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Workers’ Compensation FLASHPOINTS September 2019

September 13, 2019Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

The appellate court recently issued an opinion concerning a case for workers’ compensation retaliatory discharge. This is a long opinion, over 50 pages. The facts are very detailed and concern the actions of the plaintiff and the reasons for his employer terminating his employment. The focal issue is causation and whether he established that his termination was in retaliation for exercising his rights under the Workers’ Compensation Act, 820 ILCS 305/1, et seq. The case is important as a refresher on the elements of proving a workers’ compensation retaliatory discharge and the element of causation. It will also help those who are not familiar with this tort.

Plaintiff Fails To Prove He Was Fired for Exercising His Rights Under Workers’ Compensation Act

The appellate court affirmed the judgment of a trial court following a bench trial in Matros v. Commonwealth Edison Co., 2019 IL App (1st) 180907. The plaintiff was an overhead electrician specialist who worked for ComEd for over 20 years. He had a work-related injury to his right shoulder on April 23, 2002, and also claimed an injury to his left shoulder and psyche on October 3, 2003. An arbitrator awarded benefits for both injuries. ComEd filed for review. While the review was pending, the plaintiff filed his workers’ compensation retaliatory discharge action against ComEd on March 19, 2007.

The Commission modified the arbitrator’s decision in both cases. Because the petitioner had been suspended from work, he was not entitled to temporary total disability (TTD) benefits for the period of the suspension. The Commission also found that his anxiety and depression were unrelated to his April 23, 2002, right shoulder injury. The Commission also found no causal connection between the October 3, 2003, injury and his current psychological condition of ill-being. The plaintiff appealed the Commission’s decisions, and those were affirmed in Matros v. Illinois Workers’ Compensation Commission, 2013 IL App (1st) 113646WC-U.

While the appeal of the Commission’s decisions was pending, the civil action proceeded with discovery, and a bench trial began on March 26, 2018. The plaintiff testified that in 2001, he was a lamper at the Crestwood office. His responsibility was to repair and maintain streetlights. He described his work-related injury of April 23, 2002, which ComEd accepted. In February 2003, he received a letter from the human resources (HR) department stating he failed to comply with the Occupational Health & Services Department (OHS) by not providing documentation to support his absence from work. Failure to comply would jeopardize his employment status. The plaintiff testified that, at this time and unknown to him, ComEd had stopped paying his disability benefits a week earlier.

The plaintiff returned to work on February 11, 2003, on restricted duty. He went to full duty on March 20, 2003. He claimed his supervisor, Wayne Brazeau, began harassing him about returning to full duty while he was on restrictions. In May 2003, he failed to follow procedure for requesting a vacation day and was not paid for the day he took off work. Also, in May 2003, he was informed he would have to help troubleshoot other electrical problems at Crestwood. He stated that to do this it was necessary to have maps of the area that he had highlighted to facilitate reading them. He claimed his maps were removed from a storeroom. Brazeau’s supervisor, Anthony Cameron, had an extra set of maps. The plaintiff claimed Cameron would not need maps because he was a construction supervisor. Cameron gave him the maps, which he claimed were useless because they were not highlighted. On cross-examination, he admitted that he never suggested that Cameron purposely sabotaged his maps.

In July 2003, Cameron met the plaintiff in the field and requested his work sheets and asked him what he had been doing. The plaintiff gave his clipboard to Cameron and told him he had been on the phone with his girlfriend for 30 minutes. His pants were rolled up, and he did not have a shirt on. Cameron told him to return to headquarters for a fact-finding meeting. At the meeting, he was suspended pending an investigation into customer reports that he was just sitting in his truck. At this time, he saw a Dr. Ibrahim because he was anxious about what was going on with his job. The doctor diagnosed anxiety and depression secondary to the change of the patient’s life with the potential of losing his job.

The plaintiff returned to work on August 5, 2003, and was asked to attend a meeting with management in which surveillance videos were shown of him sitting in his truck in June and July 2003. He was accused of sleeping on the job. He told management he was highlighting his maps. On cross-examination, he admitted he was initially accused of sleeping in his truck on July 1, 2003, and never told anyone at that meeting that he was highlighting his maps. In September 2003, he was called into another meeting in which he was informed that he must leave headquarters by 8:00 a.m., return by 3:10 p.m., and complete 15 to 20 lamp repairs per day. He testified this was completely unreasonable. He claimed he was singled out when he was given a hard time for still being in the yard at 8:20 a.m. and stated that everyone else was still in the yard.

