dissenting:
Even when viewed in the light most favorable to ComEd, the evidence unequivocally shows that ComEd discharged plaintiff over a dispute concerning the extent and duration of plaintiffs back injury. For that reason, I dissent from the majority opinion.
A review of the record reveals the following facts. Plaintiff sustained knee injuries from the work-related accident of August 16, 1989, and thereafter claimed to have experienced back pains. He filed a workers’ compensation claim on or about April 23, 1990.
At some point, plaintiff began receiving back treatment from two Wisconsin doctors: Dr. Sanford Larson, a neurologist; and Dr. Paul Sanford, a physiatrist. On February 7, 1991, ComEd’s physician, Dr. William Fitzpatrick, examined plaintiff and concluded that he was capable of working eight-hour days with some physical restrictions. Dr. Fitzpatrick wrote Dr. Larson a letter in February 1991 informing him of the February 7 examination, and Dr. Larson responded with a letter dated February 19, 1991. Dr. Larson wrote, “I think [plaintiff] could try to return to work on a part-time basis progressing to full-time.” Plaintiff thereby returned to ComEd on March 5, 1991, and worked four-hour days within his restrictions until June 17, 1991. In June 1991, Dr. Fitzpatrick and plaintiff’s supervisors agreed that claimant was capable of eight-hour, restricted-duty work. However, citing Dr. Larson’s recommendations, plaintiff refused to work eight-hour days.
On June 13, 1991, plaintiff met with John Hynes, ComEd’s human resources representative. Hynes’s notes from that meeting state that plaintiff “was told that if he does not work the full 8 hour restricted duty day on June 17, 1991, or does not bring in a [doctor’s] note for our Medical department to review, he will be sent home on suspension.” On June 17, claimant gave Hynes a letter from Dr. Larson dated May 14, 1991. In the letter, Dr. Larson reiterated that plaintiffs back condition limited him to a four-hour work day. Hynes forwarded the letter to Dr. Fitzpatrick, who disagreed with Dr. Larson’s assessment. Dr. Fitzpatrick informed Hynes on June 19, 1991, that plaintiff was capable of working eight-hour days.
At another meeting, held on June 21, 1991, Hynes informed plaintiff that (a) Dr. Fitzpatrick did not accept Dr. Larson’s four-hour work limit, (b) Dr. Fitzpatrick had released him for eight-hour workdays and (c) the only work ComEd had available for plaintiff was eight-hour-a-day restricted-duty work. Again citing Dr. Larson’s restrictions, plaintiff refused to work eight-hour days and consequently did not return to work for ComEd. Although it stopped paying plaintiff’s temporary total disability (TTD) benefits retroactive to June 17, 1991, ComEd did not fire plaintiff just yet.
On August 15, 1991, plaintiff went into Hynes’s office, and Hynes again informed him that ComEd had eight-hour-a-day work available within his restrictions. Plaintiff did not accept the work. Dr. Fitzpatrick then arranged for an outside orthopedic surgeon, Dr. James Milgrom, to examine plaintiff on August 27, 1991. Dr. Milgrom found no reason why plaintiff could not return to work full-time without restrictions. Meanwhile, plaintiff continued treating with Dr. Larson and Dr. Sanford in August and September 1991. Neither doctor released plaintiff for full-time work prior to November 7, 1991.
Plaintiff met with Dr. Fitzpatrick on October 24, 1991. Dr. Fitzpatrick showed him a copy of Dr. Milgrom’s report and said that plaintiff was fit to return to work eight hours a day. However, because plaintiff was suffering from the flu, Dr. Fitzpatrick had plaintiff return for an examination on October 28, 1991. Dr. Fitzpatrick examined plaintiff on October 28 and would have released him for work; however, since plaintiff still had the flu, Dr. Fitzpatrick scheduled a follow-up examination for November 7, 1991.
