting to it and will
faithfully perform this contract with
Player.
On or about August 24, 1999, prior to the 1999 season, the
Broncos traded Paul to the Redskins pursuant to a written
agreement (Trade Agreement) between the Broncos and the
Redskins. 	The Trade Agreement provided, in pertinent part:
A. 	The Denver Broncos hereby assigns to the
Washington Redskins all of its rights,
title, and interest in and to the following
players . . . : Tito Paul
* 	* 	* 	* 	* 	* 	*
The above transaction is subject to the
following conditions:

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Tito Paul must report to the Redskins [in
Ashburn, Virginia,] pass the Club's physical
[examination, and] be on Washington's 53-man
roster at anytime during the 1999 season.
After Paul reported to Redskins Park in Ashburn, Virginia
and passed his physical examination, he and Vinnie Cerrato, the
Director of Player Personnel, shook hands and Cerrato said,
"congratulations, you are now a Redskin.
On August 28, 1999, Paul played in a game against the
Pittsburgh Steelers in Pittsburgh, Pennsylvania. 	Paul testified
that during the game, he "was shedding a blocker, and [he] was
going to make a tackle, and [he] made an abrupt turn, and [his]
knee, [he] just felt a burning sensation, a tweaking in it."
Paul continued to play in the remainder of the Pittsburgh game.
On September 1, Paul reported the injury to the team's
assistant trainer, Kevin Bastin. 	The Redskins and its insurer
filed a First Report of Accident with the Workers' Compensation
Commission.
Bastin first treated Paul. 	He sent Paul to Dr. Gordon
Avery. 	Dr. Avery's report indicates that Paul "injured his left
knee in a game last week." 	Dr. Avery treated Paul four more
times in September, three times in October and once in November.
On September 5, 1999, Dr. Joseph A. Backer performed an MRI
examination on Paul's knee. 	The study showed "findings
suggestive of a strain of the lateral collateral ligament,
abnormality of the anterior horn of the lateral meniscus,

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questionable bone bruise in the medial femoral condyle, and a
joint effusion," but "no complete tear" of the lateral
collateral ligament. 	Dr. Avery also noted that the MRI
indicated "some abnormality of the lateral meniscus but no
definite tear."
In September and October, Paul continued to play for the
Redskins. 	The team trainers' notes for this period indicate
that Paul's condition subsided and then worsened. 	The entry for
September 9 states that Paul "was able to practice all week with
no problems. 	The swelling has decreased and he has full [range
of motion] pain free." 	The September 12 entry states that he
"was made [inactive] for the game, but not due to knee. 	He is
treating post practice but is full go." 	The entries for
September 29 and October 6 note swelling. 	The entry for October
18 indicated that Paul had his knee "drained by Dr. Avery before
the game."
On October 26, Dr. Avery wrote that he suspected Paul
suffered a "lateral meniscus tear." 	On November 16, 1999,
Dr. Avery performed surgery on Paul's left knee. 	The operative
report indicates that Paul had "a radial tear of the lateral
meniscus" as well as "degenerative changes of the meniscus both
anterior and posterior to the radial tear."

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It is undisputed that Paul was unable to return to his
pre-injury employment after the surgery. 	He continued to
participate in non-physical team activities through the
remainder of the 1999 season and was paid his full salary,
$402,732.15. 	He has had three subsequent surgeries on his knee
and has not yet been released by his treating doctor. 	Before
the 2000 season, he was terminated by the Washington Redskins
and received no further compensation.
On or about May 9, 2000, Paul filed a claim against the
Redskins for workers' compensation benefits relating to his left
knee injury. 	A deputy commissioner found that the commission
had jurisdiction because the Trade Agreement constituted Paul's
contract of employment with the Redskins, and was completed in
Virginia. 	The commissioner also found that Paul had sustained a
compensable injury by accident and awarded temporary total
disability benefits from March 1, 2000.
The Redskins appealed to the full commission. 	The
commission determined that the Trade Agreement was not Paul's
contract of employment, but found that it had jurisdiction under
the "loaned employee" doctrine. 	Specifically, it held that Paul
had a "loaned employee relationship" with the Redskins that was
consummated in Virginia when he passed a physical examination
required by the Trade Agreement. 	The commission also affirmed
the deputy commissioner's finding that Paul sustained a

