Judgment -The court of Federal Judge Paul Borman has dismissed the case of Brown v. Cassens Transport Company, stating that the exclusive remedy for the claim falls within the exclusive administrative scheme set forth in the Michigan Workers’ Disability Compensation Act. The dismissal forecloses the employees claim under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The National Council of Self-Insurers, along with the Michiganand Illinois Self-Insurers Associations, filed an Amicus brief with the U.S. Supreme Court in support of Cassens.

History – In October 2008, the U.S. Court of Appeals (Sixth Circuit) ruled that six employees of Cassens Transport could proceed with their RICO suit, alleging that Cassens, its TPA and a doctor, engaged in an illegal scheme to deny the employees benefits for workplace injuries. Cassens subsequently petitioned the U.S. Supreme Court to review the decision of the Court of Appeals.

The National Council of Self-Insurers, Michiganand Illinois Self-Insurers Associations filed their amicus brief, stating to the Supreme Court that if the Appellate decision holds, employees, who say they are injured at work, will be able to prosecute RICO actions in state and federal courts as well as actions in workers’ compensation courts.

In September 2009, the Supreme Court denied Cassens’ Certiori Petition., allowing the case to resume.

The case was assigned to the court of Federal Judge Paul Borman, who had the responsibility to determine if certain medical evidence had relevance in his Court in the denial of workers’ compensation benefits.

On September 27, 2010, Judge Borman ruled that that the Plaintiffs’ exclusive remedy for their claim, that they were fraudulently denied benefits under the Michigan Workers’ Disability Compensation Act (WDCA), lies within the exclusive administrative scheme set forth in the WDCA. The judge further concluded that even assuming such a claim could be raised outside of the WDCA’s exclusive administration, the plaintiffs failed to allege an “injury to business or property” as that term is defined under RICO. The claims of the plaintiffs thus failed for this separate and independent reason.

Related Case – In Jacksonv Sedgwick Claims Management Services et al., a similar case has been instituted. It alleges that a self-insured employer, its third party administrator (TPA) and a physician conspired to deprive injured employees of their workers’ compensation benefits in violation of the RICO Act.

The National Council of Self-Insurers has filed an amicus brief in support of the employer, TPA and doctor.

Larry Holt
Executive Director

If the employee and/or their representative refuses to sign a waiver of confidentiality, then the employer or insurance carrier, or their agents and/or representatives, cannot communicate with the treating physician either in person or telephonically unless the employee and/or their representative is present.  A treating physician is statutorily required to produce certain reports and records upon written request of the employer or insurance carrier even without the injured employee’s consent, but note that the physician should not engage in ex parte communications without that consent.  Any written communication complying with T.C.A. § 50-6-204(a)(1) and (2) should be copied to the employee and\or the employee’s representative along with any response received from the health care provider.

Source: http://www.tennessee.gov/labor-wfd/wc_overstreet_memo.pdf

The court held that a corporation (insurance company or corporate employer) cannot have a non-attorney sign a settlement agreement at the Department of Labor. The court held that signing such a document by a non-attorney constitutes the unauthorized practice of law. The court held that the settlement approval was void since the person signing on behalf of the employer/insurance company was not an attorney.

T.C.A. §23-3-103 makes it a Class A misdemeanor for a person, firm, association or corporation to engage in the unauthorized practice of law.

In Pirtle, the Gibson County Chancery Court ruled that the plaintiff employee had suffered both an acute injury to his back, as well as a gradual carpal tunnel injury to both of his wrists. The proof at trial established that the plaintiff’s back injury occurred suddenly in March, 2002, while the plaintiff’s date of gradual injury for his carpal tunnel claim fell in May of 2004.

Since the plaintiff had returned to work with his pre-injury employer, the trial court awarded the plaintiff 2.5 times the 17% impairment rating assigned by the plaintiff’s IME physician. This 17% rating, however, comprised impairment for both the plaintiff’s back and arm claims.

On appeal, the Panel found that the trial court could not calculate an award based on one combined impairment rating for two injuries with two different dates of injury. The Panel remanded the case to trial for a computation of two separate awards for two separate injury dates.

This case should discourage the practice of many IME physicians to combine multiple impairment ratings for distinct injuries to create a single over-inflated rating. Each injury must now be evaluated by the trial court individually in cases involving multipliers.