Kentucky Employment Law Blog

Baptist Healthcare's discovery stonewalling struck down by Court of Appeals

The stonewalling of Baptist Healthcare Systems (BHS) to a former employee’s discovery requests in a wrongful termination and defamation suit got nowhere with the Court of Appeals, which reversed both a discovery order and a summary judgment granted by Jefferson Circuit Court. Becker v. Baptist Healthcare Systems. The Court’s analysis and discussion of the attorney-client privilege’s applicability is the most important point of the case. The attorney-client privilege was asserted by BHS as to what it described in its own brief as “25 email communications made between Baptist employees but at the direction of litigation counsel.”

The Court reiterated the three options that a party actually asserting a bona-fide attorney-client privilege objection to discovery may follow that the Kentucky Supreme Court laid out in Collins v. Braden, 384 S.W.3d 154 (Ky. 2012). Those three options are: (1) in camera review by the presiding trial court judge; (2) producing a detailed privilege log with descriptions of the documents sufficient to establish the existence of the privilege (i.e., more than their titles); or, (3) making an offer of proof that sufficiently describes the documents in question. Most circuit judges prefer the privilege log option, which is what BHS decided to go with.

A privilege log, however, must provide enough detail about the communication to establish the existence of the privilege, and the Court found that BHS provided to be inadequate. Furthermore, the court observed that “communications between a client’s employees” ordinarily will not be privileged.

The Court then advised that any claim of privilege must be rooted in KRE 503, which requires the employees in question to fit the definition of a type of “person” to which that rule refers. There are two types of such persons: a “client” and a “lawyer.” Merely denominating the employees as having communicated “at the direction of litigation counsel” did not make any of them a “representative of the lawyer” under KRA 503(a)(4). The Court did allow that an employee might qualify as a “representative of the client” but this required that they be vested with the specific authority recited in KRE 503(a)(2), and further advised that all of the email communicants must be a “representative of the client” for their communications to be privileged. Further, the Court added, that the communications must be confidential as defined by KRE 503(a)(5).

The court reversed the summary judgment granted by the Jefferson Circuit Court and also the discovery order upholding BHS’s discovery objections. The case will go back for further proceedings and odds are that BHS will try to settle the case before it has to disclose the email communications, which may well enhance the overall value of the case.  

Robert L. Abell
www.RobertAbellLaw.com

Kentucky Workers Compensation Law: Supreme Court Strikes Down Limits on Benefits for Older, Injured Workers in Kentucky

In a recent decision, Parker v. Webster County Coal, the Kentucky Supreme Court struck down limits in Kentucky workers compensation law on the benefits that older, injured workers could receive. Previously the law had limited the benefits that older workers could receive to two years or when they became eligible to receive "old-age Social Security benefits," whichever came later. Now older workers can receive the same benefits as all other injured workers in Kentucky. 

For further reading: Older Injured Workers Get Major Win from Kentucky Supreme Court.

Robert L. Abell
www.RobertAbellLaw.com

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Kentucky Supreme Court Affirms ALJ's Finding of Psychological Impairment

Under Kentucky Workers Compensation Law "the ALJ has the sole discretion to determine the quality character, and substance of the evidence ... and may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness for the same party's total proof." What this means in practice is that an ALJ, like any other factfinder, has wide discretion to make factual findings based on the proof presented. This point is well illustrated in the recent decision by the Kentucky Supreme Court in Martin County Coal Company v. Goble.

William Goble hurt his back in August 2009 and treatment since has not yielded much improvement. In addition to his back pain, Goble complained of depression and anxiety arising from his back injury, although he had not received any treatment for these psychological complaints. An ALJ concluded that Goble had a 12% permanent impairment rating: 7% related to his low back injury and 5% related to his psychological injury.

The proof presented regarding Goble's psychological injury was somewhat mixed.A psychologist, Eric Johnson, noted Goble's lack of treatment, stated that he "cannot estimate permanent impairment at this time" but also stated that Goble suffered from a current impairment of 5%, which could improve with further improvements to his back. The defense offered a report from Dr. Douglas Ruth, which the ALJ regarded as "flimsy." 

In affirming the 5% impairment attributed to Goble's psychological injury, the Supreme Court's explanation illustrates the discretion and latitude that an ALJ may properly exercise as a factfinder:

It is true that Dr. Johnson stated he could not estimate what Goble's permanent impairment was at the time of his evaluation and that any impairment should improve with physical and psychological treatment. However, he also stated that any improvement in Goble's psychological condition was dependent, in part, on a reduction of pain and an increase in functional activities. Goble testified his pain had not improved significantly; his functional abilities have not increased significantly; and he had not gotten any psychological/psychiatric treatment. Therefore, the ALJ could reasonably infer that Goble's psychological condition had stabilized and that Goble had reached maximum medical improvement.

