Hartlein v. Illinois Power Co.

• Decision Date: 01 October 1992
• Docket Number: No. 72303,72303
• Citation: 601 N.E.2d 720,176 Ill.Dec. 22,151 Ill.2d 142
• Parties: , 176 Ill.Dec. 22, 7 IER Cases 1387 David HARTLEIN, Appellee, v. ILLINOIS POWER COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 720

601 N.E.2d 720

151 Ill.2d 142, 176 Ill.Dec. 22, 7

IER Cases 1387

David HARTLEIN, Appellee, v. ILLINOIS POWER COMPANY, Appellant.

No. 72303.

Supreme Court of Illinois.

Oct. 1, 1992.

Carl W. Lee and Thomas R. Peters, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, and Arthur J. Kowitt, Danuta Bembenista Panich, Mayer, Brown & Platt, Chicago, for appellant.

Amiel Stephen Cueto, Cueto, Cueto & Cueto, Ltd., Belleville, for appellee.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, David Hartlein, filed a petition for a temporary restraining order, preliminary injunction, and permanent injunction in the circuit court of St. Clair County. The petition alleged that the defendant, Illinois Power Company (Illinois Power), Hartlein's employer, sought to discharge him in retaliation for his exercise of rights under the Workers' Compensation Act (the Act) (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.). The circuit court entered a temporary restraining order. Following hearing, the circuit court granted a preliminary injunction. Defendant appealed. The appellate court affirmed. (209 Ill.App.3d 948, 154 Ill.Dec. 520, 568 N.E.2d 520.) This court granted defendant's petition for leave to appeal pursuant to Supreme Court Rule 315 (134 Ill.2d R. 315). We now reverse the appellate court's decision.

ISSUE

The issue presented is whether the trial court abused its discretion by granting a preliminary injunction, where an employer had, allegedly, begun discharging an employee in retaliation for his exercise of rights under the Workers' Compensation Act.

FACTS

On June 15, 1987, Hartlein injured his right foot while working as an apprentice lineman for Illinois Power. At the time, Hartlein had worked for Illinois Power for approximately eight years. After being injured, Hartlein, began receiving "temporary total" disability (TTD) benefits in accordance with the Illinois Workers' Compensation Act (Ill.Rev.Stat.1989, ch. 48, par. 138.8(b)).

In November 1987, Dr. Samuel Chen, Hartlein's treating physician, released Hartlein to return to work under restrictions of "light duty and limited walking" and "no climbing." In December 1987, Dr. Maurice Miller examined Hartlein at Illinois Power's request and concluded that it would be unsafe for Hartlein to return to work as a lineman. Dr. Miller recommended In June 1988, ConServCo, a "disability management and rehabilitation service" retained by Illinois Power, began providing rehabilitation services to Hartlein. Michael McKee, a rehabilitation consultant employed by ConServCo, arranged for Hartlein's evaluation by Dr. Sherwyn Wayne, an orthopedist.

[176 Ill.Dec. 25] that "alternative forms of work should be evaluated."

Sometime in July 1988, Dr. Wayne concluded that it did not appear that Hartlein could be rehabilitated to resume his former position as a lineman. Dr. Wayne stated, however, that Hartlein was "definitely a candidate for work in the medium level" following appropriate rehabilitation. Wayne stated that the position of meter reader was within that category. He also stated that it was possible that Hartlein might perform at the "medium/heavy work level, such as that performed by a warehouseman" as Hartlein had the strength capacity to perform that job and the work entailed could require less walking than meter reading. Wayne recommended that Hartlein undergo a "work hardening" program at the Cole Center for Work-Related Injury (Cole). At the request of Illinois Power, arrangements were made for Hartlein to participate in the program.

Hartlein began participating in the program at Cole during August 1988. Cole preliminarily evaluated Hartlein as being marginally able to return to work at both the "medium" and "medium/heavy" levels of job demand standards established by the United States Department of Labor. While Hartlein was participating in the rehabilitation program, his attorney, Amiel Cueto, wrote to Preston Martin, Illinois Power's disability claims adjuster, complaining that Illinois Power and its agents were threatening to discharge Hartlein. According to Cueto's letter, someone named "Doug" told Hartlein that "if [Hartlein's] foot didn't get better soon, [Hartlein] would have to find a new job somewhere else." Cueto further claimed that the rehabilitation which Hartlein was undergoing was related to developing upper-body strength and was not directed toward rehabilitating Hartlein's foot.

