{ "id": 4292372, "name": "FRED W. GRABS et al., Plaintiffs-Appellees, v. SAFEWAY, INC., et al., Defendants-Appellants", "name_abbreviation": "Grabs v. Safeway, Inc.", "decision_date": "2009-09-30", "docket_number": "No. 1\u201408\u20143007", "first_page": "286", "last_page": "302", "citations": [ { "type": "official", "cite": "395 Ill. App. 3d 286" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "373 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270123 ], "weight": 8, "year": 2007, "pin_cites": [ { "page": "221" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0214-01" ] }, { "cite": "303 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511403 ], "weight": 7, "year": 1999, "pin_cites": [ { "page": "6" }, { "page": "6" }, { "page": "7" }, { "page": "8" }, { "page": "8" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0001-01" ] }, { "cite": "106 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138751 ], "year": 1985, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0520-01" ] }, { "cite": "204 Ill. App. 3d 302", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574356 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0302-01" ] }, { "cite": "314 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140100 ], "weight": 10, "year": 2000, "pin_cites": [ { "page": "593" }, { "page": "593" }, { "page": "593-94" }, { "page": "594-95" }, { "page": "595" }, { "page": "595" }, { "page": "596" }, { "page": "595-96" }, { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0591-01" ] }, { "cite": "184 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926960 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "336" }, { "page": "336" }, { "page": "336" }, { "page": "336-37" }, { "page": "339" }, { "page": "336-37" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0328-01" ] }, { "cite": "389 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283833 ], "year": 2009, "pin_cites": [ { "page": "685", "parenthetical": "this court's review is generally limited to the question certified by the trial court" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0683-01" ] }, { "cite": "233 Ill. 2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3621380 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/ill-2d/233/0416-01" ] }, { "cite": "231 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617170 ], "weight": 4, "pin_cites": [ { "page": "119" }, { "page": "119" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0111-01" ] }, { "cite": "318 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279506 ], "weight": 12, "year": 2001, "pin_cites": [ { "page": "986" }, { "page": "986" }, { "page": "986" }, { "page": "990" }, { "page": "989" }, { "page": "989" }, { "page": "988-89" }, { "page": "989" }, { "page": "989" }, { "page": "988-89", "parenthetical": "the Commission is to settle disputes where there are conflicting medical opinions" }, { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0984-01" ] }, { "cite": "151 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291423 ], "weight": 13, "year": 1992, "pin_cites": [ { "page": "160, 166" }, { "page": "160" }, { "page": "160" }, { "page": "160" }, { "page": "160" }, { "page": "163" }, { "page": "163-64" }, { "page": "166-67" }, { "page": "167" }, { "page": "163" }, { "page": "160" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0142-01" ] }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "182-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "182 Ill. 2d 12", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864530 ], "year": 1998, "pin_cites": [ { "page": "17-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0012-01" ] }, { "cite": "297 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910221 ], "weight": 13, "year": 1998, "pin_cites": [ { "page": "697" }, { "page": "696" }, { "page": "696" }, { "page": "697" }, { "page": "698" }, { "page": "698" }, { "page": "699" }, { "page": "698" }, { "page": "699" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0694-01" ] } ], "analysis": { "cardinality": 1080, "char_count": 41259, "ocr_confidence": 0.781, "pagerank": { "raw": 1.4566761876300404e-07, "percentile": 0.6560772462023847 }, "sha256": "e012e079f0e60613358fe0bc26204236aef77d29d795c1c493fdadfa6c259583", "simhash": "1:0bbddcc2ee08f5e9", "word_count": 6666 }, "last_updated": "2023-07-14T16:58:02.073967+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRED W. GRABS et al., Plaintiffs-Appellees, v. SAFEWAY, INC., et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nPlaintiffs filed a joint complaint against their former employer, defendant Dominick\u2019s Finer Foods, LLC, and its parent company, Safeway, Inc. (collectively Dominick\u2019s or defendants), alleging their discharge was in retaliation for filing claims pursuant to the Workers\u2019 Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)). Dominick\u2019s maintained that it terminated plaintiffs\u2019 employment pursuant to its neutrally applied attendance policy after Dominick\u2019s obtained an opinion from an independent medical examiner (IME) that plaintiffs could return to work without restrictions and plaintiffs failed to come to work or call in their absences for three days in a row. The circuit court denied plaintiffs\u2019 motion for summary judgment on their claims, but subsequently granted plaintiffs\u2019 motion to reconsider and entered summary judgment in favor of plaintiffs. The circuit court then granted defendants\u2019 motion for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). On October 21, 2008, the circuit court certified the following question for interlocutory appeal:\n\u201cDoes the Workers\u2019 Compensation Act give the Illinois Workers Compensation Commission the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee\u2019s doctor and the employer\u2019s IME, the employer may not rely upon the IME opinion to terminate the employee under the employer\u2019s attendance policy for failing to return to work, before the Commission has adjudicated the pending dispute over the conflicting medical opinions?\u201d\nDefendants timely filed an application for leave to appeal on November 3, 2008, and this court allowed the application on November 26, 2008.\nFor the following reasons, we find that when an employer is faced with conflicting medical opinions from the employee\u2019s doctor and the employer\u2019s IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work or for failing to call in his absences. We decline to find that a per se standard exists to recover for a workers\u2019 compensation retaliatory discharge claim; rather, an employee must meet his burden of proof to show that his discharge was causally related to the exercise of his rights under the Act.\nI. BACKGROUND\nPlaintiffs were both employed by defendants and worked at a Dominick\u2019s store in Cook County, Illinois. On March 4, 2005, Grabs was injured while at work at Dominick\u2019s and Grabs filed a workers\u2019 compensation claim on that date. Dominick\u2019s initially approved the claim and paid Grabs\u2019 medical bills and temporary total disability benefits. On March 16, 2006, Grabs\u2019 physician, Dr. Sweeney, recommended that Grabs remain off work. On March 25, 2006, Grabs visited Dr. Bernstein, an IME, and Dr. Bernstein determined that Grabs\u2019 injury was not work related and that he could return to work with no restrictions. Grabs decided to follow his physician\u2019s advice, Dr. Sweeney, and remained off work.\nFrancek alleged that he suffered work injuries on May 28, 2005, and January 9, 2006. Francek filed four workers\u2019 compensation claims, the last two of which he alleged led to his discharge. Dominick\u2019s denied these last two claims and requested that Francek submit to an independent medical examination, which was performed by Dr. Papierski. Dr. Papierski determined that the injury was not work related and released Francek to work immediately with no restrictions. Around this same time, Francek was also examined by his personal physician, Dr. Bartucci, who recommended that Francek remain off work. Francek followed the advice of Dr. Bartucci and remained off work.\nDominick\u2019s had a no-fault attendance policy, in which an employee may be terminated for job abandonment if he does not come in to work or call in his absences for three days in a row {i.e., attendance coding \u201cCode 10-No Call/No-Show\u201d). Following the opinions of the IMEs, Dominick\u2019s changed plaintiffs\u2019 attendance coding from work related injury, which did not require them to call in their absences, to require plaintiffs to return to work or call in their absences. On June 14, 2006, when Grabs did not return to work or call in his absence, Dominick\u2019s no-fault attendance policy began running. When Grabs did not report to the office or call in his absences on June 15 or 16, Dominick\u2019s terminated his employment in accordance with its attendance policy. Similarly, on June 19, 2006, when Francek failed to return to work or call in his absence, Dominick\u2019s began the tolling of its attendance policy. After Francek failed to come in to work or call in his absences on June 20 and 21, Dominick\u2019s terminated his employment.\nPlaintiffs filed claims against defendants alleging retaliatory discharge. On May 2, 2008, the circuit court denied plaintiffs\u2019 motions for summary judgment on their claims and granted defendants\u2019 motion for severance of the trials.