On the morning of November 7, 1991, Dr. Fitzpatrick examined plaintiff, determined that he was no longer ill, and filled out a return-to-work slip. On that slip, which was time-stamped 8:27 a.m., Dr. Fitzpatrick checked the “restricted duty” box and left unchecked the “part time duty_hrs per day” box. Dr. Fitzpatrick wrote on the slip, “start today,” and testified that he specifically told plaintiff that he was releasing plaintiff for eight-hour, restricted-duty work. If we view the evidence in ComEd’s favor, Dr. Fitzpatrick gave plaintiff the return-to-work slip and told him to return to work that day. Plaintiff did not return to work, though.
Following the examination, Dr. Fitzpatrick informed Hynes that he had released plaintiff for work. After learning that plaintiff had not reported to work that morning, Hynes assisted Charles Schumann, plaintiffs plant manager, in drafting a termination letter. That letter, signed by Schumann, read:
“You were released this day November 7, 1991 to return to work by the medical department of Commonwealth Edison Company. Due to your failure to report as directed, you have been removed from the payroll *** effective November 7, 1991.”
They then express-mailed the letter to plaintiff’s address, where plaintiff received it early that afternoon.
Plaintiff and ComEd settled the workers’ compensation claim on October 7, 1993. The settlement contract stated that plaintiff sustained injuries to his “Might knee and back” as a result of the August 16, 1989, accident.
Following trial, plaintiff sought a judgment against ComEd on the basis that ComEd committed a per se violation of the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). The circuit court denied that motion, which was essentially a motion for a directed verdict on the liability issue. Plaintiff raises the same issues in his appellate brief as he did in his motion for a directed verdict, and I believe the circuit court erred in denying that motion.
A motion for a directed verdict will not be granted unless “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Our review of a circuit court’s ruling on a motion for a directed verdict is de novo. Los Amigos Supermarket, Inc. v. Metropolitan Bank & Trust Co., 306 Ill. App. 3d 115, 130 (1999).
To recover for retaliatory discharge, a claimant must show that (1) he was an employee of the defendant before or at the time of the injury, (2) he exercised some right granted by the Act (820 ILCS 305/1 et seq. (West 1996)), and (3) his discharge was causally related to the exercise of rights under the Act. Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 697 (1998). Only the third element — ComEd’s motive in firing plaintiff — was at issue at trial. ComEd’s motive was a question of fact. Austin v. St. Joseph Hospital, 187 Ill. App. 3d 891, 897 (1989). The element of causality is not met if the employer has a valid basis, which is not pretextual, for discharging the employee. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992). A pretext is a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs. Marin v. American Meat Packing Co., 204 Ill. App. 3d 302, 307 (1990). An employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by a compensable injury (Hartlein, 151 Ill. 2d at 160), but “[a]n employer may not discharge an employee on the basis of a dispute about the extent or duration of a compensable injury” )(Clark, 297 Ill. App. 3d at 699).
The parties in this case do not dispute that, at the time ComEd discharged plaintiff, Dr. Larson believed plaintiff could work only four-hour days with restrictions and Dr. Fitzpatrick believed plaintiff could work eight-hour days with restrictions. Thus it was undisputed that there was a “dispute about the extent or duration” of plaintiffs back injury. See Clark, 297 Ill. App. 3d at 699. Also undisputed was the fact that ComEd would only allow plaintiff to return to work if he worked eight-hour days with restrictions.
