Rayford v. Lumbermens Mut. Cas. Co., 94-2047

• Decision Date: 05 January 1995
• Docket Number: No. 94-2047,94-2047
• Citation: 44 F.3d 546
• Parties: Curtis RAYFORD, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY and Kemper National Insurance Companies, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 546

44 F.3d 546

Curtis RAYFORD, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY and Kemper National Insurance Companies, Defendants-Appellees.

No. 94-2047.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 4, 1994.

Decided Jan. 5, 1995.

Ronald E. James, Jack E. Morris (argued), Benson, Pantello, Morris & James, Dennis H. Geisleman, Myers & Geisleman, Fort Wayne, IN, for plaintiff-appellant.

Preston T. Breunig (argued), Martha L. Westbrook, Indianapolis, IN, for defendants-appellees.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

In this diversity case, Curtis Rayford seeks compensation from his employer's insurers for damages resulting from the insurers' failure to provide counseling for psychological problems Rayford developed as a result of an industrial accident in which his leg was severely damaged. The district court granted the insurers' motion for summary judgment, 840 F.Supp. 606. Because Indiana requires an injured employee in Rayford's position to pursue his claims against his employer exclusively before the state's worker's compensation board, Rayford has failed to state a claim upon which relief may be granted. We, therefore, affirm the district court's order.

On January 25, 1992, Rayford suffered a severe injury to his right leg as a result of an industrial accident that occurred during the course of Rayford's employment by Poly-Hi, Inc., which was insured for worker's compensation by Lumbermens Mutual Casualty Company and Kemper National Insurance Companies. As a result of his accident, Rayford suffered a compound and comminuted fracture of his right femur. This injury required an open reduction of his leg and arthroscopic knee surgery. Within a month, Rayford and Poly-Hi filed an Agreement to Compensation of Employee and Employer with the worker's compensation board that provided Rayford complete coverage for the treatment of his injuries as well as compensation in the amount of $328 per week. The board approved the agreement on February 27, 1992.

The agreement did not provide for any psychological counseling. Rayford, however, voluntarily began attending such counseling on the advice of his lawyer and requested that the insurers pay for it. Although the insurers received nothing from his attending physician (the doctor treating his physical injuries) diagnosing Rayford with psychological problems or recommending psychological counseling, the insurers voluntarily agreed to pay for five sessions of psychological counseling. At that time, the counselor believed that five sessions would suffice.

After the fifth session, Rayford's counselor determined that Rayford's psychological problems persisted and that he demonstrated suicidal tendencies. When Rayford demanded that the insurers pay for further counseling, they refused. At this stage, all that Rayford offered in support of his request was a letter from his counselor stating that Rayford needed further counseling. He neither consulted with his attending physician nor filed an Application for Adjustment of Claim with the worker's compensation board.

In September 1992, Rayford attempted suicide. During his subsequent hospitalization, the insurers temporarily terminated Rayford's worker's compensation disability benefits and refused to pay for in-patient psychological services. Rayford claims that he suffered a more severe depression as a result of this temporary termination of benefits.

In his complaint, Rayford claims that the way in which the insurers treated his claim and their refusal to provide the requested psychological care directly resulted in his attempted suicide and other injuries. He further claims that the insurers' failure to provide the psychological services or even undertake an adequate investigation into his need for those services was tortious and constituted gross negligence. Rayford seeks compensatory and punitive damages for the psychological and physical injuries he sustained as a result of the insurers' refusal to provide additional psychological counseling.

The insurers claim that Rayford has failed to state a claim upon which relief may be granted. They base their argument on the exclusive jurisdiction of the Indiana worker's compensation board over a worker's compensation claims. That is, they read the Indiana Worker's Compensation Act to require Rayford to seek any relief exclusively from the worker's compensation board. We agree.

In Indiana, a personal injury claim falls within the ambit of the Act if it concerns a personal injury by accident arising out of employment and within the course of employment. Stump v. Commercial Union, 601 N.E.2d 327 (Ind.1992) (citing Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 973 (Ind.1986)). Numerous pieces of evidence, including depositions by physicians and Rayford himself, demonstrate that Rayford's psychological problems stem from his industrial accident and are therefore obviously covered by the Act.

The Act vests the worker's compensation board with exclusive primary jurisdiction to determine an...