Issue of injured players has become more prominent as former athletes report injuries casued by playing in pro sports.

Last July, Waco, Texas' 10th Court of Appeals rejected former Dallas Cowboys defensive lineman Chad Hennings' workers' compensation claim, holding in a case of first impression that professional athletes cannot receive workers' comp. But after seeking a rehearing, Hennings has won in overtime.

Reversing its previous stance, the 10th Court held on Jan. 30 in Gulf Insurance Co. v. Hennings that the 393rd District Court in Denton County did not err in finding that Hennings was eligible for benefits. A jury had found that Hennings was disabled as a result of a compensable injury and that the benefits under his contract and collective bargaining agreement were not equal to or greater than the benefits available under the Texas Workers' Compensation Act. This latter finding meant that Hennings did not have to choose between receiving his employment benefits and receiving workers' comp but could receive both.

"It gives you a little faith that a motion for rehearing can have an impact," says Hennings' lawyer, John Collins, a partner in Burleson, Pate & Gibson in Dallas. Hennings, who has three Super Bowl rings from his nine-year football career, retired after a serious spine injury in 2000. He recovered from cervical fusion surgery that year, but says he is worried about future complications.

Hennings, now a motivational speaker and consultant, is happy with the 10th Court's decision, which he says will benefit pro athletes across Texas in every sport. "We choose to play," Hennings says of himself and other pro athletes, "but at the same time you rely upon the system."

Pro football players are at risk, he says, because they may suffer from the results of traumatic brain injuries and other complications years after the end of their careers. Without workers' comp benefits, even ex-NFL players who made large salaries during their careers may be forced into bankruptcy due to large medical bills, Hennings says.

Barry Hasten, a partner in Hasten & Hansen in Arlington who represents Gulf Insurance Co., the Cowboys' insurance carrier, says he is surprised by the 10th Court's reversal.

"Their other opinion was very straightforward," he says, adding that he will seek Texas Supreme Court review of the 10th Court's opinion.

Hennings earned $1.4 million in salary and benefits in his final season with the Cowboys, including $225,000 under an "injury-protection clause," $38,921.98 from the Cowboys to cover his medical costs and $87,500 in severance pay, notes Hasten, who argues that highly paid athletes should not receive workers' comp.

"You have to look at the benefits available to athletes under their contract and collective bargaining agreement as a whole to determine whether those benefits are greater than the benefits available under workers' comp," Hasten says. To let pro athletes have both workers' comp and their player benefits is a windfall, Hasten says.

SPECIAL PROVISION
The Texas workers' comp law treats pro athletes as a special class. Under Texas Labor Code Section 406.095(a), a pro athlete "employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided" by workers' comp must make an election between the two types of benefits.

The 10th Court's original July 23, 2007, opinion deemed Hennings' overall contractual package of salary and medical benefits during his pro football career to be higher than benefits available under workers' comp, thus rendering Hennings ineligible for such benefits under Section 406.095(a). But in its Jan. 30 opinion, the court reversed itself and upheld a jury finding that, in Hennings' case, workers' comp was a better deal for him because of its longer duration.

"[T]he jury could reasonably infer that having such benefits under the Act was greater than the medical benefits he had received from his employment, while considering that he had no future medical benefits as a result of the Cowboys' termination of the employment contract," wrote Justice Bill Vance in the 2-0 opinion. The court found that sufficient evidence supported the jury finding. As a result, the court found that Hennings did not have to make an election under Section 406.095(a) and could receive workers' comp in addition to both of his now-terminated career benefits: his medical benefits and his salary.

The 10th Court also held that Section 406.095(a) does not mandate "lumping together" a pro athlete's medical benefits and salary under his or her contract "to determine whether the employment set of benefits is equal to or greater than benefits under the Texas Workers' Compensation Act."

The 10th Court's reversal came after Justices Vance and Felipe Reyna reconsidered their earlier majority opinion. While the opinion does not say why the justices changed course, Collins speculates that the court reversed itself because he emphasized in his rehearing brief that Gulf Insurance failed to object at trial to the jury charge. The charge allowed the jury to compare Hennings' contractual medical benefits -- not including his salary -- with the benefits offered by workers' comp in its analysis of whether Hennings had to make an election. "I think that's an argument they overlooked the first time around," Collins says.

Chief Justice Tom Gray had dissented from the July 23, 2007, opinion, writing that he would have upheld the trial court's judgment allowing Hennings to receive workers' comp. But on Jan. 16, Gray recused himself from the case after his two colleagues declined to allow the Jan. 30 opinion to reflect that Gray was "not participating" in the decision, according to a footnote in the majority opinion. The opinion does not state a reason for Gray's decision to recuse himself.

Brian Michael Cooper, a Houston attorney who is of counsel at Haynes and Boone and practices sports law, calls the 10th Court's decision "very important" and says that, if upheld by the Texas Supreme Court, the decision could affect all pro athletes in Texas.

"The thing I took away from this is the delineation of medical benefits" from players' salaries, a distinction that will make it easier for players to receive workers' comp, says Cooper, who is not involved in Hennings.

Cooper says the decision may not help many retired pro athletes, because it may be too late for them to seek workers' compensation: The statute of limitations may have run on their potential claims.

Collins, however, says that some retired players may still have claims if they never received proper notice of their right to workers' comp. "There are some players out there with live potential claims who don't even know they are entitled to benefits," he says.

The issue of injured players has become more prominent as more older ex-players are reporting injuries caused by playing in pro sports. On Jan. 31, retired NFL players gathered in Phoenix a few days before Superbowl XLII to call attention to health and financial problems of former players and bring pressure to bear on the NFL Players Association to increase benefits to former players.

Hennings, 47, says he maintains a low-impact aerobic workout regimen, because when he fails to exercise enough, he suffers from soreness and arthritic joints.

He worries, however, that he will have to undergo another cervical fusion surgery, because of "the likelihood of another one once you have one [surgery]."

Collins notes that Hennings filed his original workers' comp claim in 2001 and that the Cowboys and Gulf Insurance have been fighting it since then.