\nOn July 7, 2008, the Illinois Workers\u2019 Compensation Commission (Commission) issued its final decisions with respect to plaintiffs\u2019 petitions for an emergency hearing by an arbitrator, filed pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), to resolve the dispute whether plaintiffs were capable of returning to work. In its decision, the Commission adopted the findings of the arbitrator of the Commission. The arbitrator accepted the findings of plaintiffs\u2019 personal physicians, Drs. Sweeney and Bartucci, and found defendants\u2019 IMEs unpersuasive. The arbitrator determined that plaintiffs\u2019 injuries were caused by accidents that arose out of and in the course of their employment with defendants. Specifically, Grabs was injured on March 4, 2005, as he was twisting and moving a 10-pound box. Francek was injured on January 9, 2006, as he was moving boxes above shoulder height. The arbitrator noted that at the time of its decision, plaintiffs were both being treated by their physicians, who had not released plaintiffs to work. Accordingly, the arbitrator found that plaintiffs were exercising their rights, pursuant to section 8(a) of the Act (820 ILCS 305/8(a) (West 2006)), to follow their physicians\u2019 advice and not return to full-duty work. The arbitrator stated that, pursuant to section 8(a), plaintiffs could ignore an IME recommendation that contradicted their treating physicians\u2019 advice. The arbitrator also found that, pursuant to sections 18 and 19 of the Act (820 ILCS 305/ 18, 19 (West 2006)), the resolution of the medical dispute over whether plaintiffs could return to work was for the Commission to resolve. At the time defendants terminated plaintiffs\u2019 employment, plaintiffs had pending petitions for an immediate hearing on the issue of whether each was capable of returning to work, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)). The arbitrator also determined that the IME opinions, used by defendants to change plaintiffs\u2019 attendance coding to require them to return to work or call in their absences, were created as part of defendants\u2019 workers\u2019 compensation defense to plaintiffs\u2019 claims for temporary total weekly compensation and medical care prescribed by their physicians. The arbitrator concluded that defendants were obligated to pay plaintiffs for temporary total disability benefits and medical services and prospective medical care.\nOn September 19, 2008, in an eight-page written order, the circuit court granted plaintiffs\u2019 motion to reconsider, in part, and granted plaintiffs\u2019 motion for summary judgment on the issue of liability. The circuit court denied plaintiffs\u2019 motion to reconsider its ruling granting defendants\u2019 motion for separate trials on damages. In its order, the circuit court found that plaintiffs had a right to follow their treating doctors\u2019 advice and not return to work until the Commission resolved the conflicting medical opinions. The circuit court noted that while plaintiffs had a petition pending before the Commission to determine the issue of whether plaintiffs were capable of returning to work, defendants used the IME reports to change plaintiffs\u2019 attendance coding to \u201cCode 10-No Call/No-Show.\u201d While plaintiffs had no previous duty to call in absences, the new coding required plaintiffs to do so. After Grabs and Francek failed to call in three days in a row, defendants terminated them pursuant to Dominick\u2019s attendance policy. The circuit court found that the fact that the attendance policy was \u201cneutral,\u201d in that it was applied in the same manner to all employees did not shield defendants under the \u201cnonpretextual\u201d exception to plaintiffs\u2019 retaliatory discharge claim where the application of the policy was improper and in violation of the Act. The circuit court concluded that because the change in coding was in response to the IME reports, which were disputed by plaintiffs\u2019 treating physicians and should have been resolved by the Commission prior to any action by defendants, plaintiffs\u2019 discharge was directly and proximately related to their claims for benefits under the Act, and summary judgment in their favor was proper. In reaching its determination, the circuit court relied on this court\u2019s decision in Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694 (1998). All parties on appeal assert that the circuit court applied essentially a per se standard to find that plaintiffs\u2019 discharge was causally related to the improper denial of their right to follow their treating physicians\u2019 orders while their claims were pending before the Commission. On October 21, 2008, the circuit court granted defendants\u2019 motion for interlocutory appeal and certified the above question.\nII. ANALYSIS\nThe 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). 