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

Ms. Wait filed a claim for workers’ compensation benefits against her employer. The case was dismissed by the Davidson County trial court on a motion for summary judgment by the defendant Travelers. The plaintiff appealed and the Supreme Court bypassed the Court of Appeals and accepted this case for argument due to the importance of the case and the potential broad-ranging effects of a decision.

The case was briefed and argued on behalf of the TNSIA by Attorney Terry Hill. Oral argument was heard on October 3rd. We will keep you posted on further developments in this lawsuit.

Re: Amicus Curiae Brief – Filed on behalf of TNSIA
Wait v. Travelers

I appeared for oral argument of our amicus position in this matter in front of the Supreme Court on October 3, 2007. Unfortunately there were two long criminal cases in front of me, so I wound up spending the whole morning in the courtroom.

The plaintiff’s attorney argued that the plaintiff was clearly covered by workers’ comp. The defendant argued that this case would not fall under the street risk doctrine. The Judges asked many questions of both of those attorneys.

When I started arguing, the Judges all hit me with questions. Justice Holder said that since the employer is receiving all of the benefit of this, they have relinquished the right to control the situation and should be liable for workers comp for this type of person. I pointed out to her that many of the people that work at home are single mothers who would be unable to juggle a schedule with their children if they were not afforded the opportunity to work at home. Justice Clark asked the plaintiff’s attorney if he felt as though employers should be liable for employees 24 hours a day. Justice Koch used the example from our brief and asked what would happen if a stove exploded and the employee was hurt. He pointed out that the employer would have no control over that situation.

Chief Justice Barker asked me if it was true that the plaintiff would be covered for this incident in the work place. My answer is that she probably would under the present state of the case law. He asked, “So why should she be covered now?”

We had an excellent brief and pointed out some significant pitfalls that could follow from an adverse ruling in this matter. It is very difficult to know how the Judges were leaning.

One possible ruling by the Court would be to strike down a summary judgment that was issued by the trial judge and to send this back for trial. I reminded the Judges that if they did that that they need to be careful of the language they use because it could open up a whole can of worms in terms of future cases involving home-based employees.

I anticipate that it could be 6 to 8 weeks or more before we get a decision from the Court. The court clerk came up to me afterword and said, “It’s good to get a workers’ comp case we can sink our teeth into.” I will let you know when I receive the decision of the court.

Very truly yours,
MANIER & HEROD
By: Terry L. Hill

TLH:af
cc: Raymond Leathers, on behalf of Tennessee Defense Lawyers Association
Bradley Jackson, Tennessee Chamber of Commerce & Industry