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Click here for the full text of this decision FACTS:Chad Hennings was a defensive lineman for the Dallas Cowboys Football Club Ltd., an NFL franchise, from 1992 through March of 2001. In October 2000, he suffered a neck injury during a game. Drs. Andrew Dossett and Dan Cooper, the team physicians, evaluated the injury and, following several MRI exams, concluded that Hennings had sustained an injury to his spinal cord at the C3-4 level. Hennings’ cervical disc at that level had degenerated and was pressing on his spinal cord. In November 2000, he underwent surgery for cervical fusion at the C3-4 level. Hennings had to wear a neck brace for six weeks and was unable to play for the remainder of the season. After Hennings’ injury, the Cowboys continued to pay his biweekly salary of $52,352.94. The Cowboys notified the NFL that Hennings was on the injured-reserve list as of Nov. 8, 2000, and estimated that it would take six months for him to regain “game condition.” In January 2001, Hennings began rehabilitation and working out in the team’s weight room. On March 7, 2001, the Cowboys terminated Hennings’ contract and issued a “Notice of Termination” form letter to the NFL, checking off that the termination reason was that Hennings’ “skill or performance [had] been unsatisfactory as compared to that of other players competing for positions on the Club’s roster.” After termination, but because he was severely injured and was terminated while injured or rehabilitating from an injury, Hennings received a $225,000 payment as provided by the “injury-protection clause” of the NFL’s Collective Bargaining Agreement. He also received $87,500 in severance pay that was unrelated to his injury and was based on his years in the league. Although the Cowboys had paid his medical expenses for the neck injury in the total amount of $38,921.98, all medical benefits under the contract ceased when the contract terminated. After consultation with his doctor and family, Hennings decided to retire in June 2001. He testified that he was not prohibited from playing in the NFL but chose not to return to play because of the injury risk. He continued working with a physical therapist for eight weeks after he was released from Dossett’s care upon his retirement. At the time of trial, Hennings had not seen a doctor in two years. Hennings filed an application for workers’ compensation benefits with Gulf Insurance Co., the Cowboys’ workers’ compensation insurance carrier. In a contested case hearing before an administrative judge, it was stipulated that Hennings sustained an injury in the course and scope of his employment and that the Cowboys continued to pay Hennings his contractual salary. The administrative judge determined that Hennings was not barred from pursuing workers’ compensation benefits, reasoning that his employment medical benefits were not equal to or greater than the benefits under the Texas Workers’ Compensation Act, because his medical benefits expired when the Cowboys terminated his contract. Thus, Hennings was entitled to reasonable medical benefits under the act “as and when needed.” Gulf appealed the administrative judge’s decision to a Texas Workers’ Compensation Commission appeals panel, which affirmed the administrative judge’s decision with the same rationale. Gulf filed suit in district court, seeking judicial review of the panel’s decision. Hennings testified that his primary motive in seeking workers’ compensation benefits was to obtain future medical benefits. A jury found that the benefits available under his employment contract were not equal to or greater than the benefits available under the act and that Hennings was disabled as the result of a compensable injury. The trial court entered judgment on the verdict, including an award of temporary weekly income benefits of $533 for 15 weeks and attorneys’ fees. Gulf appealed. The 10th Court of Appeals on July 11, 2007, issued an opinion reversing the trial court’s judgment and rendering a take-nothing judgment. Hennings filed a motion for rehearing on July 26, 2007. On Jan. 30, the 10th Court withdrew the July opinion and issued a new opinion affirming the trial court’s judgment. HOLDING:Affirmed. Texas workers’ compensation law, the court stated, treats professional athletes as a distinct class of employees. Texas Labor Code �406.095(a) provides: “A professional 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 under this subtitle may not receive benefits under this subtitle and the equivalent benefits under the contract or collective bargaining agreement. An athlete covered by such a contract or agreement who sustains an injury in the course and scope of the athlete’s employment shall elect to receive either the benefits available under this subtitle or the benefits under the contract or agreement.” If �406.095(a) applies, then under 28 Texas Administrative Code �112.401(a), the athlete must make an election “not later than the 15th day after the athlete sustains an injury in the course and scope of employment” to decide whether to receive workers’ comp or contractual benefits. “If the athlete fails to make an election,” the rule states, “the athlete will be presumed to have elected the option which provides the highest benefits.” Hennings argued that he was not required to elect which benefits to choose, because his medical benefits under his employment contract, which terminated, did not exceed the lifetime medical benefits available under the act. Gulf Insurance argued that the two types of benefits � medical and income � must be compared together, “not piecemeal.” It argued that the trial court erred, as a matter of law, in determining that Hennings was eligible to receive the benefits under his employment contract and the act, because his salary income “so greatly exceeded workers’ compensation income benefits.” The jury instruction, however, did not instruct the jury to lump together both sets of benefits to determine if Hennings’ employment benefits were equal to or greater than benefits under the act. By Gulf Insurance’s failure to object to the jury instruction, appellate review is limited to the law as stated in the instruction. Although there was no evidence quantifying the value of lifetime medical benefits available under the act, the court found that the jury could reasonably infer that having such benefits available 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. Thus, the court held that the jury’s answer to Question No. 1 of the charge as given was not contrary to the great weight and preponderance of the evidence. Gulf Insurance then argued that Hennings could not recover as a matter of law. Hennings, the court stated, asserted that �406.095 requires an election only when the professional athlete’s income and medical benefits under his employment contract are equal to or greater than the corresponding benefits under the act. The unambiguous language in �406.095 and Rule 112.401(a) supports Hennings’ construction, the court stated. The court then addressed Gulf’s “piecemeal” issue: What is the result if a professional athlete’s income benefits from his employment are equal to or greater than the income benefits under the act, but his medical benefits from his employment are not equal to or greater than the medical benefits under the act? The court found that the act requires that the income and the medical benefits from employment must each be equal to or greater than the corresponding income benefits and medical benefits available under the act. In other words, the court rejected Gulf Insurance’s construction of the statute and rules. The court therefore held that Hennings was not precluded from workers’ compensation benefits in addition to his employment benefits. OPINION:Vance, J.; Vance and Reyna, JJ. Gray, C.J., recused himself from the case.

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