Rayford v. Lumbermens Mut. Cas. Co., Civ. No. 1:92cv306.

• Decision Date: 28 February 1994
• Docket Number: Civ. No. 1:92cv306.
• Citation: 851 F. Supp. 1243
• Parties: Curtis RAYFORD, Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY and Kemper National Insurance Companies, Defendants.
• Court: U.S. District Court — Northern District of Indiana

851 F. Supp. 1243

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

Civ. No. 1:92cv306.

United States District Court, N.D. Indiana, Fort Wayne Division.

February 28, 1994.

Jack E. Morris, Benson Pantello Morris and James, Dennis H. Geisleman, Myers and Geisleman, Fort Wayne, IN, for plaintiff.

Preston T. Breunig, Martha L. Westbrook, Buck, Berry, Landau and Breunig, P.A., Indianapolis, IN, for Lumbermens Mut. Cas. Co.

John D. Walda, Kevin K. Fitzharris, Barrett and McNagny, Fort Wayne, IN, Preston T. Breunig, Martha L. Westbrook, Buck, Berry, Landau and Breunig, P.A., Indianapolis, IN, for Kemper Nat. Ins. Companies.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on a motion to reconsider filed by plaintiff Curtis Rayford ("Rayford") on January 12, 1994. Defendants responded to the motion on January 24, 1994. For the following reasons, Rayford's motion will be denied.

Discussion

On December 30, 1993, this court entered an order granting summary judgment in favor of the defendants, Lumbermens Mutual Casualty Company ("Lumbermens") and Kemper National Insurance Companies ("Kemper") 840 F.Supp. 606. The background facts and legal posture of this case, as noted in this court's earlier order, are as follows.

In his complaint, Rayford alleges that on January 25, 1992, he sustained a severe injury as a result of an industrial accident in the course of his employment at Poly-Hi, Inc, which was insured for worker's compensation by Lumbermens and Kemper. Specifically, Rayford suffered a compound and comminuted fracture of his right femur which required an open reduction and, further, surgery was later performed on Rayford's right knee. Rayford and his employer filed an "Agreement to Compensation of Employee and Employer" with the Worker's Compensation Board on February 26, 1992. This Agreement provided that Rayford would receive compensation at the rate of $328.00 per week. This Agreement was approved by the Worker's Compensation Board on February 27, 1992.

Rayford claims that as a result of his severe leg injury he began suffering from depression and psychological difficulties. The defendants initially voluntarily approved five counseling sessions for Rayford without requiring him to file a formal compensation claim with the Worker's Compensation Board. At the expiration of these five sessions on July 24, 1992, the defendants terminated counseling services even though Rayford had been diagnosed as a suicide risk. In September of 1992 Rayford attempted suicide. During Rayford's hospitalization following his attempted suicide, the defendants 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 the defendants' temporary termination of his worker's compensation benefits.

In his complaint, Rayford claims that the defendants' handling of his claim and their refusal to provide recommended psychological care resulted in his attempted suicide and other injuries. Rayford further claims that the defendants' conduct was tortious and their refusal to pay benefits constituted gross negligence in that the defendants failed to provide psychological services and failed to undertake an adequate investigation into the need for those services and the consequences which would flow from the denial of those services. Rayford contends that the defendants' actions were taken in reckless disregard for his life and mental health.

Rayford is seeking "compensatory damages for the psychological and physical injuries sustained, and for damage to his credit and additional stress caused by the wrongful termination of temporary total disability benefits and the refusal to provide psychological care, together with other on-going damages." Complaint at ¶ 16. Rayford is also seeking punitive damages against the defendants.

The defendants filed a motion for summary judgment asserting that the Indiana Worker's Compensation Act, Ind.Code § 22-3-1-1 et seq., vests the Worker's Compensation Board with exclusive primary jurisdiction to determine Rayford's rights to compensation and the obligations of the defendants to provide for the care and treatment of the plaintiff¹. The defendants asserted that Rayford had failed to pursue and/or exhaust his state administrative remedies and, therefore, the defendants were entitled to judgment as a matter of law.

The defendants asserted that, since Rayford's injury (depression and attempted suicide) arose out of his employment, Rayford was required to present his claim to the Worker's Compensation Board. Rayford, however, argued to this court that his case falls within the exception to the exclusive remedy provision set forth in Stump v. Commercial Union, 601 N.E.2d 327 (Ind.1992). In Stump, in response to a certified question from this court, the Supreme Court of Indiana held, inter alia, that "there was no adequate justification to absolve worker's compensation insurance carriers and other such third parties of their responsibilities in the event of additional injuries or harm proximately caused by their actionable conduct." Id. at 331 (Emphasis added). The Court concluded that:

Indiana law will permit a cause of action by an injured employee against a worker's compensation insurance carrier for injuries proximately caused by the insurance carrier's tortious conduct such as gross negligence, intentional infliction of emotional distress, and constructive fraud. The exclusive remedy provisions of the Indiana Worker's Compensation Act, Ind.Code § 22-3-2-6, do not preclude these actions. (Emphasis added).

In its order of December 30, 1993, this court explained that the key to understanding Stump was to understand that the worker's compensation carrier in that case was being accused of breaching a duty which breach proximately caused injuries to Mr. Stump separate from the injuries he had suffered as a result of his industrial accident. This court then further explained that before Rayford could base a federal claim on the Stump exception, he was required to show that the defendants had a duty to provide services to him and that it was the defendants' breach of this duty which proximately caused his injury; that is, his injury did not arise out of and in the course of his employment.

This court then noted that Rayford had not shown any duty or promise by the defendants to provide him with counseling services. Nor had Rayford presented any evidence that would tend to show that his psychological injuries were proximately caused by anything other than his industrial accident. Consequently, as the undisputed evidence overwhelmingly showed that Rayford's psychological disorders arose from and were proximately caused by his industrial accident and were not proximately caused by a misrepresentation or breach of duty by the defendants, this court granted summary judgment in favor of the defendants.

In support of his motion to reconsider, Rayford claims that the defendants owed him a duty as a matter of law. Rayford asserts that the defendants' duty to provide him with counseling services is established by the Indiana Worker's Compensation Act, Ind. Code § 22-3-3-4(a), which provides that an employee who suffers a work related injury is entitled to reasonable and necessary medical care and treatment prior to an adjudication of permanent impairment. Specifically, Ind.Code § 22-3-3-4, which is titled "Medical treatment pending adjudication of impairment", provides in relevant part that:

(a) After an injury and prior to an adjudication of permanent impairment, the employer shall furnish or cause to be furnished, free of charge to the employee, an attending physician for the treatment of his injuries, and in addition thereto such surgical, hospital and nursing services and supplies as the attending physician or the worker's compensation board may deem necessary. * * *

(b) During the period of temporary total disability resulting from the injury, the employer shall furnish the physician services, and supplies, and the worker's compensation board may, on proper application of either party, require that treatment by the physician and services and supplies be furnished by or on behalf of the employer as the worker's compensation board may deem reasonably necessary.

(c) After an employee's injury has been adjudicated by agreement or award on the basis of permanent partial impairment and within the statutory period for review in such case as provided in section 27 of this chapter, the employer may continue to furnish a physician or surgeon and other medical services and supplies, and the worker's compensation board may within the statutory period for review as provided in section 27 of this chapter, on a proper application of either party, require that treatment by that physician and other

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