                                Illinois Official Reports

                                        Appellate Court



                       Dale v. South Central Illinois Mass Transit District,
                                   2014 IL App (5th) 130361



Appellate Court           RICHARD WILLIAM DALE, Plaintiff-Appellant, v. SOUTH
Caption                   CENTRAL ILLINOIS MASS TRANSIT DISTRICT, a Municipal
                          Corporation, Defendant-Appellee.



District & No.            Fifth District
                          Docket No. 5-13-0361


Filed                     August 26, 2014



Held                       In an action alleging that plaintiff bus driver was entitled to lost wages
(Note: This syllabus on the ground that he was terminated by defendant in retaliation for
constitutes no part of the exercising his rights under the Workers’ Compensation Act, the
opinion of the court but appellate court answered two questions certified by the trial court
has been prepared by the under Supreme Court Rule 308 by stating that the claim for lost wages
Reporter of Decisions made by an employee injured on the job and unable to return to work
for the convenience of due to a workers’ compensation carrier’s delay in approving medical
the reader.)               treatment falls within the exclusivity provisions of the Act and not a
                           retaliatory discharge action, and an employer of such a person is not
                           liable for lost wages in a retaliatory discharge action; rather, those
                           damages also fall within the exclusivity provisions.



Decision Under            Appeal from the Circuit Court of Perry County, No. 10-L-28; the Hon.
Review                    Eugene E. Gross, Judge, presiding.



Judgment                  Certified questions answered; cause remanded.
     Counsel on                Darrell Dunham, of Darrell Dunham & Associates, of Carbondale,
     Appeal                    and Timothy Daniels, of 51 Place Law Offices, of Elkville, for
                               appellant.

                               Richard B. Korn, of Fox Galvin, LLC, of St. Louis, Missouri, for
                               appellee.



     Panel                     JUSTICE STEWART delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Welch and Justice Goldenhersh concurred in the
                               judgment and opinion.




                                                OPINION

¶1          The plaintiff brings this interlocutory appeal pursuant to Illinois Supreme Court Rule 308
       (eff. Feb. 26, 2010). The plaintiff, Richard William Dale, worked as a bus driver for the
       defendant, South Central Illinois Mass Transit District (South Central). Dale filed a complaint
       against South Central alleging that it fired him in retaliation for exercising his rights under the
       Illinois Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2010)). The
       circuit court granted South Central a motion for summary judgment, in part, on Dale’s claim
       for lost wages. The court then certified two questions of law on which it found that there were
       substantial grounds for a difference of opinion and that the answers to the questions might
       materially advance the termination of the litigation. The certified questions are as follows:
                     “I. Whether an employee who was injured on the job and who is unable to return to
                work as a result of a workers’ compensation carrier’s delay in approving medical
                treatment can recover lost wages in a subsequently filed retaliatory discharge claim or
                whether damages for such lost wages fall within the exclusivity provision of the Illinois
                Workers’ Compensation Act.
                     II. Whether an employer who terminates an employee who is physically unable to
                perform the functions of his job after sustaining an on-the-job injury is liable for lost
                wages in a subsequently filed retaliatory discharge action when the employee’s
                physical inability to perform the functions of his job was caused by the employer’s
                worker’s compensation carrier’s delay in approving medical treatment for the
                on-the-job injury or whether such damages fall within the exclusivity provision of the
                Illinois Workers’ Compensation Act.”
¶2          We granted Dale’s request for an interlocutory appeal for this court to address the circuit
       court’s certified questions of law. We begin our discussion of the certified questions with a
       brief outline of the procedural history leading up to the circuit court’s certified questions.



