Grabs v. Safeway, Inc.

• Decision Date: 30 September 2009
• Docket Number: No. 1-08-3007.,1-08-3007.
• Citation: 917 N.E.2d 122,334 Ill.Dec. 525
• Parties: Fred W. GRABS and Rudolph Francek, Plaintiffs-Appellees, v. SAFEWAY, INC., and Dominick's Finer Foods, LLC., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

917 N.E.2d 122

334 Ill.Dec. 525

Fred W. GRABS and Rudolph Francek, Plaintiffs-Appellees, v. SAFEWAY, INC., and Dominick's Finer Foods, LLC., Defendants-Appellants.

No. 1-08-3007.

Appellate Court of Illinois, First District, Third Division.

September 30, 2009.

Vedder Price P.C., Chicago (Thomas M. Wilde and Patrick W. Spangler, of counsel), for Appellants.

Rittenberg, Buffen & Gulbrandsen, Chicago (Ivan M. Rittenberg and Steven R. Saks, of counsel), for Appellees.

MODIFIED UPON REHEARING

Justice QUINN delivered the opinion of the court:

Plaintiffs filed a joint complaint against their former employer, defendant Dominick's Finer Foods, LLC, and its parent company, Safeway, Inc. (collectively Dominick's or defendants), alleging their discharge was in retaliation for filing claims pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)). Dominick's maintained that it terminated plaintiffs' employment pursuant to its neutrally applied attendance policy after Dominick's obtained an opinion from an independent medical examiner (IME) that plaintiffs could return to work without restrictions and plaintiffs failed to come to work or call in their absences for three days in a row. The circuit court denied plaintiffs' motion for summary judgment on their claims, but subsequently granted plaintiffs' motion to reconsider and entered summary judgment in favor of plaintiffs. The circuit court then granted defendants' motion for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308). On October 21, 2008, the circuit court certified the following question for interlocutory appeal:

"Does the Workers' Compensation Act give the Illinois Workers Compensation Commission the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee's doctor and the employer's IME, the employer may not rely upon the IME opinion to terminate the employee under the employer's attendance policy for failing to return to work, before the Commission has adjudicated the pending dispute over the conflicting medical opinions?"

Defendants timely filed an application for leave to appeal on November 3, 2008, and this court allowed the application on November 26, 2008.

For the following reasons, we find that when an employer is faced with conflicting medical opinions from the employee's doctor and the employer's IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work or for failing to call in his absences. We decline to find that a per se standard exists to recover for a workers' compensation retaliatory discharge claim; rather, an employee must meet his burden of proof to show that his discharge was causally related to the exercise of his rights under the Act.

I. BACKGROUND

Plaintiffs were both employed by defendants and worked at a Dominick's store in Cook County, Illinois. On March 4, 2005, Grabs was injured while at work at Dominick's and Grabs filed a workers' compensation claim on that date. Dominick's initially approved the claim and paid Grabs' medical bills and temporary total disability benefits. On March 16, 2006, Grabs' physician, Dr. Sweeney, recommended that Grabs remain off work. On March 25, 2006, Grabs visited Dr. Bernstein, an IME, and Dr. Bernstein determined that Grabs' injury was not work related and that he could return to work with no restrictions. Grabs decided to follow his physician's advice, Dr. Sweeney, and remained off work.

Francek alleged that he suffered work injuries on May 28, 2005, and January 9, 2006. Francek filed four workers' compensation claims, the last two of which he alleged led to his discharge. Dominick's denied these last two claims and requested that Francek submit to an independent medical examination, which was performed by Dr. Papierski. Dr. Papierski determined that the injury was not work related and released Francek to work immediately with no restrictions. Around this same time, Francek was also examined by his personal physician, Dr. Bartucci, who recommended that Francek remain off work. Francek followed the advice of Dr. Bartucci and remained off work.