The plaintiff injured his left shoulder on October 3, 2003, while stocking shelves. Marty Quinn, another supervisor, took him to the company clinic and was present during the examination. The physician gave him ibuprofen and instructed him to return to work on full duty. He had an appointment with his own physician, Dr. Smith, who noted pain and tightness on internal rotation and ordered an MRI. Disputes arose between the plaintiff and Mr. Brazeau and Mr. Cameron over his ability to work full duty. He was instructed to return to the company clinic on October 9, 2003. The plaintiff asked the physician to sign a medical authorization form from his workers’ compensation attorney prohibiting the physician from disclosing any information shared by the plaintiff with ComEd. The physician refused to sign the form and refused to examine him. The plaintiff returned to work and told Brazeau that if his shoulder “[got] all messed up because [he was] allowing him to work, some s*** going to hit the fan.” 2019 IL App (1st) 180907 at ¶35. Brazeau ordered him to a coaching session for insubordination. Immediately, the plaintiff returned to Dr. Ibrahim, who referred him to a psychiatrist, prescribed Paxil, and placed him on short-term disability leave for depression and anxiety. The plaintiff applied for disability starting October 10, 2003, through July 2004. He remained off work until January 2004.

Once the plaintiff started on disability, he wrote to Ms. Staples of ComEd’s HR, describing to her the treatment he had been receiving at work, which he described as harassment stemming from his injury and workers’ compensation claim and requested her help. She did not respond to the letter.

On October 23, 2003, the plaintiff saw Dr. Moolayil, a psychiatrist, and in November 2003 he started seeing Sara Contorer, a licensed clinical social worker. He told them he was depressed and felt completely lost because his job was being threatened. He admitted on cross-examination that he was living with his girlfriend at the time but told Dr. Moolayil he was single and living alone. He also admitted travelling to Hawaii in December 2003. He stated he had no idea he had to tell ComEd he was travelling out of town. He agreed that during this time he was not receiving workers’ compensation benefits but rather disability benefits under a union-offered plan (the MBA plan). He agreed that one of the rules of the MBA plan was that an employee receiving benefits was not allowed to leave town without the company’s permission. Still, he claimed he was unaware of this rule when he took the trip.

ComEd scheduled an independent medical examination (IME) for December 18, 2003, which the plaintiff did not attend because he was in Hawaii. It was rescheduled for January 20, 2004, and he did not appear for the exam. He testified he was living with his girlfriend and not receiving any mail ComEd sent to his home address in Tinley Park. He was not able to explain why he had not forwarded mail to his girlfriend’s address.

On January 26, 2004, the petitioner received a letter from Ms. Staples stating it was imperative he report to work immediately and failure to comply would result in his termination. He received a second letter on January 28, 2004. He returned to work on January 30, 2004, and immediately requested all of his vacation days, which was over 25 days. He did not return to work but went on a trip to Spain.

On March 4, 2004, the petitioner attended the third scheduled IME with Dr. Reff. He told the doctor he was being targeted at work and described the medication and treatment he was receiving for anxiety and depression. On cross-examination, he admitted he did not tell Dr. Reff about his ten-day vacation in Spain. Instead, he told Dr. Reff that he did not bathe regularly, he avoided going out and driving because he was being followed and watched, he did not regularly read or watch TV, and he had little motivation to do anything. Dr. Reff agreed with the treating physicians and their diagnosis. His report stated the plaintiff suffered from major depression and the condition was related to his shoulder injuries and treatment by ComEd. ComEd began paying TTD.

The petitioner learned that in July 22, 2004, he would have a second IME with Dr. Reff. At the appointment, he told Dr. Reff he had been playing baseball, going to the gym, and trying to feel better. He admitted that before this exam he learned Dr. Reff had reviewed his personnel records and numerous surveillance videos taken during his disability leave. These showed him on an elliptical machine reading a paper, jogging, playing baseball, and engaging in other activities. Dr. Reff concluded the plaintiff purposely misrepresented his condition and fabricated his psychiatric symptoms during the original IME.

On July 26, 2004, the petitioner returned to work, stating his psychiatrist and psychologist both advised he remain off work but he was afraid of losing his job. On July 30, 2004, he was called into a meeting with Mr. Garcia from HR, Ms. Stevens from OHS, and his union representative. He was asked why he was unable to work. It was his understanding the meeting was about his medical condition. He requested his attorney be present and refused to answer any questions without his attorney. Mr. Cameron walked in and took his badge and escorted him to the parking lot.

On September 21, 2004, the petitioner received a letter from ComEd terminating his employment. It stated he misrepresented his condition during a medical leave and based on this and his total work record, including but not limited to his work performance prior to taking the leave, ComEd had determined to terminate his employment.

Cross-examination established the petitioner had a sleeping bag and pillow in his truck and that he napped during lunch breaks. He admitted early on he was written up for sleeping in the lounge of a ladies’ room and on several later occasions for sleeping in his truck. On August 18, 2003, he filled out a medical exam report required for the annual renewal of his commercial driver’s license. In the rubric asking whether he suffered from any nervous or psychiatric disorders, he checked the “no” box. In 1984, he forged a physician’s note to his supervisor to justify a day off work. He did this again in 1988 and was nearly discharged. He also acknowledged that on at least one more occasion prior to 2003 he was informed his total record was unacceptable and future incidents could result in termination of employment.

