The Sixth Circuit Court of Appeals has allowed a lawsuit based on the Racketeer Influenced and Corrupt Organizations Act (RICO) based on an alleged fraudulent wrongful deprivation of an employee’s entitlement to benefits under Michigan’s Worker’s Disability Compensation Act.  Brown v. Cassens Transport Co., 6thCir., No. 10-2334, 4/6/12) Six current or former employees of the trucking company, Cassens Transport Co., alleged that the defendants (the employer and a doctor) colluded to deny them workers’ compensation benefits by making fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of RICO. Triple damages are available under RICO. The district court held that the plaintiffs did not allege an injury to property, as required by RICO; noting that the Michiganstatue provided W.C. as the employees’ exclusive remedy for on the job injuries.   The appellate court reversed, finding that federal law recognizes that the recipient of a statutory…       Read More

America’s Cyber Czar Speaks ZDNet (blog) By: Andrew Nusca We will never be 100 percent secure, but we can manage that risk down a bit. Third: While technology is a big piece of it, we also have to recognize there’s a governance piece and a business piece that has to be applied. Give us the ability to be much … DC, NYC Hacked; Intruders Promise More Attacks Washington Examiner By: Alan Blinder The District and New York City governments were the targets Thursday of a major cyber-attack, which crippled their websites for hours as the self-avowed culprits vowed to initiate more attacks and DC authorities sought a federal investigation.  EU Agrees to Share Airline Passenger Data With US  Reuters By: Claire Davenport “At the same time, it fully meets the security needs of the United States of America and the EU. Under the new agreement, data of passengers travelling to…       Read More

Today, the Georgia Supreme Court granted a writ of certiorari for the case of Arby’s Restaurant Group, Inc., et. al. v. Laura S. McCrae, Court of Appeals Case No. A11A1021.  Since the Court of Appeals issued their ruling last December, claimant attorneys have tried to argue that the McCrae case limits the ability of employers and insurers to have ex parte communications with treating and examining physicians.  Therefore, the fact that the Georgia Supreme Court did grant the writ of certiorari and could overturn the Court of Appeals ruling is potentially excellent news for all employers and insurers. Oral arguments have been assigned to the July 2012 calendar.  Consequently, we would anticipate a ruling from the Georgia Supreme Court in late summer or early fall.  Given the impact of this case, we will continue to keep you updated as soon as events develop. 

Recently, a Claimant attorney and two orthopedic surgeons have published “IME Prep,” an instructional DVD series created by Atlanta Claimant’s attorney Rob Hendrix. IME Prep is designed to educate claimants and their counsel about what goes on at an IME. This development has caused great concern within the Workers’ Compensation community, and with good reason.   In fact, one of the stated goals on IME Prep’s website is to “prepare the client for the legal issues associated with the examination.” It is clear the intent behind the DVDs is to manipulate IMEs.   According to IME Prep’s website, Mr. Hendrix wanted to prepare his clients for the “tricks” that IME physicians use to give them ammunition to opine that the patient is engaging in symptom magnification, malingering, secondary gain, etc. As a result, he created IME Prep. This program appears to not only guide claimants as to how to behave…       Read More

“Privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”   Pretty harsh-but also pretty accurate. This is the language from the judge in a ruling in the 2010 New York case, Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y.Sup. September 21, 2010) regarding a Plaintiff’s expectation of online privacy. While this is a personal injury case from New York, it nonetheless provides an extremely beneficial precedent which could be pointed to by employers in Georgia in the context of workers’ compensation cases.  In essence, this case addressed whether information on the Plaintiff’s Facebook and Myspace pages could be withheld during discovery, irrespective of her privacy settings. The judge determined that the Plaintiff had put her physical condition at issue by filing the case, and, therefore, she could not then hide relevant information that she had previously posted on her social media profiles….       Read More