At the end of September 1988, Dr. Wayne released Hartlein to return to work at Illinois Power. In October 1988, Hartlein resumed work with Illinois Power as a meter reader. This assignment ended, however, in mid-December 1988, because Hartlein's foot injury prevented him from completing his routes. Once again, Hartlein began receiving TTD benefits.

On January 6, 1989, Cueto wrote to Martin, advising him that Hartlein would participate in a vocational rehabilitation program, involving interviews with other employers, even though Cueto believed that Hartlein was not required under law to participate in the employer's program. Cueto recalled that he had earlier asked Martin whether Illinois Power was going to fire Hartlein, and Martin allegedly responded "I wouldn't exactly call it 'firing,' it's just that [Hartlein] can't do the job and so he's going to have to find another one." Cueto suggested to Martin that Hartlein be assigned to a position within his capacities ("garage-type" job, light-duty meter reader, storeroom), much as Illinois Power had done for another employee. Cueto further advised that Hartlein would not resign his job at Illinois Power unless he was guaranteed another "exactly comparable" job.

On January 6, 1989, Martin wrote a memo to Cueto. Martin confirmed that Cueto had denied him permission to contact Hartlein directly with respect to "job development and eventual placement with a new employer."

On January 17, 1989, Cueto again wrote to Martin. According to Cueto, McKee had visited Hartlein that day and told him to begin drafting resumes. With respect to Hartlein's continued employment, McKee told Hartlein that "nothing is forever," and advised him not to volunteer information about the condition of his foot to prospective employers. Cueto demanded that Illinois Power put its vocational rehabilitation plan in writing. He reiterated that Hartlein would "not voluntarily resign * * * unless he gets another job exactly comparable in every respect." The same day On January 31, 1989, Cueto wrote to Martin once again. Cueto requested written clarification as to whether Hartlein was being "requested" or "ordered" to cooperate with vocational rehabilitation. Cueto stated that if Hartlein was being requested to cooperate, Hartlein would not. Cueto advised that Hartlein might decide, however, to participate in a "real" vocational rehabilitation program of his own choosing. During a subsequent telephone conversation between Cueto and Martin that same day, Martin advised that Illinois Power considered its directive to Hartlein to be a request. During cross-examination at the preliminary injunction hearing, however, Martin agreed with the characterization that Hartlein was "ordered" to participate in rehabilitation.

[176 Ill.Dec. 26] Cueto also wrote to McKee, advising him that Hartlein would cooperate with Illinois Power, "so that Illinois Power [would] have no pretext to fire him."

McKee subsequently sent Cueto a written proposed rehabilitation plan which called for a "job search and attempted placement" to be conducted "within and outside Illinois Power." McKee requested that Hartlein submit his own rehabilitation plan should the proposed plan be unacceptable. In February 1989, Hartlein, through Cueto, rejected the plan submitted by McKee; the "job search" described in the plan was considered "unnecessary and unwarranted." Hartlein continued to receive TTD benefits throughout the balance of 1989.

In March 1990, McKee advised Cueto that Illinois Power had no current positions within Hartlein's physical limitations. McKee stated that Hartlein's file was being reactivated to conduct "labor market surveys and job development activities to demonstrate that employment opportunities are available within [Hartlein's] last known physical limitations."

On April 11, 1990, Martin wrote to Hartlein, stating:

"I am sending you a list of prospective job listing [sic ] and we ask you contact these businesses regarding job availability.

Please start the job search as soon as you receive this material. Within two weeks please advise me the name of the company, person conducting the interview and the results of each interview.

It is most important the job search be done to comply with the worker's compensation law."

Hartlein filed the instant action, seeking a temporary restraining order, preliminary injunction and permanent injunction. Hartlein alleged that, by directing him on April 11, 1990, to start a job search, Illinois Power had "started the process of retaliatory discharge." The trial court subsequently issued a temporary order restraining Illinois Power from discharging Hartlein, injuring his employment rights, discontinuing "any rights or benefits or privileges" of his employment, ordering him to apply for other jobs, or changing the status quo. Shortly thereafter, hearing on the preliminary injunction was held. The parties stipulated to the facts presented in Hartlein's petition, an attached chronology, various letters, and his supporting affidavit.

Martin testified during the hearing that Illinois Power had no currently available positions which Hartlein was then physically able to do. Other than Cueto's proposal to Martin that Hartlein be transferred to other positions within his capacities at Illinois Power, no evidence was offered concerning such other positions, their availability, or whether Illinois Power did or did not pursue Cueto's proposal. Martin further testified that Illinois Power had no plans to discharge...