Witnesses testified on behalf of the plaintiff to support his claim that he was productive and that he was being singled out by ComEd. ComEd’s witnesses testified to the findings on the surveillance showing the plaintiff being idle in his truck, sleeping in the truck, and misrepresenting his condition and that he was terminated based on his total work history with ComEd, not telling the truth, insubordination, and lack of productivity.

In ruling in favor of ComEd, the trial court found the plaintiff failed to meet his burden in establishing that his discharge was causally related to the exercise of any right under the Workers’ Compensation Act. The court found significant credibility issues throughout the case on the part of the plaintiff. The court held the record clearly established the employer had a valid, non-pretextual basis for discharging the plaintiff and that the reasons for discharge were “wholly unrelated to the employee’s claim for benefits under the Act” and referred to the employment termination letter. 2019 IL App (1st) 180907 at ¶130.

On appeal, the plaintiff argued the trial court improperly found that as long as ComEd had a legitimate nonretaliatory reason to terminate him, even if ComEd also terminated him in retaliation for his filing a workers’ compensation claim, ComEd could still prevail because the illegal retaliatory reason was one proximate cause, if not the proximate cause of the discharge. The court disagreed. To establish a cause of action for workers’ compensation retaliatory discharge, an employee must establish by a preponderance of the evidence that (1) he or she was an employee before the injury, (2) he or she exercised a right granted by the Workers’ Compensation Act, and (3) the discharge was causally related to the exercise of the rights under the Act. Siekierka v. United Steel Deck, Inc., 373 Ill.App.3d 214, 868 N.E.2d 374, 380, 311 Ill.Dec. 374 (3d Dist. 2007).

The court noted that with respect to causation, the element at issue on appeal, Illinois does not use the burden-shifting framework stated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). 2019 IL App (1st) 180907 at ¶136. In Illinois, the plaintiff bears the burden of establishing causation. An employer is not required to come forward with an explanation for the employee’s discharge, and even if it does, the mere existence of a valid or sufficient reason does not automatically defeat a retaliatory discharge claim. Id., citing Michael v. Precision Alliance Group, LLC, 2014 IL 117376, 21 N.E.3d 1183, 387 Ill.Dec. 12. If the employer chooses to come forward with “a valid, non-pretextual basis for discharging its employees and the trier of fact believes it, the causation element required to be proven is not met.” [Emphasis added by Matros court.] Matros, 2019 IL App (1st) 180907 at ¶173, quoting Michael, 2014 IL 117376 at ¶32. The Matros court noted the Supreme Court has “rejected the position that a plaintiff can succeed in establishing causation by showing that retaliation was one of several motives leading to the employee’s discharge and therefore ‘a’ proximate cause of that discharge.” [Emphasis in original.] 2019 IL App (1st) 180907 at ¶138, quoting Michael, 2014 IL 117376 at ¶32.

The court then turned its analysis to whether the judgment of the trial court was against the manifest weight of the evidence and found it was not. The trial court found the reasons for discharge stated by ComEd, namely, that the plaintiff was terminated because of (1) his misrepresentations about his condition during medical leave and (2) his “total work” record, were valid and supported by the evidence. The court explicitly stated the plaintiff was terminated for these reasons and not for any retaliatory motive.

Based on the record, the appellate court found the trial court properly considered the precise standard for causation set forth in Michael and properly found ComEd’s two offered non-pretextual reasons, which it found credible and supported by the evidence, equated to the plaintiff having failed to establish the element of causation.

The court also rejected the argument that a trial court may never rely on evidence of an employee’s disputed work-related medical condition as an acceptable and valid non-pretextual reason for discharge. Three decisions were reviewed on this issue. In Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694, 697 N.E.2d 743, 232 Ill.Dec. 1 (5th Dist. 1988), the plaintiff was fired for fraudulent misrepresentation and conduct in connection with her workers’ compensation claims. In Hollowell v. Wilder Corporation of Delaware, 318 Ill.App.3d 984, 743 N.E.2d 707, 252 Ill.Dec. 839 (5th Dist. 2001), the court held an employer may not unilaterally rely on one physician’s favorable diagnosis and ignore another physician’s unfavorable one. In Grabs v. Safeway, 395 Ill.App.3d 286, 917 N.E.2d 122, 334 Ill.Dec. 525 (1st Dist. 2009), the court held that an employer may not rely solely on an IME in terminating an employee for failing to call in absences. The court held it would be improper for an employer to take an employment action (recording the plaintiffs’ attendance status) based solely on a medical report that was disputed by other physicians. None of these decisions prevent a trial court from considering an employee’s disputed medical condition as evidence of a valid non-pretextual reason for discharge. They distinguish between outright lies made by an employee relating to a workers’ compensation claim and a dispute over the nature and extent of a compensable injury. In Matros, the trial court found the plaintiff engaged in lies about his medical condition and made misrepresentations to his employer about his physical infirmness, so that his discharge was not premised on a dispute about the nature and extent of his compensable injury but rather on his lack of integrity.

The court also determined the trial court’s finding that the plaintiff was terminated based on his total work record was not against the manifest weight of the evidence.

For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) — 2015 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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