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\u2019 compensation benefits could bring an action for retaliatory discharge against the former employer. After examining the history of the Act, our supreme court held that a cause of action based on the tort of retaliatory discharge was necessary to insure that the public policy underlying the enactment of the Act was not frustrated. Kelsay, 74 Ill. 2d at 182-85. Discharges are considered retaliatory when they violate a \u201cclear mandate of public policy,\u201d and an employer \u201cmay not present the employee with a choice between his job and his legal entitlement to compensation\u201d under the Act. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160, 166 (1992).\nThe Act specifically provides that \u201c[i]t shall be unlawful for any employer *** to discharge *** an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.\u201d 820 ILCS 305/4(h) (West 2006); Smith v. Waukegan Park District, 231 Ill. 2d Ill, 119 (2008). Therefore, as our supreme court has explained, \u201csection 4(h) plainly prohibits a retaliatory discharge for the exercise of workers\u2019 compensation rights.\u201d Smith, 231 Ill. 2d at 119.\nTo state a cause of action for retaliatory discharge, plaintiffs must show that: (1) they were employees of defendants before or at the time of the injury; (2) they exercised some right granted by the Act (820 ILCS 305/1 et seq. (West 2006)); and (3) their discharge was causally related to the exercise of their rights under the Act. Clark, 297 Ill. App. 3d at 697. The element of causation is not met if the employer has a valid, nonpretextual basis for discharging the employee. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992).\nIn the present case, both parties agree that Grabs and Francek were employees of Dominick\u2019s at the time of their injuries and that they exercised their rights to benefits under the Act. Therefore, the sole issue before the circuit court was whether plaintiffs\u2019 discharge was causally related to the exercise of their rights under the Act. In its September 19, 2008, order, the circuit court determined that, as a matter of law, plaintiffs\u2019 discharge was causally related to the improper denial of their right to follow their treating physicians\u2019 orders while their claims were pending before the Commission.\nOn appeal, defendants contend that the circuit court improperly entered summary judgment in plaintiffs\u2019 favor because causation is a material fact for a jury and that this court should answer the certified question in the negative. Plaintiffs maintain that this court should answer the certified question in the affirmative based on the reasoning set forth by the Fifth District of this court in Clark, 297 Ill. App. 3d 694, and Hollowell v. Wilder Corp. of Delaware, 318 Ill. App. 3d 984 (2001).\nIn Clark, an employee injured her back at work and the employer began paying temporary total disability payments to the employee while she was off work and participating in a physical therapy/work-hardening program as prescribed by her physician. Clark, 297 Ill. App. 3d at 696. The employer believed that the employee was malingering and receiving unwarranted workers\u2019 compensation benefits, so the employer hired a private investigator to monitor her. After the employer reviewed the private investigator\u2019s videotaped surveillance of the employee mowing her lawn, the employer fired the employee for fraudulent misrepresentation and conduct in connection with her claims for workers\u2019 compensation. Clark, 297 Ill. App. 3d at 696. The employee brought an action to recover damages for retaliatory discharge. The Fifth District of this court affirmed the circuit court\u2019s grant of summary judgment in the employee\u2019s favor and the jury\u2019s award of more that $150,000 in damages.\nIn affirming the grant of summary judgment, the Clark court did not establish a per se rule to recover for retaliatory discharge. Rather, the court explained that a claimant must show, inter alia, that \u201chis or her discharge was causally related to the exercise of rights under the Act.\u201d Clark, 297 Ill. App. 3d at 697. In Clark, the employer admitted that the employee\u2019s discharge was connected to her workers\u2019 compensation claim because the employer thought that the employee was malingering and collecting benefits to which she was not entitled. Clark, 297 Ill. App. 3d at 698. As a result, the Clark court held that the entry of summary judgment in favor of the employee was proper because her discharge was directly and proximately related to her claim for benefits. Clark, 297 Ill. App. 3d at 698. In discussing the entry of summary judgment in that case, the Clark court stated, \u201cWe wish to be clear on this point. An employer may not discharge an employee on the basis of a dispute about the extent or duration of a compensable injury. An employer that fails to heed this rule subjects itself to a retaliatory discharge action under Kelsay.