MICHAEL PAZ, Plaintiff-Appellant, v. COMMONWEALTH EDISON, Defendant-Appellee.
Second District No. 2-99-0028
Second District
June 27, 2000
July 27, 2000
314 Ill. App. 3d 591
For all of the aforementioned reasons, the judgment of the circuit court of Cook County is reversed.
Reversed.
BUCKLEY and O‘BRIEN, JJ., concur.
Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
John W. Bell, Michael P. Siavelis, and Mindy Kallus, all of Johnson & Bell, Ltd., of Chicago, for appellee.
JUSTICE MCLAREN delivered the opinion of the court:
Plaintiff, Michael Paz, appeals from the jury‘s verdict in favor of defendant, Commonwealth Edison Company (ComEd). We affirm.
Plaintiff was an employee of ComEd when he was injured on the job. On August 16, 1989, a large piece of metal fell from an overhead crane and landed on the grate upon which plaintiff was standing. Plaintiff was thrown against a railing and struck on the knees by the piece of metal. During the next two years, plaintiff on occasion returned to work part-time and performed light-duty tasks. Plaintiff was paid in excess of $51,000 in workers’ compensation benefits during the period of his disability, and medical bills of almost $25,000 were also paid. Eventually, plaintiff and ComEd settled on total workers’ compensation benefits of $115,000, which was approved by the Industrial Commission. Plaintiff was examined by several doctors during this period, including his personal physician and a doctor employed by ComEd. Plaintiff‘s ability to work was often disputed by these doctors. Eventually, on the morning of November 7, 1991, plaintiff was examined by Dr. Fitzpatrick, who was employed by ComEd. The parties dispute whether Fitzpatrick at that time released plaintiff to work full-time. Plaintiff did not report to work on November 7, and he was terminated that day.
Plaintiff filed suit, alleging retaliatory discharge, and his second amended complaint proceeded to a jury trial after the court denied motions for summary judgment and judgment on the pleadings. The
Plaintiff first contends that he was entitled to summary judgment on the issue of liability. However, an order denying a motion for summary judgment is not reviewable after an evidentiary trial, as any error in the denial is merged in the subsequent trial. Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 664 (1994). Therefore, we will address this contention in the context of whether the jury‘s verdict was against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence only where conclusions opposite those reached by the jury are clearly evident, plain, and undisputable. Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 880 (1996).
The general rule in Illinois is that an at-will employee may be discharged by the employer at any time and for any reason. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 17-18 (1998). (Although plaintiff herein was a union member, the union contract was not involved in this case and the plaintiff was an at-will employee for all relevant purposes in this litigation.) However, our supreme court recognized a limited exception to this rule in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), when it determined that a plaintiff who was terminated for pursuing workers’ compensation benefits could bring an action for retaliatory discharge against the former employer. See Buckner, 182 Ill. 2d at 18. The supreme court has deflected many attempts to expand this tort and has maintained retaliatory discharge as a limited and narrow exception to the general rule of at-will discharges. See Buckner, 182 Ill. 2d at 18-20. To state a cause of action for retaliatory discharge, a claimant must allege 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 Workers’ Compensation Act (Act) (
Here, there is no question that plaintiff was employed by ComEd at the time of the injury or that plaintiff exercised his right to benefits under the Act. However, the jury concluded that plaintiff‘s
Plaintiff cites Clark as controlling. In that case, Clark injured her back on March 3, 1991, and began receiving temporary total disability payments on March 13. After initially agreeing with Clark‘s family physician‘s course of treatment, the employer, Owens-Brockway, “suspected that Clark was malingering.” Clark, 297 Ill. App. 3d at 696. On May 23, 1992, Clark was videotaped mowing her lawn. She was suspended on June 1 and was fired, after a hearing, on June 3. In Clark‘s suit for retaliatory discharge, the trial court granted summary judgment in Clark‘s favor on the issue of liability. The appellate court affirmed, concluding that summary judgment in Clark‘s favor “was proper because her discharge was directly and proximately related to her claim for benefits.” Clark, 297 Ill. App. 3d at 698. The court stated that “[a]n employer may discharge an injured employee who has filed a workers’ compensation claim as long as the reason for the discharge is wholly unrelated to the employee‘s claim for benefits under the Workers’ Compensation Act.” Clark, 297 Ill. App. 3d at 698. However, “[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 court found as undisputed the fact that Clark was discharged because Owens-Brockway believed that her claim for benefits was exaggerated. Clark, 297 Ill. App. 3d at 698.
