Hartlein v. Illinois Power Co.

• Decision Date: 11 March 1991
• Docket Number: No. 5-90-0273,5-90-0273
• Citation: 568 N.E.2d 520,209 Ill.App.3d 948
• Parties: , 154 Ill.Dec. 520 David HARTLEIN, Petitioner-Appellee, v. ILLINOIS POWER COMPANY, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 520

568 N.E.2d 520

209 Ill.App.3d 948, 154 Ill.Dec. 520

David HARTLEIN, Petitioner-Appellee, v. ILLINOIS POWER COMPANY, Respondent-Appellant.

No. 5-90-0273.

Appellate Court of Illinois,

Fifth District.

March 11, 1991.

Gundlach, Lee, Eggmann, Boyle & Roessler, Carl W. Lee, Thomas R. Peters, of counsel, Belleville, for respondent-appellant.

Cueto & Cueto, Ltd., Amiel Cueto, Belleville, for petitioner-appellee.

Justice HARRISON delivered the opinion of the court:

Plaintiff, David Hartlein, is employed by defendant, Illinois Power Company, and is currently receiving total temporary disability payments under the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.) as a result of a work-related injury. After being threatened that he might lose his job because of his injury and after being ordered by Illinois Power to seek employment elsewhere, plaintiff obtained a preliminary injunction restraining the company from, inter alia, discharging him, "discontinuing any rights or benefits or privileges of [his] employment," or ordering him to apply for other jobs. From that order Illinois Power brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill.2d R. 307(a)(1)). As grounds for its appeal, the company contends that plaintiff should have been barred from bringing a common law action for injunctive relief because his claim falls within the exclusive purview of the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.). In the alternative, the company argues that the circuit court's order should be reversed and the preliminary injunction vacated because plaintiff failed to establish the elements necessary to warrant preliminary injunctive relief. For the reasons which follow, we affirm.

The record before us shows that on April 20, 1990, plaintiff filed what he denominated as a "Petition for Temporary Restraining Order[,] Preliminary Injunction, and Permanent Injunction" in the circuit court of St. Clair County. Attached to that petition was an affidavit by plaintiff which incorporated by reference a "Chronology of Events" relevant to the dispute. At the hearing on plaintiff's motion for a preliminary injunction, the facts contained in the affidavit were stipulated to by Illinois Power. Those facts, together with testimony from an Illinois Power claims adjuster named Preston Martin, showed that on June 15, 1987, plaintiff sustained a serious foot injury while working for Illinois Power as an apprentice lineman. As a result of this injury, plaintiff was placed on temporary total disability.

Approximately five months after the injury occurred, plaintiff's treating physician Dr. Chen, authorized him to return to work on the conditions that he be restricted to light duty and limited walking and that he not be permitted to do any climbing. The following month, Dr. Maurice Miller examined plaintiff at the request of Illinois Power and concluded that plaintiff could not return to work as a lineman. Illinois Power then hired a "disability management and rehabilitation" service known as ConServCo to evaluate plaintiff's condition and perform "appropriate vocational services."

Pursuant to instructions from Illinois Power, a ConServCo counselor named Michael McKee arranged to have plaintiff evaluated by Dr. Sherwyn J. Wayne. Wayne concluded that plaintiff did "not appear to be a candidate for rehabilitation to resume his previous work activities as a lineman * * *," but recommended that he undergo a so-called "work hardening" program at the Cole Center for Work-Related Injury. At the request of Illinois Power, arrangements were made for plaintiff to participate in that program, and he enrolled in the program in the middle of August 1988. Plaintiff's participation in the "work hardening" program ended at the end of September 1988, and Dr. Wayne then authorized him to return to work.

Plaintiff resumed working at Illinois Power on October 4, 1988. He was assigned the job of meter reader. After less than two months, however, plaintiff had to stop work again because his foot injury prevented him from completing the routes he had been assigned. When this happened, plaintiff was once again placed on temporary total disability.

On January 6, 1989, plaintiff's attorney contacted Preston Martin, the Illinois Power claims adjuster, and proposed that plaintiff be assigned to other work within the company which would be compatible with his physical limitations. This proposal was never accepted by Illinois Power. To the contrary, Martin indicated at the hearing on the preliminary injunction that as far as the company was concerned, it had no jobs which plaintiff was capable of performing. Although Illinois Power would not or could not return plaintiff to work, both the company and its workers' compensation insurance carrier did not want to continue making temporary total disability payments to him. Accordingly, a plan was formulated to require plaintiff to seek employment elsewhere.

