Austin v. St. Joseph Hosp.

• Decision Date: 25 August 1989
• Docket Number: No. 1-87-3351,1-87-3351
• Citation: 135 Ill.Dec. 364,543 N.E.2d 932,187 Ill.App.3d 891
• Parties: , 135 Ill.Dec. 364 Annie AUSTIN, Plaintiff-Appellant, v. ST. JOSEPH HOSPITAL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 932

543 N.E.2d 932

187 Ill.App.3d 891, 135 Ill.Dec. 364

Annie AUSTIN, Plaintiff-Appellant, v. ST. JOSEPH HOSPITAL, Defendant-Appellee.

No. 1-87-3351.

Appellate Court of Illinois,

First District, Fifth Division.

Aug. 25, 1989.

Dissenting Opinion Sept. 8, 1989.

Stamos, Rimland, Halprin & Clark, Chicago, for plaintiff-appellant.

Johnson & Drozdzik, Ltd., Chicago, for defendant-appellee.

Justice LORENZ delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Cook County granting summary judgment (Ill.Rev.Stat.1985, ch. 110, par. 2-1005) for defendant.

We affirm.

On October 7, 1985, plaintiff, Annie Austin, filed a complaint against defendant, St. Joseph Hospital (St. Joseph), her former employer, alleging she was discharged from employment as a staff nurse in retaliation for filing a workers' compensation claim with the Illinois Industrial Commission. Defendant denied the material allegations of the complaint.

On September 4, 1986, defendant moved for summary judgment. Defendant supported the motion with plaintiff's own deposition testimony, relevant portions of which we summarize below, and exhibits offered in conjunction therewith.

Plaintiff testified she was hired by St. Joseph on January 25, 1982. Plaintiff acknowledged that an employee handbook, in effect at the time she was discharged, embodied the employment agreement between plaintiff and St. Joseph. Plaintiff's signature on a receipt slip for the handbook appeared below an acknowledgment that the policies contained in the handbook were "explained or provided" to her. Her signature also appeared on a second similar receipt indicating her understanding that policies contained in the handbook were subject to change without notice.

Plaintiff testified that she injured her back on May 7, 1984, while lifting a patient out of bed. At some point following her injury, plaintiff filled out an injury report. She was examined by one of the physicians in the emergency room and was sent home. She was also sent home early on her next scheduled day of duty at the hospital. Plaintiff reported to work on her next scheduled day of duty thereafter and was examined by Dr. Shin. Sometime before being examined by Shin, plaintiff had been examined by Dr. Avora at Chicago Health Service upon her father's referral. Plaintiff During the last two weeks of May, plaintiff was also examined by Dr. Hyman, a staff physician at St. Joseph. Hyman released her for work, but limited her activities to duties which did not require her to lift more than five pounds. After Hyman's release, she spoke to her supervisor, Ellen O'Mara, about the possibility of returning to work with those restrictions, but was told no such work was available.

[135 Ill.Dec. 365] was placed on "light duty" status at the hospital.

For approximately five days in June 1984, plaintiff was hospitalized at St. Joseph. Plaintiff was treated there by Hyman, Dr. Horwitz, a neurologist, and Dr. Scott, an internist. However, plaintiff testified, because she was not receiving adequate attention, she requested a transfer to Rush Presbyterian St. Luke's Hospital (Rush), where plaintiff's internist, Dr. Williamson, was affiliated. Plaintiff stated St. Joseph initially refused to pay for the transfer. Plaintiff stated that when she arranged, independently through her sister, to hire an ambulance for that purpose, defendant acquiesced. She stated that Hyman told her that if she left St. Joseph without being transferred, she would lose her "workers'."

Plaintiff stated that after being examined at Rush by a physical therapist, she developed the impression that she would be under the care of the physical therapist for two to three weeks "based on what [was] uncovered." Plaintiff stated that later that day she spoke with O'Mara and told O'Mara what the therapist had discovered. Plaintiff stated that the physical therapist thereafter "changed her plans" and decided she did not need to see plaintiff for two to three weeks. Plaintiff stated the therapist "couldn't or wouldn't" explain her reasons. Plaintiff also stated that during her hospitalization at Rush, St. Joseph wanted to refer her to a particular neurologist but that she "refused him" because she "felt he may have had a bias." She did not recall the physician's name.

Plaintiff acknowledged she believed "very strongly" that her refusal to see the physician referred by St. Joseph somehow affected the treatment she received from Williamson. Plaintiff explained that when she arrived at Rush, there was a "discrepancy" between the treatment she expected and the treatment she received.