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compensable injury while in the course of his employment with
the Redskins.
II. 	Analysis
A. 	Jurisdiction
The commission concluded that it had jurisdiction based on
its finding that Paul was a "loaned employee" who consummated
his employment relationship with the Redskins in Virginia.
Specifically the commission found: 	1) Paul was a loaned
employee of the Redskins; 2) the loaned employee relationship
was effectuated when Paul passed the Redskins physical in
Virginia; and 3) the effectuation of the relationship in
Virginia satisfied the Commonwealth's jurisdictional
requirements. 	The commission's finding will be affirmed unless
it is unsupported by credible evidence. 	See Virginia Electric
and Power v. Kremposky, 227 Va. 265, 269, 315 S.E.2d 231, 233
(1984); see also Code § 65.2-706(A) ("[A]n award of the
commission . . . shall be conclusive and binding as to all
questions of fact."). 	For the reasons that follow, we find that
the commission correctly concluded that it had jurisdiction over
Paul's claim, although we disagree with the commission's
reasoning.
Jurisdiction over workers' compensation claims in Virginia
is governed by statute. 	Code § 65.2-508 requires both that:
"(1) [t]he contract of employment was made in this Commonwealth;
and (2) [t]he employer's place of business is in this

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Commonwealth . . . ." 	See also 3 Arthur Larson & Lex K. Larson,
Larson's Workers' Compensation Law § 143.01(2) (2002) (noting
that Virginia's statute regarding coverage of out of state
injuries is "the narrowest statute of this kind still
surviving"). 	The parties do not dispute that the Redskins'
place of business is in Virginia. 	Therefore, we must determine
whether Paul's "contract of employment was made in this
Commonwealth."
Before considering whether Paul's contract of employment
was made in Virginia, we must determine what constitutes that
contract. 	Because the facts surrounding Paul's employment
arrangement are not in dispute, "the principal issues raised by
this appeal relate not to the factual findings of the
commission, but to its application of the law to those findings.
Accordingly, these issues are mixed questions of law and fact[,
which we review de novo]." 	Roanoke Belt, Inc. v. Mroczkowski,
20 Va. App. 60, 67-68, 455 S.E.2d 267, 270-71 (1995) (citations
omitted); cf. Price v. Taylor, 251 Va. 82, 86, 466 S.E.2d 87, 89
(1996) (holding that the validity of a contract is a matter of
law).
The deputy commissioner held that the Trade Agreement
constituted Paul's contract of employment with the Redskins.
The full commission rejected that holding. 	On appeal, the
Redskins contend that the original contract between the Broncos
and Paul, by assignment, became the employment agreement between

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the Redskins and Paul. 	Paul argues that he had an oral contract
with the Redskins that became effective when the Director of
Player Personnel for the Redskins shook his hand and said,
"congratulations, you are now a Redskin." 	We disagree with each
of these contentions and find that Paul's "contract of
employment" with the Redskins consisted of the original contract
between Paul and the Broncos, the Trade Agreement between the
Broncos and the Redskins and, finally, the fulfillment of the
conditions precedent to his employment with the assignee team,
viz., that Paul report to Redskins Park, pass the team's
physical, and play on the Redskins team. 	See Commercial
Contractors, Inc. v. U.S. Fidelity & Guar., 524 F.2d 944, 950
(5th Cir. 1975) (holding that several writings connected by
internal references to each other constituted a single contract
where they involved the same subject matter and proved to be
part of an entire transaction, even if they were executed on
different dates and were not among all of the same parties);
Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 263 (2d Cir.
1965) (same); Hampton Rds. Shipping Ass'n v. International
Longshoremen's Ass'n, 597 F. Supp. 709, 716 (E.D. Va. 1984),
modified on other grounds, 746 F.2d 1015 (4th Cir. 1984) (same);
see also Rowland Lumber Co. v. Ross, 100 Va. 275, 277, 40 S.E.
922, 923 (1902) (finding a series of letters constituted a
written contract).

