{ "id": 3523561, "name": "JOHN W. UNGER, M.D., Plaintiff-Appellant, v. CONTINENTAL ASSURANCE COMPANY et al., Defendants-Appellees", "name_abbreviation": "Unger v. Continental Assurance Co.", "decision_date": "1984-03-08", "docket_number": "No. 83\u20141083", "first_page": "376", "last_page": "381", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 376" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856971 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0453-01" ] }, { "cite": "404 N.E.2d 1039", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5551452 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0331-01" ] }, { "cite": "210 N.E.2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2882943 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0040-01" ] }, { "cite": "372 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3413382 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0967-01" ] }, { "cite": "434 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1977, "pin_cites": [ { "page": "380" }, { "page": "380" }, { "page": "380" }, { "page": "380" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5468480 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "352" }, { "page": "352" }, { "page": "352" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0350-01" ] }, { "cite": "423 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "85 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469643 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0352-01" ] } ], "analysis": { "cardinality": 455, "char_count": 9888, "ocr_confidence": 0.769, "pagerank": { "raw": 6.731773304126868e-08, "percentile": 0.4083989066544034 }, "sha256": "c38b1afd8e44c877d868f7d79aed15ea422a0d8817ac9a4404bd3ea1c4507ce3", "simhash": "1:3c356c6dad51161f", "word_count": 1611 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN W. UNGER, M.D., Plaintiff-Appellant, v. CONTINENTAL ASSURANCE COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe issue central to this action is whether the medical malpractice claim of the plaintiff, John W. Unger, is barred by the exclusive remedy provision of the Workers\u2019 Compensation Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) The plaintiff alleged that while he was employed by Continental Assurance Company (CAC), he received a physical examination. The examination was performed by the plaintiff\u2019s co-employee, defendant Dr. Carl R. Hines, who allegedly failed to diagnose the plaintiff\u2019s lung cancer until repeat chest X rays were taken almost one year after the initial examination. The plaintiff filed suit against Hines and against CAC as the alleged employer of Hines. After the statute of limitations had expired on the plaintiff\u2019s claim, CAC answered and denied that it was the employer of either the plaintiff or Hines. Thereafter, with leave of court, the plaintiff filed his first amended complaint which added Continental Casualty Company (CCC) as an additional defendant and alleged that the plaintiff and Hines were employed by both CAC and CCC.\nThe trial court granted summary judgment in favor of Hines, finding that the plaintiff\u2019s cause of action was barred by the exclusive remedy provision of the Workers\u2019 Compensation Act. Summary judgment was also granted in favor of CAC because the trial court found that it was not the employer of Hines. CCC was dismissed as a defendant on the basis that the plaintiff\u2019s failure to name it within the statute of limitations was not inadvertent. The plaintiff now appeals the orders entered in favor of all three defendants.\nWe find that the plaintiff\u2019s claims were barred by the exclusive remedy provision of the Workers\u2019 Compensation Act. It is therefore unnecessary for this court to identify or address two other issues which have also been raised by the plaintiff on appeal.\nThe Workers\u2019 Compensation Act bars a common law action by an employee against his employer or co-employees \u201cfor injury or death sustained by any employee while engaged in the line of his duty as such employee ***.\u201d (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) \u201cLine of duty\u201d injuries are those which \u201carise out of and in the course of employment.\u201d (See McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876; McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377; Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842.) If an injury is found to have occurred in the \u201cline of duty,\u201d it is compensable under the Act. See Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 210 N.E.2d 209.\nIn the case at bar, the plaintiff maintains that his is not a \u201cline of duty\u201d injury compensable under the Act because it is not what he terms a \u201cwork-related\u201d condition or an injury that occurred \u201cin connection with the treatment or examination of a work-related injury or condition.\u201d Consequently,, the plaintiff contends that the Act does not bar his medical malpractice action against the defendant doctor. In contrast, the defendants argue that the plaintiff suffered a \u201cline of duty\u201d injury because his physical examination was performed by a co-employee and took place on the company premises during business hours. The defendants further point out that the physical was causally connected to the plaintiff\u2019s employment because the plaintiff was told by his supervisor that he would be fired if he did not have a physical.\nTwo factual situations similar to the one presented in the case at bar have been addressed by the courts of Illinois. In McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876, the plaintiff injured his foot during the course of his employment and was treated by co-employee physicians on the company premises. The company physicians misdiagnosed the plaintiff\u2019s injury and consequently aggravated the condition. The Illinois Supreme Court held that the Workers\u2019 Compensation Act provided the sole means of recovery for the plaintiff\u2019s injury and that the plaintiff could not pursue a common law malpractice remedy against his employer for the alleged negligence of its employee physicians.