Dominick's had a no-fault attendance policy, in which an employee may be terminated for job abandonment if he does not come in to work or call in his absences for three days in a row (i.e., attendance coding "Code 10-No Call/No-Show"). Following the opinions of the IMEs, Dominick's changed plaintiffs' attendance coding from work related injury, which did not require them to call in their absences, to require plaintiffs to return to work or call in their absences. On June 14, 2006, when Grabs did not return to work or call in his absence, Dominick's no-fault attendance policy began running. When Grabs did not report to the office or call in his absences on June 15 or 16, Dominick's terminated his employment in accordance with its attendance policy. Similarly, on June 19, 2006, when Francek failed to return to work or call in his absence, Dominick's began the tolling of its attendance policy. After Francek failed to come into work or call in his absences on June 20 and 21, Dominick's terminated his employment.

Plaintiffs filed claims against defendants alleging retaliatory discharge. On May 2, 2008, the circuit court denied plaintiffs' motions for summary judgment on their claims and granted defendants' motion for severance of the trials.

On July 7, 2008, the Illinois Workers' Compensation Commission (Commission) issued its final decisions with respect to plaintiffs' petitions for an emergency hearing by an arbitrator, filed pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), to resolve the dispute whether plaintiffs were capable of returning to work. In its decision, the Commission adopted the findings of the arbitrator of the Commission. The arbitrator accepted the findings of plaintiffs' personal physicians, Drs. Sweeney and Bartucci, and found defendants' IMEs unpersuasive. The arbitrator determined that plaintiffs' injuries were caused by accidents that arose out of and in the course of their employment with defendants. Specifically, Grabs was injured on March 4, 2005, as he was twisting and moving a 10-pound box. Francek was injured on January 9, 2006, as he was moving boxes above shoulder height. The arbitrator noted that at the time of its decision, plaintiffs were both being treated by their physicians, who had not released plaintiffs to work. Accordingly, the arbitrator found that plaintiffs were exercising their rights, pursuant to section 8(a) of the Act (820 ILCS 305/8(a) (West 2006)), to follow their physicians' advice and not return to full duty work. The arbitrator stated that, pursuant to section 8(a), plaintiffs could ignore an IME recommendation that contradicted their treating physicians' advice. The arbitrator also found that, pursuant to sections 18 and 19 of the Act (820 ILCS 305/18, 19 (West 2006)), the resolution of the medical dispute over whether plaintiffs could return to work was for the Commission to resolve. At the time defendants terminated plaintiffs' employment, plaintiffs had pending petitions for an immediate hearing on the issue of whether each was capable of returning to work, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)). The arbitrator also determined that the IME opinions, used by defendants to change plaintiffs' attendance coding to require them to return to work or call in their absences, were created as part of defendants' workers' compensation defense to plaintiffs' claims for temporary total weekly compensation and medical care prescribed by their physicians. The arbitrator concluded that defendants were obligated to pay plaintiffs for temporary total disability benefits and medical services and prospective medical care.

On September 19, 2008, in an eight-page written order, the circuit court granted plaintiffs' motion to reconsider, in part, and granted plaintiffs' motion for summary judgment on the issue of liability. The circuit court denied plaintiffs' motion to reconsider its ruling granting defendants' motion for separate trials on damages. In its order, the circuit court found that plaintiffs had a right to follow their treating doctors' advice and not return to work until the Commission resolved the conflicting medical opinions. The circuit court noted that while plaintiffs had a petition pending before the Commission to determine the issue of whether plaintiffs were capable of returning to work, defendants used the IME reports to change plaintiffs' attendance coding to "Code 10-No Call/No-Show." While plaintiffs had no previous duty to call in absences, the new coding required plaintiffs to do so. After Grabs and Francek failed to call in three days in a row, defendants terminated them pursuant to Dominick's attendance policy. The circuit court found that the fact that the attendance policy was "neutral," in that it was applied in the same manner to all employees did not shield defendants under the "nonpretextual" exception to plaintiffs' retaliatory discharge claim where the application of the policy was improper and in violation of the Act. The circuit court concluded that because the change in coding was in response to the IME reports, which were disputed by plaintiffs' treating physicians and should have been resolved by the Commission prior to any action by defendants, plaintiffs' discharge was directly and proximately related to their claims for benefits under the Act, and summary judgment in their favor was proper. In reaching its determination, the circuit court relied on this court's decision in Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694, 232 Ill.Dec. 1, 697 N.E.2d 743 (1998). All parties on appeal assert that the circuit court applied essentially a per se standard to find that plaintiffs' discharge was...