December 2009:
In a highly emotional case of Brown vs Cassens Transport, the United States Supreme court refused to rehear a landmark decision of the 6th Circuit Court of the United States in allowing a worker to sue their employer and the work comp doctors, managers and other related to thwarting of his claim. The suit which was filed under the R.I.C.O. act, a law which primarily surrounds the act of racketeering had not been allowed to proceed until the Brown case. This case paves the way for employees who believe misconduct took place in their case an additional remedy outside of state comp court. This is a huge victory for employees and a sheer message to employers and insurance managers. The law even allows the defense lawyers to be named in the case.

Ruling Published February 24, 2010

Case History:
"The original Brown v. Cassens decision in October, 2008 involving a Michigan workers’ compensation claim stirred lively commentary in business, risk management and employee benefits publications. Attorney blogs and Web sites projected either foreboding or celebration depending on the author’s convictions and practice orientation. LexisNexis and other legal resources added entries. Professional firms such as Sedgwick CMS updated their clients. AHollywood actor even featured Brown v. Cassens in a demonstration clip on his promotional MySpace site. Clearly the word is out.

The Supreme Court’s December, 2009 denial was widely reported in established risk management industry media. Despite the denial’s critical importance in enabling Brown v. Cassens to proceed, however, it seems to have generated little fresh commentary in the blogosphere. More significant indicators that additional suits should be expected are:

• Brown v. Cassens is not alone. Although still rare, other workers’ compensation-related lawsuits are being allowed to proceed on the basis of RICO arguments.
• The target is tempting. RICO provides for treble (triple) damages, increasing the potential payoff for a successful plaintiff; and a class action suit would multiply the exposure.
• The legal profession is tooling up. The American Bar Association’s ( ABA ) Labor and Employment Law Section has scheduled a session at its March 4-6, 2010 meeting entitled “Erosion of the Exclusive Remedy Doctrine.” The panel includes one of the Brown v. Cassens defense lawyers. The program announcement promises, “If you practice workers’ compensation law, employment law, represent injured employees, defend insurance companies, self-insured employers, governmental agencies, adjust claims, or practice medicine you cannot afford to miss this program.”
• source: lexisnexis.com

This case is important in the Kocenda case because Kocenda has asserted all along that his case was continuously thwarted by members of the city administration and risk management along with officials outside the city but hired by the city to administer the city's work comp claims. In Kocenda's case attorneys prepared for a possible successful Brown ruling by asking both city doctors about their income relating to independent medical exams and answers ranged, but one indicated that a significant portion of his income is derived from the IME's of work comp agencies and he did not testify for plaintiffs. The other was asked other questions which called his medical findings into question and painted a picture that he too may have been compromised by who was paying for his opinion.

Kocenda's attorneys have made no secret of their interest in utilizing this case to Troy's outside counsel. It may be where Ms. Linderman is headed in the future. We will have to wait and see. If it is where she is headed Troy has nobody to blame.