Brown v. Cassens Transport Co.

As previously discuss in our Blawg, the Federal District Court in Michigan was presented with a RICO claim based on the actions of the employer, insurer, and others involved in the handling of the employee’s workers’ compensation claim. The lower court initially dismissed the RICO claim. This decision was later reversed by the 6^th Circuit Court of Appeals. The Supreme Court later denied defendants’ writ of certiorari, which allowed the RICO claim to go forward in the lower court.

Upon rehearing before the lower court on Monday, September 27, 2010, the RICO case was once again dismissed. The court stated that the exclusive remedy provision in Michigan’s workers’ compensation system barred the employee’s RICO claim.

This goes along with U.S. District Court’s (Eastern District of Michigan) previous ruling in Jackson v. Sedgwick Claims Management Services, Inc. based on the same reasoning.

There has been no indication if the employee will once again appeal this decision in Brown v. Cassens Transport Co.

Ex parte City of Prattville:

On September 10, 2010, the Alabama Court of Civil Appeals considered the issue of whether an employer can limit an authorized treating physician’s ability to make referrals to other doctors. The trial court had ordered pendente lite (while the litigation is pending) medical treatment for the employee. The employer then petitioned the Court of Civil Appeals for a writ of mandamus ordering the trial court to vacate its order. In support of its petition, the employer stated that several doctors had been authorized for purposes of treating the employee. When the employee became dissatisfied with the treatment of his authorized doctors, he sought treatment from his own doctor. When his personal doctor made a surgical referral to Dr. Ryan, the employer refused. The employee went to see Dr. Ryan anyway and surgery was recommended. The employee then went to the authorized treating physician and requested a referral to Dr. Ryan. The authorized physician made the referral because he felt Dr. Ryan was the best available surgeon and the employer refused. Of the several reasons set forth for the refusal was the fact that it had specifically limited its authorized doctor from making referrals without permission from the employer. Therefore, it was the employer’s argument that no such referral could have taken place. The Court disagreed that the employer had such power and cited a prior case (Overnight Transportation Co. v. McDuffie) wherein it stated: "Once (a) physician has been selected by the employer, that physician has the implied authority to refer the employee to a specialist for reasonably necessary medical treatment, and the referred specialist thereby becomes an authorized physician." As a result, the employers petition was denied.

NOTE:

The employer waived its compensability and causation defenses which is why an order compelling medical treatment was allowed without a full scale trial on these issues.

MY TWO CENTS:

It is important to note that it was the authorized treating doctor’s opinion that Dr. Ryan was the best available surgeon for the job. Because of this affirmation, the Court refused to address the issue of what would happen if an authorized doctor simply rubber stamped a specific referral request from a patient/employee. It is the humble opinion of the lawyers at this firm that an authorized doctor needs to have a medically necessary reason for making a specific referral. Without such a reason, the decision should revert back to the employer as the Alabama Workers’ Compensation Act intended (see §25-5-77).

Williams v. Valley View Health and Rehabilitation, LLC

On September 10, 2010, the Court of Appeals released this opinion wherein it reversed the Trial Court’s grating of Summary Judgment in favor of the defendant, stating that the Court should have considered the new legal argument in post-judgment motion that asthma attack due to a one time exposure to chemicals was an accidental injury.

The plaintiff provided adequate notice for an accidental injury and the complaint said she suffered injury due to an incident. The defendant filed for Summary Judgment arguing it was not an occupational disease. The plaintiff responded and said it was an occupational disease and even filed her own Motion for Summary Judgment that the injury was an occupational disease. The Trial Court granted the defendant’s Motion for Summary Judgment, stating it was not an occupational disease. At that point, the plaintiff filed a post-judgment motion stating that she never filed an occupational disease claim and that the Trial Court should consider the claim that she sustained an accidental injury. Considering a new legal argument is within the Trial Court’s discretion and not to be reversed unless they exceeded that discretion. Based on this right, the Trial Court denied the post-judgment motion.

The majority focused on the fact that case law has always treated asthma attacks and similar conditions due to a one-time exposure as accidental injuries, in addition to the plaintiff providing notice as required for accidental injuries. Furthermore, it stated that there was no assertion that her asthma was due to long-term exposure, which is required for an occupational disease. Based on this, the Court of Appeals ruled that the Trial Court should have consider the new argument because her entire claim should not be foreclosed because the accidental injury claim was not considered.

My Two Cents:

Since the burden of proof for proving an accidental injury is lower that an occupational disease due to continuous exposure, it is important to identify early on whether or not the claimant is claiming accidental versus non-accidental exposure.

Dillard’s Inc. v. Kenneth Gallups:

On September 10, 2010, the Alabama Court of Civil Appeals released this opinion in which it considered whether a retaliatory discharge claim (that stems from a workers’ compensation claim) arises under the Alabama Workers’ Compensation Act.

The case involved an arbitration agreement signed by the employee. The language of the agreement required that any alleged retaliation for filing a protected claim for benefits (or exercising a protected right) was to be arbitrated; but claims for injuries covered by workers’ compensation were not to be arbitrated. The trial court in ruling for the employee found that a retaliation claim based on a workers’ compensation claim was "an injury covered by workers’ compensation" because it arose from the Act; and so was not subject to arbitration under the agreement.

On appeal, the Court of Appeals found that in accordance with previous case law, retaliatory discharge claims are treated as traditional tort claims and so this claim would not arise under the Alabama Workers’ Compensation Act. Since the retaliatory discharge claim did not arise under the Act; it was covered by the provision in the agreement that mandated arbitration for the filing of retaliation claims. The Court reversed the opinion of the lower court and remanded with instructions to compel arbitration.