The dissent also relies on Clark, arguing that, because “a dispute over whether plaintiff could work eight-hour days existed,” ComEd discharged plaintiff on the basis of that dispute. 314 Ill. App. 3d at 607. However, we find Clark distinguishable. Clark involved the review of a grant of summary judgment in an uncontested factual scenario; the cause did not go to verdict. The Clark court found that the evidence that Clark‘s discharge was directly related to her claim for benefits was “undisputed.” In the case before us, the evidence was disputed. ComEd has presented evidence that plaintiff was fired for not returning to work after he had been released to work full-time
Effectively, the dissent takes a dispute as to a fact, causality, cites the undisputed fact that the workers’ compensation claim was pending, and determines that, as a matter of law, causality has been proved. Under the logic of the dissent, an employer could not even raise facts alleging termination for any other reason. If a dispute regarding the nature and extent of the plaintiff‘s injury exists, an employer could not present evidence that the plaintiff was terminated for sexually harassing another employee or stealing inventory, since, according to the dissent, the dispute over the nature and extent of the injury would be, as a matter of law, the cause of the termination. Many facts may exist that would tend to prove several different motives for termination. Because motive is a question of fact, not law, summary judgment is generally inappropriate in retaliatory discharge cases even if it were capable of review. See Austin v. St. Joseph Hospital, 187 Ill. App. 3d 891, 897 (1989). The dispute over plaintiff‘s ability to return to full-time employment, in this case, is just one fact to be considered by the fact finder. Whether plaintiff‘s discharge was retaliation for exercising his rights under the Act or whether the discharge was ComEd‘s lawful termination of an employee unable to fulfill his duties is a question of fact to be decided after viewing all the evidence. The jury found in favor of ComEd, and we believe the decision was not against the manifest weight of the evidence.
The dissent‘s view, if adopted, would remove “retaliatory” from “retaliatory discharge” and would, in essence, reverse Hartlein. Under the dissent‘s logic, an employer would be better off never discussing an injured employee‘s medical situation and immediately giving the employee an ultimatum of “Return to work or we will need to hire a replacement to do your job.” Hartlein, decided by our supreme court, does not place employers and employees in such a predicament. An
The dissent attempts to distinguish Hartlein by arguing that it was undisputed that the plaintiff in Hartlein was medically unable to ever return to his former position in the company, while plaintiff‘s ability to return to work in this case was medically disputed. Drawing this distinction, the dissent then argues that ComEd “did not have the right to terminate plaintiff based on a determination that he was medically unable to return to work.” 314 Ill. App. 3d at 608. However, this is a distinction without a difference. Employers may act on the basis of their employee‘s disabilities. Hartlein, 151 Ill. 2d at 160. Hartlein cited with approval Slover v. Brown, 140 Ill. App. 3d 618 (1986), in which the appellate court found in favor of an employer that did not employ an injured employee who attempted to return to work after a 22-month injury recuperation. Excess absenteeism, even if caused by a compensable injury, may properly be the basis for firing an employee. Hartlein, 151 Ill. 2d at 160. Absenteeism does not imply that the injured employee will never be able to return to his current job; it means merely that the employee is absent from work currently. The supreme court did not say that the undisputed inability to return to work in the future can be the basis for termination. A plaintiff‘s inability to be at work and do his job, whether the reason for that inability is disputed or not, is a proper basis for termination.
The dissent argues that only the Industrial Commission (Commission) can determine whether a plaintiff is capable of returning to work; an employer must await such a determination before it can demand an employee‘s return to work and terminate the employee for failure to do so. However, the Commission‘s jurisdiction is limited to “[a]ll questions arising under this Act.” See
Furthermore, the dissent‘s reliance on the arbitration provided in section 19(p) of the Act (
We also fail to see the significance that the dissent places on the fact that ComEd and plaintiff dispute plaintiff‘s ability to return to work full-time. If both ComEd and plaintiff agreed that plaintiff was unable to do his job, presumably ComEd would be free to terminate plaintiff, as there would be no dispute as to the nature and extent of plaintiff‘s injury. Plaintiff here acknowledges that he is unable to perform the duties of his job. Whether ComEd agrees with him or not is not relevant. The dispute about his ability to perform should not be the focus; his actual inability to perform should be.
The dissent also raises the issue of vocational rehabilitation under the Act. 314 Ill. App. 3d at 608-09. However, plaintiff never raised this issue in the trial court, and it is not an appropriate ground for resolution or reversal.