The Court's unanimous opinion was authored by Justice Michelle Keller.

Robert L. Abell
www.RobertAbellLaw.com

 

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Sedgwick Claims Management Can Be Liable Under RICO For Fraudulent Deprivation of Workers Compensation Benefits, Sixth Circuit Rules

Sedgwick Claims Management, one of the country’s largest workers compensation claims adjustment companies, can be liable under RICO for fraudulent deprivation of workers compensation benefits the Sixth Circuit has ruled in Jackson v. Sedgwick Claims Management Services, No 10-1453 (November 2, 2012).  This case is the latest in a series of cases originating in Michigan in which the Sixth Circuit has ruled that injured workers may sue under RICO employers, claims adjusters and doctors that fraudulently deprive them of workers compensation benefits.  Earlier posts have discussed these decisions: Damages Recoverable under RICO for Fraudulent Deprivation of Workers Compensation Benefits; A Claim for Workers Compensation Benefits Is Property Under RICO, Sixth Circuit Rules; and Injured Workers May Sue Under Racketeering Law Based On Scheme To Deny Them Workers Compensation Benefits.

Clifton Jackson was employed by Coca-Cola when he injured his back while at work.  His treating doctor concluded that he was disabled. Sedgwick then requested that Jackson be examined by a Dr. Terry Weingarten, who Sedgwick paid and who also concluded that Jackson was disabled. Sedgwick wasn’t satisfied so it had Jackson examined again by Dr. Weingarten, who again concluded that Jackson was disabled.  After these three examinations and conclusions that Jackson was disabled, Sedgwick again had Jackson examined this time by Dr. Paul Drouillard, who reported that Jackson was not disabled. Dr. Drouillard mailed a report alleged to contain three statements by Jackson regarding his pain that Jackson claims never to have made and conclusions regarding Jackson’s injury “wholly unsupported by the medical evidence.”  And so Sedgwick terminated Jackson’s workers compensation benefits.

Here are the racketeering acts identified by the Sixth Circuit:

• Dr. Drouillard’s evaluations were not objective medical reports and were allegedly fraudulently slanted to beat Jackson and others out of workers compensation benefits
  
  
• Personnel in Coca-Cola’s workers compensation department worked with Sedgwick falsely to administer the claims by Coca-Cola employees
   
• Coca-Cola routinely used and relied on the false medical reports of doctors such as Dr. Drouillard fraudulently to terminate benefits and regularly communicated with Sedgwick concerning the desires of both to obtain a false medical report so that workers compensation benefits could be cut off

• Coca-Cola and others then misrepresented to injured workers through use of the mails that the doctors were independent
  
  

These cases do not strike a new theme. Read this report in the New York Times: "That's the game, baby" Explains Workers' Compensation Insurance Company Expert Witness.

Robert L. Abell
www.RobertAbellLaw.com

 

Damages Recoverable under RICO for Fraudulent Deprivation of Workers Compensation Benefits

The Sixth Circuit's recent decision in Brown v. Cassens Transport, No. 10-2334 (April 6, 2012), recognized both that a claim for workers compensation benefits as well as the expectation of a fair process for a workers compensation claim were "property" under RICO. This is the second time that the Sixth Circuit has reversed a district court's dismissal of the case. It has been the subject of to prior post on the Kentucky Employment Law Blog: A Claim for Workers Compensation Benefits Is Property Under RICO, Sixth Circuit Rules and Injured Workers May Sue Under Racketeering Law Based On Scheme To Deny Them Workers Compensation Benefits.

The court also explained the determination of damages that could be recovered under RICO for the fraudulent deprivation of workers compensation benefits:

... a person is injured and "property" under RICO when the value of the statutory benefits that she receives is artificially decreased by reason of the fraud complained of. "The compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern." Calculating such differences is rarely an exact science, but the plaintiffs should be able to put on proof of how much compensation they would have received under the [Michigan workers compensation law's] rigid schedule of compensation but for the defendants' allegedly fraudulent medical testimony. The difference between that amount and the amount they received in settlement is neither speculative nor too difficult to surmise.

Robert L. Abell
www.RobertAbellLaw.com

A Claim for Workers Compensation Benefits Is Property Under RICO, Sixth Circuit Rules

A claim for workers compensation benefits is property under RICO, and injury to that property is properly sued for under the statute. This ruling by the Sixth Circuit in Brown v. Cassens Transport, No 10-2334 (April 6, 2012), is the latest development in a very interesting suit claiming that an employer and a doctor it recruited systematically diminished the value of injured workers claims for workers compensation by means of fraud. The Sixth Circuit's prior ruling, Brown v. Cassens Transport, No 05-2089 (Oct. 23, 2008), was previously discussed on the Kentucky Employment Law Blog: Injured Workers May Sue Under Racketeering Law Based On Scheme To Deny Them Workers Compensation Benefits.