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¶3                                         BACKGROUND
¶4       Dale injured his left shoulder in a work-related accident on July 31, 2009. Following the
     accident, he saw Dr. Angela Freehill, who recommended that he undergo surgery for the
     injuries to his left shoulder. According to Dr. Freehill, Dale elected not to have surgery but to
     proceed with nonsurgical management. Dale, however, maintains that the recommended
     surgery was delayed because South Central improperly disputed his claim of having a
     work-related injury.
¶5       Dale has been unable to work since the accident. South Central granted Dale a 12-week
     leave of absence under the Family and Medical Leave Act (29 U.S.C. § 2601 et seq. (2006)).
     When Dale’s 12-week leave of absence expired, South Central terminated his employment on
     March 4, 2010, because he was medically unable to return to work.
¶6       On October 9, 2009, Dale filed a workers’ compensation claim, and on September 11,
     2012, he and South Central entered into a settlement agreement, settling Dale’s claims under
     the Act. The terms of the settlement included temporary total disability benefits for 1436/7
     weeks at the average weekly wage of $245.33, as well as compensation for future medical
     expenses related to the injury. The total amount of the settlement was a lump-sum payment of
     $54,348 as a full and final settlement of the claims resulting from the work-related accident.
¶7       Prior to settling his workers’ compensation claim, on November 19, 2010, Dale filed the
     complaint against South Central alleging a claim for retaliatory discharge. Dale alleged that
     South Central terminated his employment as a bus driver on March 4, 2010, as a result of his
     exercising his rights under the Act. After settling Dale’s workers’ compensation claim, South
     Central filed a motion for a partial summary judgment in the retaliatory discharge case with
     respect to Dale’s request for damages for lost wages. South Central maintained that Dale was
     unable to perform his job duties; accordingly, his lost wages were caused by his inability to
     work, not caused by the alleged wrongful discharge. South Central further argued that the Act
     provides the exclusive remedy for damages for lost wages caused by a workplace accident. In
     addition, South Central argued that Dale’s claim for lost wages was barred under the
     res judicata doctrine due to his settlement of the workers’ compensation claim.
¶8       On June 4, 2013, the circuit court entered an order granting South Central’s request for a
     partial summary judgment. The court noted in its order that when South Central discharged
     Dale, he was unable to work and he had not submitted any evidence to contradict South
     Central’s position that his lost wages were attributable solely to his infirmity resulting from his
     work-related accident. The court found that there was “no genuine issue of material fact
     concerning the availability of damages for lost wages in that by plaintiff’s own testimony, he
     remains unable to return to work and his condition (and lost wages) are a result of his injury on
     July 31, 2009, and not his discharge by defendant.” The court further added that even “if
     plaintiff established that his condition deteriorated by delay, that damage was related to the
     injury, not the discharge.” The court granted South Central’s request for a summary judgment
     with respect to Dale’s claim for lost wages “because plaintiff cannot establish any causal
     connection between his retaliatory discharge and lost wages.”
¶9       On July 16, 2013, the circuit court granted Dale’s request to certify the two questions of
     law quoted above, and we granted Dale’s application for this interlocutory appeal to answer the
     certified questions.