Plaintiff argues that, under the Act, an injured employee has the right to select his own physician and that ComEd “obliterated” this right by compelling plaintiff to ignore the medical advice of his chosen doctor and instead submit to the decision of the company doctor. However, as we have already stated, an employer is not obligated to retain an at-will employee who is medically unable to return to his position, nor is an employer obligated to reassign such an employee to another position. See Hartlein, 151 Ill. 2d at 159. To accept plaintiff‘s argument would be to require all employers to accept an employee‘s excuse from his private physician without question and without recourse if the personal physician‘s diagnosis or treatment makes the employee unable to return to his position. An employer is not required to continue employing an injured employee; certainly, it is not required to accept his doctor‘s treatment plan indefinitely.
Plaintiff argues that an action for retaliatory discharge is not limited to a discharge for the act of filing a workers’ compensation claim but includes termination for exercising rights to medical care. Assuming, arguendo, this contention is true, our analysis and conclu-
Plaintiff next contends that the manifest weight of the evidence showed that he was terminated before he could return to work on November 7 and that the doctor‘s examination was simply a prearranged prelude to terminating him for asserting his workers’ compensation rights. Plaintiff testified that he was picked up at approximately 8:30 to 9 a.m. on the morning of November 7, 1991, by Langston Hughes and Ed Chapman and taken to an appointment with Dr. Fitzpatrick at the ComEd medical department. He was never told to return to work and, after eating lunch with Hughes and Chapman, was dropped off at his home, where the termination letter from ComEd awaited him. Hughes, a ComEd foreman, testified that he picked plaintiff up between 8 and 8:30 a.m. and drove him to the medical appointment. He never told plaintiff to return to work. After lunch, he dropped off plaintiff between 12 and 1 p.m. Chapman, a union representative, testified that he never heard anyone direct plaintiff to return to work that day. After lunching with plaintiff at about 11:30 a.m., Chapman returned to work at about 12:30 p.m. Dr. Fitzpatrick testified that he examined plaintiff on November 7 and that he communicated with ComEd his recommendation that plaintiff return to work. Fitzpatrick did not tell plaintiff that he must return to work that day, as someone else would have told plaintiff in another room. A copy of a return-to-work slip, recommending restricted duty on a full-time basis and time-stamped at 8:27 a.m. on November 7, was entered into evidence. Charles Schumann, manager of the ComEd Waukegan station, testified that he signed plaintiff‘s termination letter in the morning of November 7, after he was informed that plaintiff had been released to return to work and had not reported to the Waukegan station. The termination letter was delivered to plaintiff‘s house at 12:39 p.m.
It is the jury‘s function to weigh contradictory evidence, judge the credibility of the witnesses, and draw ultimate conclusions as to the
We do not conclude that the evidence in this case leads only to the conclusion opposite of that reached by the jury. Much of the testimony on both sides is vague as to the time that events took place. The credibility of the witnesses is of utmost importance here, as the parties argue over whether plaintiff was told to return to work. The only physical evidence on this point, the return-to-work slip, is time-stamped at 8:27 a.m., certainly early enough for plaintiff to have returned to work if he had received it. The evidence is contradictory and not so weighted in plaintiff‘s favor that this court should overturn the jury‘s verdict as against the manifest weight of the evidence. We, therefore, decline to do so.
Plaintiff next contends that ComEd violated the Act by compelling plaintiff to submit to multiple examinations by Dr. Fitzpatrick. However, plaintiff fails to inform us how examinations by the company medical staff constitute retaliatory discharge. An employee entitled to receive disability payments is required to submit himself for examination by a qualified doctor, at the employer‘s request and expense, to determine the nature and extent of the employee‘s injury and to ascertain the amount of compensation that may be due the employee from time to time for disability.
Plaintiff next contends that the court erred in failing to instruct the jury on punitive damages. First, plaintiff argues that the court
Plaintiff next contends that the court improperly instructed the jury by refusing to give certain of his instructions to the jury and giving certain of ComEd‘s instructions to the jury. The trial court has considerable discretion in determining the form in which jury instructions shall be given. Zimmer v. Melendez, 222 Ill. App. 3d 390, 393 (1991). A new trial will be granted for refusal to give a tendered instruction only where serious prejudice to a party‘s right to a fair trial is shown. Thompson v. Abbott Laboratories, 193 Ill. App. 3d 188, 200 (1990). On appeal, the standard for determining the adequacy of instructions is whether, taken as a whole and in series, the instructions fully, fairly, and comprehensively apprise the jury of the applicable legal principles. Thompson, 193 Ill. App. 3d at 200. Instructions should not overemphasize any particular matter and should not confuse or mislead the jury. Thompson, 193 Ill. App. 3d at 200. Pattern jury instructions are to be used unless the court determines that the instruction does not accurately state the law.