The plaintiffs claim they were injured on the job for Cassens. Cassens self-insures its workers compensation and contracts with Crawford & Company for claims administration. The plaintiffs claim that Cassens and Crawford solicited "fraudulent medical reports" from a third defendant, Dr. Saul Margules and used them as a fraudulent means to diminish the value of the plaintiffs' claims for workers compensation benefits. Interestingly, all of the plaintiffs but one had settled their workers compensation claims with Cassens; the other was subject of an undisclosed adjudication in the Michigan workers compensation scheme.

Reversing a dismissal by the district court for the second time the Sixth Circuit held "that the plaintiffs have alleged an injury to property because they allege the devaluation of either their expectancy of or claim for workers' compensation benefits." First, the court ruled that "applicants for workers' compensation benefits have a property interest in those benefits at the time that their employer becomes aware of the injury." This holding rests on language in the Michigan workers compensation law stating that "employees injured in the course of employment 'shall be paid compensation,' which is calculated according to a rigid schedule." The court rejected the argument that a property interest in the benefits did not accrue until the injured worker had proved their entitlement noting that "Michigan state law does not require injured employees to make such an initial showing before they receive benefits."

Second, the court further held that even if the expectation of workers compensation benefits is not a property interest, "the plaintiffs in this case may proceed by alleging injury to property in that their claim to benefits under the workers compensation scheme was damaged by the defendants' actions." Citing a prior Michigan decision, Williams v. Hofley Mfg. Co., 424 N.W.2d 278 (Mich. 1988), the court observed "the plaintiffs' claim is not necessarily about particular payments themselves, but also about the defendants' deception ... that deprived the plaintiffs of the ability to assert their claim for benefits under the statute in a fair forum."

Finally, the Sixth Circuit rejected the argument that an unfavorable adjudication or settlement by plaintiffs precluded their loss of a property interest, explaining as follows:

... losing or settling a case due to fraudulent medical reports does not extinguish the plaintiffs' property interest in bringing a claim free of fraud. ... plaintiffs should be allowed to proceed on their RICO claim and put on evidence that they would have received a better result in the underlying state agency proceedings had the defendants not submitted the fraudulent medical reports. The fact that the plaintiffs lost or settled in tainted proceedings is not evidence that the plaintiffs would have lost or settled if the proceedings had been fair.

Robert L. Abell
www.RobertAbellLaw.com

Kentucky Workers Compensation ALJ May Apportion Impairment Rating

An ALJ may apportion the impairment rating for an injury in a Kentucky workers compensation case. The Kentucky Supreme Court clarified the scope of the ALJ's discretion recently in Pella Corp. v Bernstein, No 2010-SC-448-WC (April 21, 2011).

The injured worker, Joyce Bernstein suffered various injuries including shoulder injuries. She was treated for the shoulder injuries by an orthopedic surgeon, Dr. Jackson, who assigned a 10% permanent impairment rating to her shoulder injuries further specifying on the Form 107 a greater degree of impairment to the left shoulder than to the right. However, Dr. Jackson did not apportion the 10% impairment among the shoulders. Subsequently, it developed, according to testimony by Bernstein, that her right shoulder had healed.

The Supreme Court, in affirming a ruling by the Court of Appeals, ruled that, and ALJ could properly attribute more than half of the 10% impairment rating to the shoulders to the left shoulder. Toward this ruling the Court recited examples and instances of the discretion an ALJ has to select the appropriate impairment rating:

• an ALJ may consult the American Medical Association's Guides to the Evaluation of Permanent Impairment when considering the medical evidence and deciding which expert to rely upon
   
• an ALJ may rely on at least some of the conversion tables found in the Guides, such as the tables used combine whole-person impairment ratings or to convert a binaural hearing impairment to a whole-person impairment
   
• an ALJ may also translate a Class 1-5 impairment assigned to a medical condition under the Fourth or Fifth Edition of the Guides into a percentage impairment by using the last edition that equated Class 1-5 impairment with percentages

Robert L. Abell
www.RobertAbellLaw.com

Kentucky Workers Compensation Retaliation: Punitive Damages and the Jural Rights Doctrine

Terminating an employee in retaliation for filing a Kentucky workers compensation claim was ruled to constitute the tort of wrongful discharge by the Kentucky Supreme Court in Firestone Textile v. Meadows, 666 S.W.2d 730 (Ky 1984).  Subsequently, the General Assembly enacted KRS 342.197 and codified a cause of action for workers compensation retaliation.

Employers in defense to a workers compensation retaliation claim under KRS 342.197 often assert that punitive damages are not available as a remedy. That position was undermined by the recent Court of Appeals decision in Taylor v King, 2009-CA-1599 (Ky App, October 1, 2010).

