It makes sense that when an employee is injured on the job that the employer would want their physicians to examine the employee in addition to the employee’s physician. However, according to a recent ruling by the Illinois First District Appellate Court while the employer may continue to have the employee examined by their own doctors they are not allowed to rely exclusively on their physicians’ examinations when terminating an employee for not returning to work in a timely manner following an injury.
In Grabs, et al. v. Dominick’s Finer Foods, LLC, No. 1-08-3007, the plaintiff employee was injured while working at a Dominick’s in Cook County and filed an Illinois workers’ compensation claim. Initially Dominick’s approved the workers’ compensation claim and paid the employee’s medical bills and temporary total disability benefits. But when the employee’s physician continued to recommend that he remained off work Dominick’s retained its own medical exam of the employee. During this “independent” medical exam, the employer’s physician found that the employee’s injury was not work-related and that he was able to return to work without any restrictions. However, the employee chose to continue to follow his own physician’s advice and remained off of work.
When the employee did not show up for work Dominick’s applied its no-fault attendance policy and terminated the employee. Under this policy an employee can be terminated for job abandonment if he or she fails to come into work or call in absences.
An arbitration hearing decided that the plaintiff’s injuries were in fact caused by the accidents that occurred during the course of the plaintiff’s employment at Dominick’s. Furthermore, the arbitrator relied on the findings of the plaintiff’s personal physician, citing the independent medical exam as being unpersuasive. The arbitrator’s findings were accepted by the Illinois Workers’ Compensation Commission (IWCC).
The Cook County workers compensation case was brought to the Illinois Appellate Court to establish the course of action when there are conflicting medical opinions. The court held that when there are conflicting medical opinions as to an employee’s medical status that the employer may not rely solely on the independent medical examiner’s findings when terminating an employee.
The Appellate Court also reviewed the retaliatory discharge claim the plaintiff had brought against Dominick’s. The court held that the trial court had improperly applied a per se rule of retaliatory discharge when instead they should have considered whether there was a genuine issue of material fact as to causation that would then preclude summary judgment. The Appellate Court declined to apply a per se rule of retaliatory discharge, stating that instead the traditional tort analysis should be applied to cases where a retaliatory discharge suit has been filed by an employee predicated on an employee’s filing of a workers’ compensation claim.