As part of this plan, Mike McKee, the counselor from ConServCo, requested plaintiff to prepare a resume which could be sent to other prospective employers. McKee told plaintiff, however, that he should not mention his foot injury to any prospective employers. Plaintiff's attorney advised McKee that plaintiff would cooperate with Illinois Power, but that he would not lie regarding his physical condition. At the same time, plaintiff's attorney advised Preston Martin that plaintiff would not voluntarily resign from the company unless he obtained another job "exactly comparable in every respect" to the position he held at Illinois Power. The attorney also complained that plaintiff was receiving repeated threats of discharge, and he requested that Martin send him a written description of the plan the company wanted plaintiff to follow.

Plaintiff's attorney subsequently contacted Martin again and advised him that he did not believe that plaintiff was required by law to undergo a vocational rehabilitation program chosen by Illinois Power. Plaintiff's attorney asked Martin to indicate whether it was ordering or merely requesting plaintiff to continue dealing with ConServCo. Plaintiff's attorney advised Martin that if the company was simply making a request, the request was denied and that plaintiff would not cooperate further with ConServCo. Plaintiff's attorney related this same message to McKee. At the same time, he advised McKee not to contact plaintiff directly and told him not to distribute any resumes or job applications to anyone on plaintiff's behalf.

McKee responded by sending to plaintiff's attorney a proposed rehabilitation plan which called for a "job search and attempted placement" to be conducted "within and outside Illinois Power Co." Plaintiff's attorney formally rejected McKee's proposed plan by letter dated February 7, 1989. Thereafter, on April 11, 1990, Preston Martin sent a letter to plaintiff which included a list prepared by McKee of various other employers and possible job opportunities. In the letter, Martin requested that plaintiff contact these employers regarding job availability. Martin directed plaintiff to begin this job search immediately and to contact him within two weeks to advise him of the companies he had contacted, the persons with whom he interviewed, and the results of each interview. At the hearing on the preliminary injunction, Martin testified that Illinois Power had no plans to discharge plaintiff, but that if he did not apply for other jobs, the company intended to stop his temporary total disability payments.

Plaintiff then brought his action for a temporary restraining order, preliminary injunction and permanent injunction. On April 20, 1990, the circuit court granted a temporary restraining order without notice. Under that order, Illinois Power was enjoined from "discharging [plaintiff] or from changing the status quo, or from injuring [plaintiff's] employment rights, or from discontinuing any rights or benefits or privileges of [plaintiff's] employment, or from ordering [plaintiff] to apply for other jobs." Following a hearing, the circuit court subsequently issued a preliminary injunction which incorporated these same terms. The court added, however, that it was specifically not enjoining "the Industrial Commission, nor [was] it enjoining Illinois Power from applying or petitioning to the Industrial Commission on any matter."

On this appeal, Illinois Power first contends that the order granting the preliminary injunction should be reversed and that the preliminary injunction should be vacated because plaintiff's exclusive remedy lies under the Worker's Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.) and he is not entitled to bring an independent common law action. We disagree.

Under Illinois law, it is unlawful for an employer to discharge an employee "because of the exercise of his * * * rights or remedies granted to him * * * by [the Workers' Compensation] Act." (Ill.Rev.Stat.1987, ch. 48, par. 138.4(h).) Where such a discharge takes place, the Workers' Compensation Act is not the employee's sole avenue of recourse. Rather, the employee has a cause of action against the employer in tort for retaliatory discharge. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181-86, 23 Ill.Dec. 559, 563-65, 384 N.E.2d 353, 357-59.) Plaintiff here expressly founds his action on this theory of recovery, and he had no alternative but to bring his retaliatory discharge claim as an independent action. Such claims must be brought independently. They cannot be pursued in a workers' compensation proceeding. Marin v. American Meat Packing Co. (1990), 204 Ill.App.3d 302, 311, 149 Ill.Dec. 818, 824, 562 N.E.2d 282, 288; Garrison v. Industrial Comm'n (1980), 83 Ill.2d 375, 377, 47 Ill.Dec. 347, 349, 415 N.E.2d 352, 354.

To make out a claim of retaliatory discharge, a plaintiff must plead and prove (1) that he was discharged, (2)...