The opinion
I respectfully disagree with the majority drawing an inference that but for plaintiff's injury, plaintiff would have played a full season with the Carolina Panthers earning $305,000.00 and further concluding that plaintiff is permanently partially disabled.
A closer review of plaintiff's football career does not lead to a reasonable inference that but for his injury he would have played a full season with the Carolina Panthers in 2005. Plaintiff played football in college but despite his numerous awards, was not highly scouted by the NFL. Instead, plaintiff tried out for the New York Jets in 2002 as a rookie free agent. Plaintiff was cut from the team after 3 games because another linebacker was needed. It is important to note that out of 53 players on the active roster, plaintiff was the one chosen to be cut from the team. Further, while plaintiff did play for the Buffalo Bills for two games at the end of the 2002 season, he was cut from the Bills pre-season in 2003, further proof that plaintiff's skills were not at a level needed to play professional football. In 2004, plaintiff played on an NFL Europe team for the spring. While the majority couches this as an opportunity for plaintiff to improve his ability and gain more experience, his skill level was still not high enough to warrant a contract with the Carolina Panthers for the 2004 season. Plaintiff also tried out for the Baltimore Ravens and New England Patriots for the 2004 season but did not make either team, a fact that I believe sheds more light on plaintiff's career and his chances of playing a full season for the NFL. Unable to play for the NFL in America, plaintiff once again played for the NFL Europe team in the spring of 2005. Thereafter, he signed a contract with the Panthers for the *Page 21
2005 season and during a pre-season game, suffered the thumb injury at issue. As plaintiff's injury occurred during the pre-season, there was no guarantee that plaintiff would not be cut from the Panthers team prior to the regular season. In his four years of attempting to play professional football, plaintiff never once played an entire season with the NFL. I do not believe that taking all this evidence into consideration, one can make a reasonable inference that plaintiff would have played the full 2005 season with the Carolina Panthers.
The majority also concludes that plaintiff has been permanently partially disabled since August 13, 2005. However, plaintiff was released at maximum medical improvement with no restrictions on November 23, 2005. No physician testified that plaintiff had any impairment with his function or ability to play football. Taking into consideration all the competent evidence and testimony, and not just the testimony of plaintiff as the majority has done, I do not believe that plaintiff has proven that his inability to play professional football is due to his injury by accident and I would not conclude that plaintiff is permanently partially disabled.
For these reasons, I respectfully dissent from the majority's decision.
S/___________________ DIANNE C. SELLERS COMMISSIONER
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