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¶ 10                                             ANALYSIS
¶ 11        Questions certified under Rule 308 raise issues of law, and our review is de novo. Fox v.
       Gauto, 2013 IL App (5th) 110327, ¶ 13, 995 N.E.2d 1026.
¶ 12        Both of the certified questions concern whether the Act’s exclusivity provisions bar an
       injured employee from recovering damages for lost wages in a retaliatory discharge lawsuit
       when the employee is injured in a work-related accident and is unable to work as a result of the
       workers’ compensation carrier’s delay in approving medical treatment. In answering both
       certified questions, we hold that the employee’s damages for lost wages fall within the
       exclusivity provisions of the Act.
¶ 13        The Act “was enacted to abrogate the system of common law rights and liabilities which
       previously governed an injured employee’s ability to recover against his employer.” Ocasek v.
       Krass, 153 Ill. App. 3d 215, 217, 505 N.E.2d 1258, 1259 (1987). The policy underlying the Act
       was “to provide certainty of remedy gained in return for limiting the liability of the employer.”
       Id. In order to achieve the Act’s policy, the Act’s remedies “serve as the employee’s exclusive
       remedy if he sustains a compensable injury.” (Internal quotation marks omitted.) Id.
¶ 14        Section 5(a) of the Act provides, in pertinent part, as follows: “No common law or statutory
       right to recover damages from the employer *** for injury or death sustained by any employee
       while engaged in the line of his duty as such employee, other than the compensation herein
       provided, is available to any employee who is covered by the provisions of this Act ***.” 820
       ILCS 305/5(a) (West 2010).
¶ 15        Section 11 of the Act provides as follows: “The compensation herein provided, together
       with the provisions of this Act, shall be the measure of the responsibility of any employer
       [automatically covered by the Act or] who has elected to provide and pay compensation for
       accidental injuries sustained by any employee arising out of and in the course of the
       employment according to the provisions of this Act ***.” 820 ILCS 305/11 (West 2010).
¶ 16        “Essentially, these sections of the Act require ‘exclusive resort’ to the worker’s
       compensation remedy for injuries arising out of the course of employment.” Garland v.
       Morgan Stanley & Co., 2013 IL App (1st) 112121, ¶ 24, 996 N.E.2d 188.
¶ 17        When an employee brings an action against his employer for damages stemming from
       injuries he sustained in an employment setting, the exclusivity provisions of the Act bar the
       action unless the employee can prove that the injury (1) was not accidental, (2) did not arise
       from his or her employment, (3) was not received during the course of employment, or (4) is
       noncompensable under the Act. Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237, 408
       N.E.2d 198, 202 (1980). In the present case, the plaintiff does not articulate which of the four
       exceptions a claim for lost wages would fall under when the employee is injured on the job and
       “is unable to return to work as a result of a workers’ compensation carrier’s delay in approving
       medical treatment.”
¶ 18        The questions of law certified by the circuit court are premised on a factual finding that the
       hypothetical employee was “injured on the job” or sustained “an on-the-job injury.” Therefore,
       by their very terms, the questions address damages for lost wages that are causally connected
       to a workplace injury. Exceptions two and three noted above, therefore, do not apply under the
       express language of the certified questions.
¶ 19        The first exception, i.e., “not accidental,” also does not apply because there is nothing
       within the certified questions to establish that the employer specifically intended that its


                                                    -4-
       actions would injure the employee. Garland v. Morgan Stanley & Co., 2013 IL App (1st)
       112121, ¶ 29, 996 N.E.2d 188 (“In the context of the Act, to show that an injury is not
       accidental, the employee must establish that his employer *** acted deliberately and with
       specific intent to injure the employee.”).
¶ 20       In Bercaw v. Domino’s Pizza, Inc., 258 Ill. App. 3d 211, 212, 630 N.E.2d 166, 167 (1994),
       a delivery driver was killed by assailants, and his survivors brought an action against his
       employer, alleging that it knew with substantial certainty that the delivery person would be
       attacked. In addressing the exclusive remedy provision of the Act, the court noted that the issue
       was whether the delivery driver’s death was “accidental” when the employer sent the untrained
       driver to deliver an order placed on a pay phone. Id. at 214, 630 N.E.2d at 168.
¶ 21       In evaluating whether the injury was the result of an intentional act rather than an accident
       for purposes of applying the exclusivity provisions of the Act, the court held that it was not
       enough for the plaintiff to show that there was a “substantial certainty” that the employer’s
       actions would result in injuries to employees. Instead, the employee must show that the
       employer specifically intended that its actions would injure the employee. Id. at 215, 630
       N.E.2d at 169. The court reasoned that the “specific intent to injure” standard provided courts
       with a bright-line test which would discourage “Act-related civil litigation, thus advancing one
       of the Act’s purposes: that of providing a broad scheme of recompense for on-the-job injuries.”
       Id. The court stated that, in order to escape the Act’s exclusive remedy bar, it was not enough
       for a plaintiff to show that the employer had knowledge that an injury was substantially likely
       to occur from an employer’s actions. Id. at 217-18, 630 N.E.2d at 171 (citing Russell v. PPG
       Industries, Inc., 953 F.2d 326, 333 (7th Cir. 1992)). “[F]or an employee seeking to bypass the
       exclusive remedy of the Act, the employee must show that the employer specifically intended
       to injure the plaintiff.” Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121, ¶ 30, 996
       N.E.2d 188.
¶ 22       The questions of law certified by the circuit court do not include a finding that the
       employer acted with the specific intent to injure the employee when the employee suffered the
       work-related injury. Accordingly, the “not accidental” exception to the exclusivity provisions
       of the Act does not apply.
¶ 23       Finally, considering the fourth exception, lost wages that are causally connected to a
       work-related injury are certainly recoverable under the Act. As South Central correctly points
       out in its brief, the statutory scheme of the Act provides injured workers with wage benefits
       when they are unable to work due to an injury that is causally related to a workplace accident,
       including temporary total disability benefits and permanent total disability benefits. 820 ILCS
       305/8 (West 2010). The Act provides the “exclusive remedy” for an injured employee seeking
       to recover damages from an employer that are causally related to an on-the-job injury. Keating
       v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 464, 936 N.E.2d 1050, 1058 (2010). The
       certified questions are premised on an injury and a resulting inability to work that are causally
       connected to a work-related accident.
¶ 24       There are no factual findings encompassed within the certified questions that break the
       causal connection between the employee’s inability to work and the on-the-job accident.
       Accordingly, under the four-part test outlined in Collier for applying the exclusivity provisions
       of the Act, the employee’s claim for lost wages must be recovered under the Act, not in a civil
       lawsuit for retaliatory discharge.