The court denied plaintiff‘s instruction No. 17, which, among other things, defined what plaintiff claims were some of his rights under the Act. Such definition, plaintiff argues, was lacking in the instructions that were given. However, plaintiff‘s No. 17 also included
Plaintiff‘s nonpattern instruction No. 18 attempted to partially list plaintiff‘s rights under the Act. The instruction stated:
“The Illinois Worker‘s [sic] Compensation Act grants rights and remedies to employees who have been injured on the job. Those rights and remedies include the following:
The right to file a worker‘s [sic] compensation claim with the Illinois Industrial Commission, an agency of the State of Illinois;
The right to choose his own physician and hospital services at the employer‘s expense;
The right to exercise the choice of physician without threat of discharge or discharge;
The right to reject any medical care or advice of a physician which the employee does not choose.”
However, this tendered instruction takes these rights out of context and does not accurately state the law. While injured employees may have those rights, among others, they do not have the right to eternal employment with the employer. As written, this proposed jury instruction implies that an employee may not be terminated if he decides to follow the advice of his own physician, even against the diagnosis of another physician. As we have seen, this simply is not the case. See Hartlein, 151 Ill. 2d at 159-60. Furthermore, the evidence did not show that plaintiff was denied his right to choose his own physician or to reject medical care offered by another doctor. This proposed instruction is inaccurate and is not based on the facts in evidence. The court did not err in refusing it.
Plaintiff‘s proposed instruction No. 19 dealt with the relationship between the workers’ compensation settlement and any possible damages the jury would award. However, as the jury found for ComEd and no damages were awarded, the court‘s refusal to give this instruction is moot.
The court refused to give plaintiff‘s proposed instruction No. 20, which quoted from the Act. Defendant‘s instruction No. 25, which was given, quoted the same language from the Act. We find no error here.
Plaintiff‘s proposed instruction No. 23, which was refused by the court, read as follows:
“An employer‘s power to terminate an employee at will should not prevail when that power is exercised to prevent the employee from asserting his statutory rights under the worker‘s [sic] Compensation Act. The legislature enacted the worker‘s [sic] compensation law as a comprehensive scheme to provide for ef-
ficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. When faced with such a dilemma, many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs and thus, in effect, would be left without a remedy either at common law or statutory. This result is contrary to the public policy as expressed in the Worker‘s [sic] Compensation Act.”
This is argumentative and reads like a closing argument. It was properly refused.
Plaintiff argues that defendant‘s instruction No. 25 was given in error. This instruction contained the phrase “the exercise of his or her rights or remedies granted to him or her by this act.” According to plaintiff, the court then failed to instruct the jury as to what the “rights and remedies” were, thereby confusing the jury. However, the “issues” instruction given to the jury stated that plaintiff “exercised his rights under the Illinois Workers’ Compensation Act by filing a workers’ compensation claim against defendant.” This instruction adequately stated which right was at issue in this case. Therefore, defendant‘s instruction No. 25 was not confusing and, therefore, not given in error.
Similarly, plaintiff next argues that defendant‘s instruction No. 27, which was given by the court, referred to “clear mandates of public policy” without ever telling the jury which mandates were at issue. However, a later instruction told the jury:
“It is unlawful for an employer to discharge an employee in retaliation for his filing a claim under the Workers’ Compensation Act. Such a discharge violates a clear mandate of public policy of the State of Illinois.”
Thus, the jury was informed as to what actions were violative of a clear mandate of public policy in this state, and the jury was properly instructed.
Plaintiff‘s instruction No. 16, which was refused by the court, stated that Dr. Fitzpatrick had “no lawful right or obligation to act as a treating physician for Michael Paz.” This proposed instruction is argumentative and contrary to the evidence, as no one claims that Fitzpatrick did act as plaintiff‘s treating physician. Therefore, the court did not abuse its discretion in refusing to give this proposed instruction.
Plaintiff finally contends that defendant was improperly allowed to present evidence that plaintiff was not injured at work and was not injured to the extent that he claimed. According to plaintiff,
For these reasons, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
BOWMAN, P.J., concurs.
JUSTICE COLWELL, 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 plaintiff‘s 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
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 plaintiff‘s 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
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, plaintiff‘s 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 “[r]ight 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) (
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 (
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 plaintiff‘s 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
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
ComEd also relies upon Hartlein, where our supreme court rejected the plaintiff‘s 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 plaintiff‘s work-related injury prevented him from ever returning to his former position within the company; in this case, by contrast, plaintiff‘s 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 fail-
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.