Although ComEd’s defense at trial was that it discharged plaintiff for failing to return to work on November 7, underlying ComEd’s decision to fire plaintiff was its own determination that plaintiff was in fact capable of working eight-hour days. The problem with that determination, however, was that ComEd effectively substituted its own judgment for that of the Industrial Commission, the agency responsible for determining the nature and extent of work-related injuries. See 820 ILCS 305/18 (West 1996) (“[a]ll questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission”); Illinois Forge, Inc. v. Industrial Comm’n, 95 Ill. 2d 337, 343 (1983) (“[t]he drawing of factual inferences concerning the nature and extent of disabilities based on medical testimony is peculiarly in the province of the Industrial Commission’s expertise”). If ComEd wanted a decision on whether plaintiff was capable of working eight-hour days, it should have sought an arbitration hearing pursuant to the procedure set forth in section 19(p) of the Act (820 ILCS 305/19(p) (West 1996)). Nonetheless, ComEd failed to do so. Under the circumstances, because ComEd fired plaintiff while a dispute over whether plaintiff could work eight-hour days existed, the undisputed facts show that ComEd discharged plaintiff “on the basis of a dispute about the extent or duration of a compensable injury.” Clark, 297 Ill. App. 3d at 699. I reach that conclusion even viewing the evidence in the light most favorable to ComEd and under the assumption that plaintiff disobeyed an order to return to work. While an employer may withhold TTD benefits based on a reasonable interpretation of conflicting medical opinions during the pendency of a workers’ compensation claim (see Little Company of Mary Hospital v. Industrial Comm’n, 256 Ill. App. 3d 1036, 1040 (1993)), an employer should not have the right to unilaterally discharge an employee under the same circumstances.
ComEd relies upon two cases, Marin, 204 Ill. App. 3d 302, and Austin, 187 Ill. App. 3d 891, in support of its contention that it had the right to discharge plaintiff for failing to return to work. The court in both cases held that it was within the rights of the employers to discharge the plaintiffs, both of whom failed to report to work on time as directed. Marin, 204 Ill. App. 3d at 309; Austin, 187 Ill. App. 3d at 897. Although the plaintiffs in both cases claimed that their treating physicians had not yet released them to work prior to the directed dates of return, other evidence established that the treating physicians had in fact released them. Marin, 204 Ill. App. 3d at 305-06; Austin, 187 Ill. App. 3d at 894-95. The difference between those cases and this one is the fact that in Marin and Austin there was no medical disagreement surrounding the employers’ decision to fire the plaintiffs, whereas in this case there was. That distinction is significant, given that the responsibility of resolving disputes over the nature and extent of work-related injuries is for the Industrial Commission only. See 820 ILCS 305/18 (West 1996); Illinois Forge, 95 Ill. 2d at 344.
ComEd also relies upon Hartlein, where our supreme court rejected the plaintiffs claim of retaliatory discharge, stating that “Illinois law does not obligate an employer to retain an at-will employee who is medically unable to return to his assigned position.” Hartlein, 151 Ill. 2d at 159. Hartlein, however, is also distinguishable from the instant case. In Hartlein, it was undisputed that the plaintiffs work-related injury prevented him from ever returning to his former position within the company; in this case, by contrast, plaintiffs ability to return to work was disputed. Therefore, unlike the situation in Hartlein, the employer in this case did not have the right to terminate plaintiff based on a determination that he was medically unable to return to work. Given the conflicting medical evidence, that determination could only have been made by the Industrial Commission.
If the Industrial Commission determined that plaintiff was capable of returning to work, only then could ComEd demand that plaintiff return to work, and only then could ComEd terminate plaintiff for failing to do so. If, on the other hand, the Industrial Commission determined that plaintiff was incapable of returning to work, ComEd could terminate plaintiff, but not without offering him vocational rehabilitation. See 820 ILCS 305/8(a) (West 1996) (as a result of an accidental injury, “[t]he employer shall *** pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee”); Hartlein, 151 Ill. 2d at 165 (same). The record, however, contains no suggestion that ComEd ever offered plaintiff vocational rehabilitation. Thus, if ComEd fired plaintiff based on plaintiff’s physical inability to return to work, ComEd’s actions still constituted a violation of the Act.
Since ComEd improperly circumvented the Workers’ Compensation Act through the way in which it fired plaintiff, plaintiff was entitled to a directed verdict against ComEd on the liability issue. I therefore would reverse the judgment in favor of ComEd on the retaliatory discharge claim and remand the cause for a trial on damages only.