The most pertinent issue in Taylor v King was whether the Kentucky Dram Shop Act, KRS 413.241, could constitutionally prohibit recovery of punitive damages against a seller or provider of alcohol. Because the Kentucky Dram Shop Act is similar to KRS 342.197, because it was enacted after significant common-law development of claims, defenses and remedies, the court's analysis is applicable to the similar issue presented with regard to claims for workers compensation retaliation under KRS 342.197.

Kentucky's jural rights doctrine "flows from a reading of sections 14, 54, and 241" of the Kentucky Constitution and "states that the General Assembly has no authority to abolish or restrict a common-law right of recovery for personal injury or wrongful death." The doctrine, the court added, applies not only to causes of action recognized at the time Kentucky's constitution was adopted in 1891 "but also to actions in remedies which have developed through the common-law since the adoption of the Constitution. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 815-18 (Ky 1991)." The court then concluded that the Kentucky Dram Shop Act had restricted the opportunity to recover punitive damages in violation of the jural rights doctrine.

A similar rationale applies to KRS 342.197. First, wrongful discharge is a tort and essentially a cause of action for personal injury. Second, the tort of wrongful discharge, like dram shop liability, is an action developed in the common-law since adoption of Kentucky's Constitution in 1891. Accordingly, a construction of KRS 342.197 that punitive damages are not a remedy would similarly violate the jural rights doctrine.

Robert L. Abell
www.RobertAbellLaw.com

Double Kentucky Workers Compensation Benefits Recoverable Where Employment Ends Due to Previous Work-Related Injuries

Kentucky workers compensation benefits may be doubled where employment ceases due to the disk enabling effects of previous work-related injuries as well as the injury being compensated, according to a ruling by the Kentucky Supreme Court in Hogston v. Bell South Communications, No. 2010-SC-299-WC (November 18, 2010).

Chester Hogston work as a lineman for BellSouth. He suffered a work injury to his right knee in the 1980s and to his left knee in 1997. In January 2006, he again sustained a work injury to his right knee.

Dr. Shockey surgically repaired right knee in March 2006 and assigned a 4% permanent impairment rating. After later unrelated surgeries, Dr. Shockey assigned a 10% impairment rating and imposed restrictions related to Hogston's left, which also later required surgery. Hogston's restrictions were because of his left knee and they eventually required him to leave his job with BellSouth.

Hogston's workers compensation claim arose from the January 2006 injury to his right knee in the 4% impairment rating assigned by Dr. Shockey. He claims that he is Kentucky workers compensation benefits should be doubled pursuant to KRS 342.730(1)(c)(2). The court noted that Dr. Shockey's testimony linked the reason for termination of Hogston's employment to a work-related disability. The Court ruled that "KRS 342.730(1)(c)(2) includes a cessation of employment due to the disk enabling effects of previous work-related injuries as well as the injury being compensated." Therefore, the Court directed that in order be entered doubling the Kentucky workers compensation benefits recoverable by Hogston. 

Robert L. Abell
www.RobertAbellLaw.com

 

Where Employer Induced Employee to Accept Employment by Subsidizing Employee's Commute, the Employee's Death While Commuting Was Compensable under Kentucky Workers Compensation Law

Typically, a worker's injury while commuting to and from work is not compensable under Kentucky workers compensation law because of the "coming and going" rule. There are some exceptions to the "coming and going" rule, one being where the employer induces the employee to accept or continue employment by substantially subsidizing the employee's commute.  The Kentucky Supreme Court recently applied this exception in Fortney v. Airtran Airways, No. 2009-SC-429-WC (June 17, 2010).

Clarence Fortney was a pilot employed by Airtran Airways. He lived in Lexington and commuted to and from Atlanta, where Airtran was headquartered. Tragically, Fortney was killed in the Comair flight 5191 crash in Lexington on August 27, 2006, while commuting to work. Airtran had an arrangement with Comair, which allowed Fortney to fly free or at the very reduced fare to and from Lexington and Atlanta. The evidence indicated that this commuting subsidy induced Fortney to accept employment with the Airtran.

The Kentucky Supreme Court, in an opinion authored by Justice Lisabeth Abramson, employed an analytical mixture of economic analysis and the benefit principle in concluding that Fortney's commute to Atlanta was in the course of his employment and his death compensable under Kentucky workers compensation law:

The fact that an employer uses transportation or transportation expense as an inducement to accept or continue employment is material to supporting compensability, particularly when the journey is sizable and when the employer pays all or substantially all of the expense. We note that such an inducement benefits the worker who accepts it and places a financial burden on the employer but also that the inducement benefits the employer when its purpose is accomplished. An employer is unlikely to provide such an inducement unless it views the resulting benefit as outweighing the burden.

Robert L. Abell
www.RobertAbellLaw.com