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The original contract provided that Paul would work for the
Broncos and could be assigned to another football club. 	The
Trade Agreement provided that Paul would be assigned to the
Redskins. 	Both specified that he would pass their physical and
report for work. 	Absent the fulfillment of the conditions
precedent to his employment with the assignee team, Paul would
not be an employee of the Redskins. 	Smith v. McGregor, 237 Va.
66, 376 S.E.2d 60 (1989) (holding that an agreement is
inoperable until all conditions precedent are performed).
Hence, the written contracts, together with the execution of the
conditions precedent, constitute Paul's "contract of
employment," with the Redskins, as the term is used in the
workers' compensation statute. 	Code § 65.2-508(A).
"The place where the last act necessary to give validity to
the contract occurs is the place where the contract was made."
United States Steel Corp., Gary Works v. Industrial Comm'n, 510
N.E.2d 452, 455 (Ill. 1987); accord Stout v. Home Life Ins. Co.,
651 F. Supp. 28, 32 (D. Md. 1986), aff'd, 818 F.2d 29 (4th Cir.
1987); Chesapeake Supply & Equip. Co. v. J.I. Case Co., 700 F.
Supp. 1415, 1417 (E.D. Va. 1988); Smith v. McBride & Dehmer
Construction, 530 P.2d 1222, 1225 (Kansas 1975). 	In Smith, for
example, the court held that the employment contract was made in
Oklahoma because the last act done necessary to consummate the
contract of employment was for the employee to report at the job
site in Oklahoma. 	530 P.2d at 1225.

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In this case, the final acts necessary to form the contract
of employment between Paul and the Redskins occurred in
Virginia. See McGregor, 237 Va. at 75, 376 S.E.2d at 65. 	As a
condition precedent to Paul's employment with the Redskins, the
Trade Agreement required Paul to report to Redskins Park,
complete the Club's physical and be on Washington's roster
during the 1999 season. 	All of these acts took place in
Virginia. 	Because the last acts necessary to form the contract
of employment between Paul and the Redskins occurred in
Virginia, the agreement was "made in this Commonwealth" and the
commission had jurisdiction over Paul's out of state injury.
Code § 65.2-508; see Stout, 651 F. Supp. at 32; Chesapeake
Supply & Equip. Co., 700 F. Supp. at 1417; United States Steel
Corp., Gary Works, 510 N.E.2d at 455; Smith, 530 P.2d at 1225.
B. 	Sufficiency of the Evidence
The Redskins claim the commission erred in holding that
Paul sustained a compensable injury because no credible evidence
supported its determination. 	We disagree.
"On appeal, we view the evidence in the light most
favorable to [Paul], the party prevailing before the
commission." 	Great Eastern Resort Corp. v. Gordon, 31 Va. App.
608, 610, 525 S.E.2d 55, 56 (2000). 	"A claimant must prove his
case by a preponderance of the evidence." 	Bergmann v. L & W
Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981); see
Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437

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S.E.2d 727, 729 (1993) (en banc). 	Furthermore, "[d]ecisions of
the commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court." 	Allen &
Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 335, 340
(1998). 	Evidence to the contrary in the record "is of no
consequence if there is credible evidence to support the
commission's findings." 	Russell Loungewear v. Gray, 2 Va. App.
90, 95, 341 S.E.2d 824, 826 (1986). 	The consideration and
weight to be given to the evidence, including medical evidence,
are within the sound discretion of the commission. 	See
Waynesboro Police v. Coffey, 35 Va. App. 264, 268, 544 S.E.2d
860, 861 (2001); Hungerford Mechanical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Code § 65.2-101 defines a compensable injury as an "injury
by accident arising out of and in the course of the employment."
"[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 (3)
that it resulted in an obvious mechanical or structural change
in the human body." 	Southern Express v. Green, 257 Va. 181,
185, 509 S.E.2d 836, 838-39 (1999). 	Applying these
requirements, the commission found that Paul sustained a
compensable injury.

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Paul presented sufficient evidence to the commission to
support its finding. 	First, the accident reports prepared by
the Washington Redskins establish that Paul was injured on
August 28, 1999, while at work for the Redskins in a game in
Pittsburgh. 	Second, Dr. Avery's report confirmed that the
incident, which occurred during the game on August 28 in
Pittsburgh, caused Paul's knee injury. 	Furthermore, Paul
testified that during the game, he "was shedding a blocker, and
[he] was going to make a tackle, and [he] made an abrupt turn,
and [his] knee, [he] just felt a burning sensation, a tweaking
in it." 	Although the Washington Redskins point to contrary
evidence in the record, we are bound to discard such evidence on
appeal. 	Russell Loungewear, 2 Va. App. at 95, 341 S.E.2d at
826.
Finding no error, we affirm the decision of the commission.
Affirmed.