                                                   -5-
¶ 25        In his brief, Dale argues that the employer “should not be able to resist medical treatment
       for Employee and then be permitted to fire him because he was not able to work.” He argues
       that the exclusivity provision should not apply when an employee is terminated due to an
       inability to work and his inability to work is the result of the employer’s delay in approving
       medical treatment following a workplace injury. This argument does not establish a legal basis
       for circumventing the Act’s exclusive remedy provisions.
¶ 26        An employer’s delay in approving medical treatment following a workplace accident, even
       if the delay results in the injured employee being unable to work, does not break the causal
       connection between the injury and the workplace accident. To establish causation under the
       Act, an employee must prove that some act or phase of his employment was a causative factor
       in his ensuing injury. Land & Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 592, 834
       N.E.2d 583, 592 (2005). “Every natural consequence that flows from an injury that arose out of
       and in the course of one’s employment is compensable under the Act absent the occurrence of
       an independent intervening accident that breaks the chain of causation between the
       work-related injury and an ensuing disability or injury.” National Freight Industries v. Illinois
       Workers’ Compensation Comm’n, 2013 IL App (5th) 120043WC, ¶ 26, 993 N.E.2d 473.
¶ 27        In the present case, if the hypothetical employee within the certified questions had not
       sustained the work-related injury, he would not have required the medical treatment that the
       hypothetical employer delayed in approving. Accordingly, even if the employee’s inability to
       work can be directly attributable to the employer’s delay in approving medical treatment, the
       injury is still causally connected to a workplace accident because the initial injury was caused
       by a work-related accident and no intervening event has broken the chain of causation. Any
       additional damages, including lost wages, suffered by the employee as a result of the
       employer’s delay in approving medical treatment are recoverable under the Act; accordingly,
       recovery of such damages is limited to the exclusive remedies under the Act.
¶ 28        Allowing an employee to maintain a civil action for lost wages under the facts
       encompassed within the certified questions would improperly frustrate the purpose of the
       Act’s statutory scheme, which is to provide a system of imposing liability on employers
       without fault for accidental work-related injuries and, in return, prohibiting common law suits
       by employees against the employer. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462,
       564 N.E.2d 1222, 1225 (1990). “The exclusive remedy provision ‘is part of the quid pro quo in
       which the sacrifices and gains of employees and employers are to some extent put in balance,
       for, while the employer assumes a new liability without fault, he is relieved of the prospect of
       large damage verdicts.’ ” Id. (quoting 2A Arthur Larson, Law of Workmen’s Compensation
       § 65.11 (1988)).
¶ 29        Dale argues that Siekierka v. United Steel Deck, Inc., 373 Ill. App. 3d 214, 868 N.E.2d 374
       (2007), supports his argument that he can recover lost wages in a retaliatory discharge action
       and that the certified questions should be answered accordingly. We disagree; Siekierka does
       not establish a basis for overcoming the exclusivity provisions in the Act under the facts on
       which the certified questions are premised.
¶ 30        In Siekierka, the plaintiff brought a retaliatory discharge claim against his employer,
       arguing that he was terminated from his employment without just cause and that the employer
       was motivated in part because he had pursued his rights and remedies under the Act. Id. at 215,
       868 N.E.2d at 375. The trial court granted the employer a summary judgment, and the plaintiff
       appealed. Id. at 220, 868 N.E.2d at 379. On appeal, the court reversed, holding that there was a