In the case of a neo-natal intensive care nurse, regular attendance really is an essential function of the job. On April 11, 2012, the Ninth Circuit Court of Appeals rejected an Americans With Disabilities Act lawsuit brought by a nurse with fibromyalgia who requested as a “reasonable accommodation” to opt out of the hospital’s attendance policy that sanctioned five unplanned absences of unlimited duration following a number of excused absences. Samper v. Providence St.Vincent. Samper obtained intermittent medical leaves that did not count as unexcused absences under the attendance policy. Although none of these leaves counted towards her unplanned attendance limit, despite ongoing accommodation, Samper was issued a corrective action notice for seven unplanned absences over the previous twelve-month period, some of several days in length. The Court found that it is a “rather common-sense idea . . . that if one is not able to be at work, one…       Read More

With So Much at Stake, Companies Turn to Hired HackersLos Angeles TimesBy: W.J. Hennigan Aerospace industry firms such as Boeing are looking beyond traditional recruiting outlets for savvy techies as they try to fend off more coordinated and complex threats from hackers.Weak Passwords Still The Downfall of Enterprise Security ITworld.comBy: Jaikumar Vijayan, Computerworld A recent data breach that exposed the Social Security numbers of more than 255000 people in Utah has once again highlighted the longstanding but often underestimated risks posed to organizations by weak and default passwords Apps For Kids Collecting Personal Data, FTC Says San Francisco Chronicle By: Eleanor Tang Su, California WatchAs part of its review, the FTC fined a California company on accusations of violating the Children’s Online Privacy Protection Act, which outlaws the collection of data from children younger than 13 without parental approval. BPAS Hacker James Jeffery Who Broke Into The Website of Britain’s Biggest…       Read More

A recent USAToday article “More American Workers Sue Employers for Overtime Pay” notes a reported 32% increase in such lawsuits from 2008 levels. The most common overtime claims focus on: Working off the clock through breaks and before or after regular hours; Misclassified jobs exempted from overtime incorrectly; Smartphones and other technology involving emails and texts from work than lengthen the working day in excess of forty hours per week. The Supreme Court will soon rule on a misclassification claim involving pharmaceutical “sales representatives” who were treated as exempt from overtime as outside sales jobs, even though the representative never took customer orders but merely educated doctors and handed out samples. With increasing news coverage of these lawsuits, more and more employees will be asking questions of their employers about overtime pay practices and exemptions. Employers should consider including in annual supervisor training regarding:          (a) how to respond to such…       Read More

Free Wi-Fi Users Warned Malaysia Star By: Hariati Azizan However, before you log on to your bank account using your smartphone or any other mobile device, stop – a cyber criminal may be lurking nearby, waiting to tap into your transaction and steal important data. Cybersecurity Malaysia has advised mobile … The FBI Tells Us How They’re Handling America’s Newest Threat – Cyber Terrorism Business Insider By: Jana Kasperkevic In fact, it seems that Gordon Snow, Assistant Director of the Cyber Division, is expecting an increase in cyber crimes as the number of connected devices surpasses the number of people in the world. The internet and social media have made terrorism … Boston’s St. Elizabeth’s Has Data-Security Breach Worcester Telegram By: Robert Weisman, BOSTON GLOBE BOSTON – St. Elizabeth’s Medical Center said Friday it is notifying 6831 patients that their billing information, including credit card numbers and security codes, may…       Read More

Each year since 2004, Verizon has released a Data Breach Investigative Report.  The 2012 Report (based on 2011 data) is now available.  The Report, which contains a compilation and analysis of reported breaches, should be of interest to business owners, insurers, auditors, security experts, and others involved in this field.  This Special Edition of Data Protection Weekly will provide you with several of the most important highlights of the Verizon Report.  Please contact me if you would like a complete copy of the Report. The Report was based on 855 breached incidents, which resulted in 174 million records being compromised.  Data for the Report was collected by Verizon, with contributions by the United States Secret Service, the Dutch National High Tech Crime Unit, the Australian Federal Police, the Irish Reporting & Information Security Service, and the Police Central e-Crime Unit of the London Metropolitan Police.  Data breaches included in the…       Read More