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Larson's Spotlight on RICO, Ex Parte Communication, Penalties and Reemployment. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.
US: State Cannot Limit the Scope of a Federal RICO Cause of Action
Reversing a decision by the U.S. District Court for the Eastern District of Michigan that had dismissed plaintiffs' RICO case against a former employer, its 3rd-party administrator, and a doctor, the 6th Circuit Court of Appeals recently held that the Federal Constitution's Supremacy Clause preempted a state legislature from eliminating a RICO remedy simply by declaring its workers' compensation scheme to be exclusive of federal remedies. The predicate offense for a RICO action was mail or wire fraud, not the denial of worker's compensation. It was, therefore, irrelevant whether the state workers' compensation scheme provided a state administrative remedy for addressing the fraudulent denial of worker's compensation benefits. Nor did the existence of a state administrative scheme that did not provide for such a right of action trump the availability of remedies under RICO as it might in the context of a parallel federal administrative scheme. The fact that a scheme might violate state laws did not exclude it from the proscriptions of the federal mail or wire fraud statute. Simply put, a state cannot limit the scope of a federal RICO cause of action.
See Jackson v. Segwick Claims Mgmt. Servs., 2012 U.S. App. LEXIS 22557 (Nov. 2, 2012).
See generally Larson's Workers' Compensation Law, § 100.03.
GA: Employer May Engage in Informal Oral Communications With Injured Employee's Treating Physician
Reversing the state's Court of Appeals, the Supreme Court of Georgia recently held that an employer is permitted to seek relevant protected health information via informal, oral, communication with the employee's treating physician, that by its plain language, O.C.G.A. ß 34-9-207 authorizes a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the injured employee. The court observed, however, that the statute did not demand that the physician agree to be interviewed ex parte. For example, physicians could agree to be interviewed only on the condition that their own counsel, or the employee or her counsel, was present. They may also request that the interview be audio or video recorded, and the physician would be justified in sharing the substance of the interview with the employee and her counsel.
See Arby's Restaurant Group, Inc. v. Marie, 2012 Ga. LEXIS 865 (Nov. 5, 2012).
See generally Larson's Workers' Compensation Law, § 127.05.
IL: No Penalties and Fees Assessed Against Employer Where Denial of Claim Was Ultimately Unsuccessful, but Reasonable
An Illinois appellate court recently affirmed an order denying the claimant's petition for penalties and fees against the employer under 820 ILCS 305/19(k), 19(l) because the employer's refusal to pay, based on its assertion that the claimant was a contractor and not an employee, was not unreasonable, despite the fact that the claimant prevailed on the issue of employment status. The court observed that the employer presented evidence that the claimant exercised control over his routes and which gas stations he used, the claimant requested that he be considered an independent contractor, the claimant understood the in-dependent contractor agreement he signed, and the employer did not withhold taxes from the claimant's pay. The court did reverse the Commission on a separate issue related to the computation of average weekly wage.
See Labuz v. Illinois Workers' Comp. Comm'n, 2012 Ill. App. LEXIS 902 (Nov. 5, 2012).
See generally Larson's Workers' Compensation Law, § 135.01.
OH: In Spite of Age and Limited Education, Injured Worker Was Not Completely Foreclosed From Possible Employment
An Ohio appellate court recently agreed that a 64 year-old injured worker was not entitled to permanent total disability benefits in spite of limited education and vocational experience where the record demonstrated that the worker had the ability to perform work requiring short-term or on-the-job training. Emphasizing that there was no age at which reemployment was held to be a virtual impossibility, the court added that injured worker's limited education provided him with ability in reasoning, math, and language skills-not enough to allow him to perform more complex job duties needed in semi-skilled or skilled jobs-but sufficient for some types of work.
See Phillips v. Hoover Ball and Bearing Co., 2012 Ohio 5148 (Nov. 6, 2012).
See generally Larson's Workers' Compensation Law, § 83.04.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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