                                                   -6-
       genuine issue of material fact concerning whether there was a causal connection between the
       employee’s discharge and his exercise of rights under the Act. Id. at 223, 868 N.E.2d at 382.
¶ 31       The court held that although the employer provided a valid nonpretexual basis for
       terminating the plaintiff, the evidence also supported an inference that the employer’s insurer
       made it impossible for the plaintiff to return to work within the time granted by the employer
       because the insurer refused to accommodate surgery and forced the plaintiff to seek a second
       opinion. Id. at 222-23, 868 N.E.2d at 381-82. The insurer’s doctor adopted a “wait and see”
       approach before approving surgery, and the extra four weeks of waiting for the surgery
       resulted in the employee not working beyond the duration of his authorized leave. The
       employer then terminated the employee for failing to return to work. Id. The court held that the
       employer’s actions served to delay the employee’s surgery, which forced the employee to have
       to choose between “pursuing his worker’s compensation right to have the surgery or
       attempting to return to work without it.” Id. at 223, 868 N.E.2d at 381. The court held that there
       was a material issue of fact “as to whether there exists a causal nexus between [the employee’s]
       discharge and the exercise of his rights under the Act.” Id. at 223, 868 N.E.2d at 382.
¶ 32       The questions certified by the circuit court present a different legal issue than the legal
       issue addressed by the court in Siekierka. Unlike Siekierka, the certified questions in the
       present case do not ask us to determine whether a hypothetical employee’s discharge was
       causally related to the exercise of his rights under the Act. Instead, the certified questions
       present a legal issue concerning the injured employee’s ability to recover a certain type of
       damages in a civil action under a specific set of circumstances, i.e., whether the exclusivity
       provisions of the Act require the employee to pursue his claim for lost wages in a workers’
       compensation proceeding when a work-related injury prevents the employee from working.
       The issue before the court in Siekierka did not concern the Act’s exclusivity provisions.
¶ 33       Of course, an action for retaliatory discharge is not completely barred by the exclusivity
       provisions of the Act. Fredericks v. Liberty Mutual Insurance Co., 255 Ill. App. 3d 1029,
       1032, 627 N.E.2d 782, 785 (1994). A plaintiff in a retaliatory discharge action is entitled to
       recover those damages supported by the evidence and the law, as in other tort actions. Clark v.
       Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 701, 697 N.E.2d 743, 748
       (1998). However, “any diminution in a plaintiff’s earnings directly related to that plaintiff’s
       injury, but not connected to the employer’s tortious discharge, is not properly included in a
       retaliatory discharge award.” Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 559, 589 N.E.2d
       909, 922 (1992). “Lost wages attributable solely to one’s infirmity do not naturally flow from
       the commission of retaliatory discharge.” Id. at 560, 589 N.E.2d at 922.
¶ 34       The certified questions in the present case include factual findings that a hypothetical
       employee was injured in an on-the-job accident and that his inability to work is a result of a
       delay by the employer in authorizing medical treatment for the work-related injuries. The
       certified questions presume that the employee is totally incapacitated from all employment,
       and the sole cause of this incapacity is the infirmity resulting from his work-related injury. If
       the employee were capable of some form of employment, and could prove that the retaliatory
       discharge was a cause of his inability to return to his previous employment or find alternative
       employment, then he could recover the lost wages attributable to the discharge. However,
       under these facts, as a matter of law, the employee’s lost wages are causally connected to the
       workplace accident, not his discharge, and the Act provides the exclusive remedy for the
       employee to recover the lost wages.

                                                   -7-
¶ 35      Accordingly, the answer to both certified questions is that the employee’s claim for lost
       wages falls within the exclusivity provisions of the Illinois Workers’ Compensation Act.

¶ 36                                         CONCLUSION
¶ 37      The certified questions of the circuit court of Perry County are hereby answered. We
       remand this matter to the circuit court for further proceedings.

¶ 38      Certified questions answered; cause remanded.




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