\nSimilarly, in McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377, the plaintiff injured his back during the course of his employment and visited his co-employee physician on the company premises. The plaintiff alleged that during the course of his treatment by the doctor, the doctor failed to diagnose or treat an existing tumor that was present in the same area where he had injured his back. The appellate court found that the plaintiff\u2019s medical malpractice action against the company physician was barred by the exclusive remedy provision of the Workers\u2019 Compensation Act. In reaching its holding, the court stated:\n\u201cIt is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act. (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039.) *** \u2018In the course of employment\u2019 relates to the time, place and circumstances of the injury, while \u2018arising out of the employment\u2019 refers to the requisite causal connection between the injury and the employment. (Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610.) Thus, the exclusiveness of the Act precludes a common law action for damages by an employee against a co-employee based on the latter\u2019s negligence during the course of their employment.\u201d 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.\nIn the instant case, the injury complained of by the plaintiff is the defendant doctor\u2019s alleged failure to properly diagnose the plaintiff\u2019s lung cancer. The only real distinction between this case and McNeil is that the McNeil plaintiff initially visited the company physician for treatment of a work-related injury while the plaintiff in this case visited the company physician for the sole purpose of having a physical examination which was required by the employer. However, as we shall discuss below, we believe that this distinction is irrelevant where the doctor\u2019s alleged negligence \u201carose out of\u201d and \u201cin the course of\u201d both the plaintiff\u2019s and the doctor\u2019s employment and where the instant plaintiff occupied the status of employee at the time of his injury.\n\u201c \u2018In the course of employment\u2019 relates to the time, place and circumstances of the injury.\u201d (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) In the instant case, the company doctor\u2019s alleged negligence occurred during working hours on the company premises. Furthermore, at the time of the injury, both the plaintiff and the doctor were acting as employees. The circumstances surrounding the injury centered upon a physical examination required of company employees which had been sponsored and conducted by the plaintiff\u2019s and the doctor\u2019s employer for several years. We believe these facts are sufficient to prove that the plaintiff\u2019s injury occurred \u201cin the course of\u201d his employment.\n\u201c \u2018[Ajrising out of the employment\u2019 refers to the requisite causal connection between the injury and the employment.\u201d (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) We believe that a sufficient causal connection was demonstrated in this case because it was undisputed .that the plaintiff was told that he would be fired from his job if he did not complete a physical examination. Further, the physical examination was obviously provided to employees for the benefit of the employment relationship. Specifically, the employee would benefit by having his physical condition examined by a physician and the employer would benefit by ensuring the continued good health of the employees in whom the employer had invested time, training and money. We think these facts amply demonstrate that the plaintiff\u2019s injury in this case \u201carose out of\u201d his employment.\nFurthermore, under McNeil, \u201cIt is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act.\u201d (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 352, 434 N.E.2d 377, 380.) Where we believe that the instant plaintiff occupied the status of employee at the time of his injury, we find the reason he was compelled to visit his company doctor, for a physical examination rather than for a work-related injury, to be immaterial under McNeil. We therefore find that the plaintiff\u2019s medical malpractice case against both the defendant doctor and his alleged employers was barred by the exclusive remedy provision of the Workers\u2019 Compensation Act. Because we believe that the employers can in no event be held liable to the plaintiff under a common law theory of malpractice, it is unnecessary for this court to consider the remaining issues which pertain to the dismissal of CCC as a party and to the summary judgment entered in favor of CAC.\nAs a final matter, the plaintiff raises certain arguments concerning the dual capacity doctrine in its reply brief on appeal. However, because this issue was not properly raised in the plaintiff\u2019s initial brief, we shall not consider the merits or ramifications of such an argument in this opinion. See 87 Ill. 2d R. 341(e)(7), (g).\nFor the foregoing reasons, the decision of the trial court is affirmed.\nAffirmed.\nLINN, P.J., and ROMITI, J., concur.", "type": "majority", "author": "JUSTICE JIGANTI" } ], "attorneys": [ "William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce Lane, of counsel), for appellant.", "Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Milo W. Lundblad, Stephen D. Davis, and Joshua G. Vincent, of counsel), for appellees." ], "corrections": "", "head_matter": "JOHN W. UNGER, M.D., Plaintiff-Appellant, v. CONTINENTAL ASSURANCE COMPANY et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 83\u20141083\nOpinion filed March 8, 1984.\nWilliam D. Maddux & Associates, of Chicago (William D. Maddux and Bruce Lane, of counsel), for appellant.\nHinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Milo W. Lundblad, Stephen D. Davis, and Joshua G. Vincent, of counsel), for appellees." }, "file_name": "0376-01", "first_page_order": 398, "last_page_order": 403 }