Plaintiff stated that she began to receive workers' compensation payments retroactively in May or June, but had received no benefits between the period of her hospitalization at St. Joseph and her stay at Rush. Plaintiff stated that after she was discharged from Rush in July 1984, she complained about not receiving benefits during that time. Plaintiff also stated that on July 6, 1984, she had filed an application for adjustment of her workers' compensation claim with the Illinois Industrial Commission. Plaintiff acknowledged, however, that she did receive the entirety of benefits due. Plaintiff's benefits terminated in October of 1984.

Plaintiff testified that following her discharge from Rush, she continued to receive treatment from Williamson and a treatment group at Cook County Hospital. Plaintiff paid for that treatment herself.

In August 1984, she was examined by Dr. Leonard Smith at the request of either St. Joseph or the insurance carrier associated with the workers' compensation benefits. Following that examination on October 15, 1984, plaintiff spoke with Pam Linke of St. Joseph over the telephone about returning to work. Plaintiff was advised that Smith had determined plaintiff could return to work and that she was to do so on October 22, 1984. Plaintiff was also advised that her workers' compensation benefits would stop on October 19, 1984. Plaintiff told Linke that her physicians had not yet released her to return to work but told her she could return to work if she did not have to lift anything and if she could control the amount of standing or sitting required.

Plaintiff testified that later that month, she received a letter from Janet Poeppelman, St. Joseph's risk manager, requesting that plaintiff schedule a date for her return to work. Plaintiff stated that after receiving the letter from Poeppelman, she attempted to reach her by telephone, but was On Saturday, November 3, 1984, plaintiff received a telegram notifying her of termination of her employment for the failure to report to work on three consecutive dates: October 29, 30, and 31, 1984, in conjunction with hospital policy contained in the St. Joseph handbook. On the following Monday, she called Linke. Plaintiff told Linke that she was not able to return to work on a full time basis and stated that, on two of the three dates she had not gone to work, she had been scheduled for physical therapy at Rush.

[135 Ill.Dec. 366] told that Poeppelman was on vacation. Plaintiff sent a certified letter dated October 25, 1984, to Poeppelman in response indicating that plaintiff had elected to obtain an additional medical opinion.

Plaintiff stated that, after receiving the notice of termination, she filled out a grievance report with St. Joseph. Thereafter, she met with Linke, O'Mara, and Janet Burdulis on November 13, 1984. Plaintiff's grievance was eventually rejected.

Plaintiff also filed charges with the Illinois Division of Human Rights. Those charges were dismissed on December 30, 1985.

In response to questions concerning whether plaintiff had ever been told by anyone associated at St. Joseph that they were unhappy that she had filed a workers' compensation claim, plaintiff stated she did not recall. Plaintiff did state that "a couple of girls" had mentioned to her that they had heard plaintiff had filed a complaint against St. Joseph. Plaintiff stated those individuals were Jane Babula and two women, Margie and Helen, whose last names plaintiff could not recall,

Throughout plaintiff's deposition, defendant's counsel offered, and plaintiff identified, numerous documents pertaining to questions posed to plaintiff. The exhibits included: a copy of the St. Joseph Hospital Employee Handbook; a letter from Smith to St. Joseph's insurance carrier, dated August 18, 1984, stating plaintiff was able to perform her regular work activities without restriction; Poeppelman's letter to plaintiff, dated October 19, 1984, stating that the hospital was informed of plaintiff's release and that plaintiff was to schedule a date to return to work; plaintiff's letter to Poeppelman, dated October 25, 1984, stating that plaintiff planned to seek an additional medical opinion from an independent physician and that she would contact the hospital thereafter; and the telegram dated November 2, 1984, terminating plaintiff's employment.

The record reflects that prior to the scheduled hearing date on defendant's motion, plaintiff moved to strike defendant's motion for summary judgment. Plaintiff argued that the motion for summary judgment was insufficient to demonstrate that no issue of fact existed because it was based solely on plaintiff's deposition testimony and attached exhibits.

At the hearing on May 20, 1987, the trial judge refused to consider plaintiff's motion because plaintiff's counsel did not appear in court. However, the trial judge permitted defendant's counsel to argue the motion for summary judgment and ruled for defendant. Plaintiff's subsequent motion to reconsider was denied on October 8, 1987. This appeal followed.

OPINION

On appeal, plaintiff contends the trial court erred in denying plaintiff's motion to strike, and thereby considered incompetent evidence in ruling on St. Joseph Hospital's motion for summary judgment. Specifically, plaintiff points out that the motion...