McCormick v. Caterpillar Tractor Co.

• Decision Date: 26 June 1981
• Docket Number: No. 53353,53353
• Citation: 423 N.E.2d 876,53 Ill.Dec. 207,23 A.L.R.4th 1134,85 Ill.2d 352
• Parties: , 53 Ill.Dec. 207, 23 A.L.R.4th 1134 Max D. McCORMICK, Appellee, v. CATERPILLAR TRACTOR CO. et al. (Caterpillar Tractor Co., Appellants).
• Court: Illinois Supreme Court

Page 876

423 N.E.2d 876

85 Ill.2d 352, 53 Ill.Dec. 207, 23

A.L.R.4th 1134

Max D. McCORMICK, Appellee, v. CATERPILLAR TRACTOR CO. et al. (Caterpillar Tractor Co., Appellants).

No. 53353.

Supreme Court of Illinois.

June 26, 1981.

Westervelt, Johnson, Nicoll & Keller, Peoria (Wayne L. Hanold and Jeffrey W. Jackson, Peoria, of counsel), for appellants.

Jerome Mirza and Associates, Ltd., Bloomington (Jerome Mirza, Bloomington, of counsel), for appellee.

Douglas F. Stevenson of Rooks, Pitts, Fullagar & Poust, Chicago, for amicus curiae Illinois Mfrs' Ass'n.

WARD, Justice.

On January 16, 1976, Max McCormick injured his left foot during the course of his employment at the Caterpillar Tractor Company in Peoria. He was first treated at the plant by Dr. M. E. Godby, who was one of a number of licensed physicians employed by Caterpillar Tractor on a full-time basis. After concluding from an X-ray examination that McCormick's left foot was not fractured, Dr. Godby attributed the swelling and tenderness in the foot to a strain. He told the claimant to return to work and also instructed him to wrap the foot and apply ice to it. On February 9, McCormick returned to the main medical-treatment room of the company, where the foot was examined by Dr. L. B. Patalinghug, another physician employed by the respondent. The left foot was still swollen in the region of the second and third metatarsal bones, and Dr. Patalinghug prescribed whirlpool treatments and told McCormick to return to work.

One week later, he again returned to the treatment room, complaining of aggravated swelling in his foot, and was seen by Dr. M. T. Neu, another company physician. Dr. Neu was of the opinion that the slowness in healing was due to continued stress from walking and similar activities. He, nevertheless, directed the claimant to wrap his foot with an elastic bandage and return to duty.

The pain and swelling did not subside, and on February 23, McCormick returned to the main treatment room, where he was treated by Dr. Patalinghug. Upon detecting an increase in the skin temperature at the swollen portion of the left foot, she referred McCormick to Dr. Flaherty. His examination disclosed a stress fracture of the second and third metatarsal bones of the left foot. McCormick filed a claim under the Workmen's Compensation Act (Ill.Rev.Stat.1977, ch. 48, par. 138.1 et seq.), and the Industrial Commission made an award in favor of McCormick for 25% permanent loss of use of his left foot.

Subsequent to the entry of this award, McCormick filed two lawsuits in the circuit court of McLean County, which were later consolidated. The suits named as defendants Caterpillar Tractor and Drs. Neu, Godby, and Patalinghug and alleged negligence in the diagnosis and treatment of McCormick's injury. The court allowed a motion to dismiss as to Caterpillar Tractor and Dr. Neu and granted a motion for summary judgment as to Drs. Godby and Patalinghug. The appellate court, with one judge dissenting (82 Ill.App.3d 77, 37 Ill.Dec. 522, 402 N.E.2d 412), held that the exclusive-remedy provision of the Workmen's Compensation Act (Ill.Rev.Stat.1977, ch. 48, par. 138.5(a)) did not bar a common law suit in tort against Caterpillar Tractor. Citing this court's decision in Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313, 33 Ill.Dec. 135, 396 N.E.2d 524, and Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8, the court held that by furnishing medical services to its employees directly rather than having them provided at outside facilities by private medical personnel, Caterpillar Tractor subjected itself to tort liability under the "dual capacity" doctrine. The court held, too, that the exclusive-remedy provision of the compensation act, as applied to co-employees, could not be "abrogated" by the doctrine, and it affirmed the dismissal of the suit against Drs. Neu, Godby, and Patalinghug. We granted Caterpillar Tractor's petition for leave to appeal. 73 Ill.2d R. 315(a).

The question for us is whether an employee whose injury arose out of and in the course of employment is barred by the exclusive-remedy provision of the Workmen's Compensation Act from recovering damages in a negligence action against the employer-company for aggravated injuries sustained in medical treatment by employees of the same company.

The design underlying the Workmen's Compensation Act was that the cost of industrial injuries should be borne by industry and not by the injured employee or by the general public. Thus our act provides that if an employee's injury arises out of and in the course of employment it is compensable, and questions of negligence, contributory negligence, and assumption of risk are not to be considered. Balanced against the imposition of no-fault liability upon the employer are statutory limitations upon the amount of the employee's recovery, depending upon the character and the extent of the injury. As part of this "balancing," the Act further provides that the statutory remedies under it shall serve as the employee's exclusive remedy if he sustains a compensable injury.

Section 5(a) of the Act provides:

"No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee * * * other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury." Ill.Rev.Stat.1977, ch. 48, par. 138.5(a).

Section 11 of the Act states:

"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act." Ill.Rev.Stat.1977, ch. 48, par. 138.11.

In relatively recent years an exception to the exclusive-remedy provision of the Workmen's Compensation Act has developed under what has come to be called the dual-capacity doctrine. Professor Larson, in his treatise on Workmen's Compensation Laws states: "Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer." (2A A. Larson, Workmen's Compensation sec. 72.80, at 14-112 (1976).) The doctrine of dual capacity was applied by this court in Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313, 33 Ill.Dec. 135, 396 N.E.2d 524.

Under the circumstances here the doctrine will not permit the plaintiff to maintain a negligence action against the employer. The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer's conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company's or individual's first role as an employer. If the obligations are related, the doctrine is not applicable.

Our workmen's compensation act requires that an employer "provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury." (Ill.Rev.Stat.1977, ch. 48, par. 138.8(a).) The respondent here, in providing medical services to its employees, was meeting a duty imposed upon it as an employer under the Workmen's Compensation Act. That it chose to provide the services directly rather than through physicians hired independently does not alter the fact that medical services were rendered in response to the Act in its capacity as an employer. Larson states that it is clear that dual capacity will not be found simply because an employer has a number of departments with separate functions and operations. 2A A. Larson, Workmen's Compensation sec. 72.80 (1976).

The majority of the appellate court panel in this case relied strongly on Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8. There the plaintiff was employed as a practical nurse at her employer's clinic and was injured in the handling of a patient. She was treated by her employer, Dr. Shane, a chiropractor, and another chiropractor employed by him. She later filed a personal injury suit against both chiropractors, whose treatments, she claimed, had aggravated her injury. The court held that her suit was not barred by the exclusive-remedy provision in California's workmen's compensation act. Upon first observing that a compensation award would not bar a personal injury suit against an independent physician engaged by an insurance company, the court stated: "(I)t would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a 'person other than an employer' within the meaning of * * * (the) Labor Code. * * * In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but...