(10)     Land mines with Department of Labor – Due Process

The Department of Labor within the last 3 months has become increasingly pro active in performing independent ex parte investigations of plaintiffs.  Some of these investigations are also directed towards the defendants.  Most of the investigations I see are directed towards plaintiffs, because I represent plaintiffs.

There has been a tendency to not ask the attorney’s permission but to make calls directly to the client and even request and receive documentation from the client without going through the attorney or notifying the attorney that this is occurring.  Documents furnished by the client are not furnished to plaintiff’s attorney.

Another source of information which is not revealed to plaintiffs’ attorneys in any type of uniform way which I have found is information furnished by the other side.  Therefore, I find myself in a situation of receiving an opinion from the Department of Labor which contains facts and which references documents I have never heard of, seen, been furnished copies of, or had a chance to rebut.  There are also typically hearsay statements which I have never heard of before, had a chance to investigate, or rebut. This raises procedural due process questions under the State and Federal Constitutions.

Chancellor Carol McCoy in Randstad North America, L.P., vs. Tennessee Department of Labor and Workforce Development and Erica Doud, Davidson Chancery No. 09-716-II has declared certain temporary benefit rulings unconstitutional.  Portions of the opinion, now on appeal, are attached as Appendix “A”.   This was based upon procedural due process concerns.

There is another lawsuit pending in the Chancery Court of Davidson County at Nashville, TN which is a complaint for Declaratory Relief and Judgment filed by Andy Veazey, a defense attorney.  This is the case of Royale Construction, Inc. and Westfield Insurance Company vs. Karla Davis, Commissioner of The Tennessee Department of Labor and Workforce Development, et al, Davidson County Chancery Case No. 11-627-II.  (Portions of the Complaint are attached as Appendix “B” The 17 page complaint filed by Mr. Veazey claims that T.C.A. 50-6-238 is constitutionally invalid and violates due process.  In paragraph 58 on page 15 (attached) there is an allegation that the specialist to adjudicated claims based upon information such as is appropriate without tying it into a defined legal standard.  The complaint in paragraph 59 at page 15 (attached) also alleges that T.C.A. 50-6-238 disregards the laws of evidence.

Procedural due process includes safeguards such as (a) the right to confront, (b) the right to cross examine, and (c) the right to meaningfully be heard.  Where hearsay statements and other information which is defined by no known legal standard and many times information which is not even made known to both sides of the claim is being used as the basis of a decision, this makes it virtually impossible to safeguard your client’s constitutional rights under traditional notions of due process.

The net effect of constitutional challenges may be to declare the entire temporary benefit process, which the Department of Labor currently enforces, unconstitutional.  It is difficult to deal with the Department of Labor based upon unknown evidence. Ex parte communications, not revealed, lead to a secretive process which is impossible to rebut.

Without establishing hearing rooms, hearing officers, and in effect duplicating the court system (costing hundreds of millions of dollars) there is an argument that ex parte communications which form the foundations of the opinions which are being reached day in and day out, are by their very nature unconstitutional. Thus, such opinions create a violation of procedural due process which has the effect of depriving litigants of property rights.

There has to be a better way to do this.  Perhaps it is better to go back to the McCall v. National Health Corp., 100 SW 3d 209 Tenn. (2006) and Shelton v. Ads Environmental Services, 100 SW 3d 214 (2006) type hearings where one could file in Court for a start up of benefits and go through the usual court process if there is a denial of benefits by the employer or its insurer.  This would require the taking of proof and a full blown hearing in front of a Judge, but the rules of evidence, and civil procedure would apply.  I invite your thoughts. There will be a Supreme Court opinion on the Chancery case from Chancellor McCoy’s court in the near future.