\u201d Clark, 297 Ill. App. 3d at 699. However, the Clark court noted: \u201cThis does not mean that an employer may never discharge an employee who has filed for benefits under the Act. An employer may discharge an injured employee who has filed a workers\u2019 compensation claim as long as the reason for the discharge is wholly unrelated to the employee\u2019s claim for benefits under the Workers\u2019 Compensation Act.\u201d Clark, 297 Ill. App. 3d at 698.\nIn Hollowell, the plaintiff filed a complaint against his former employer alleging that his discharge was in retaliation to his filing a workers\u2019 compensation claim. The employee was employed as a farm laborer and injured his back while riding a tractor over a ditch in the fields. The employee was subsequently ordered by his physician not to return to work until he completed a physical therapy/work-hardening program. Hollowell, 318 Ill. App. 3d at 986. The employee filed a workers\u2019 compensation action and the employer\u2019s workers\u2019 compensation carrier requested that the employee receive an independent medical examination. The IME concluded that the employee\u2019s tractor accident aggravated a preexisting condition and that the employee could return to work immediately. Hollowell, 318 Ill. App. 3d at 986. The employee\u2019s manager visited the employee\u2019s residence and informed him that he was required to return to work immediately or face the consequence of being fired. The employee stated that he could not return under his physician\u2019s orders to finish the physical therapy program before returning to work. The employee was then fired. Hollowell, 318 Ill. App. 3d at 986. Following a trial, the jury rendered judgment in favor of the employee, which included an award of $50,000 in punitive damages. Hollowell, 318 Ill. App. 3d at 990.\nOn review, the Fifth District of this court affirmed the jury\u2019s award of punitive damages against the employer. Hollowell, 318 Ill. App. 3d at 989. The Hollowell court determined that punitive damages were warranted based on the facts of that case, where the employee presented evidence that his manager harassed and verbally abused him, and pressured the employee to violate his physician-ordered work restrictions. Hollowell, 318 Ill. App. 3d at 989. The Hollowell court explained that \u201c[a]n employer cannot unilaterally rely on one physician\u2019s favorable diagnosis while at the same time dismissing another physician\u2019s unfavorable diagnosis. To do so would give an employer the ability to rely on its own medical evaluation as a reason to demand that employees return to work, even when that evaluation conflicts with that of the employee\u2019s physician.\u201d Hollowell, 318 Ill. App. 3d at 988-89.\nAfter relying on its reasoning in Clark, the Hollowell court stressed that it was not saying, and did not say in Clark, that a fraudulent workers\u2019 compensation claim is not a justification for termination. \u201cHowever, when there is a dispute between an independent medical examiner and an employee\u2019s physician with no evidence of fraud, the employer cannot discharge the employee on the basis of suspected laziness or malingering. It is for the Industrial Commission to settle disputes such as this where there are conflicting medical opinions.\u201d Hollowell, 318 Ill. App. 3d at 989. Accordingly, the Fifth District of this court determined that, where there is a dispute between an IME and an employee\u2019s physician, the employer cannot rely solely on the IME to discharge an employee. However, the Hollowell court did not establish a per se rule but, rather, determined that the evidence supported the jury\u2019s punitive damages award in that case. Hollowell, 318 Ill. App. 3d at 989.\nPlaintiffs also rely on our supreme court\u2019s opinion in Smith, 231 Ill. 2d 111, in support of a per se rule of retaliatory discharge. In Smith, our supreme court explained that \u201csection 4(h) [of the Act] plainly prohibits a retaliatory discharge for the exercise of workers\u2019 compensation rights.\u201d Smith, 231 Ill. 2d at 119; 820 ILCS 305/4(h) (West 2006). However, other than stating the general law with respect to retaliatory discharge, our supreme court\u2019s holding in Smith is inapplicable. In Smith, our supreme court determined that the defendant park district was not immune under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2 \u2014 109 (West 2002)) against claims of retaliatory discharge for exercising workers\u2019 compensation rights. Smith, 231 Ill. 2d at 119. Our supreme court\u2019s decision in Smith does not support establishing a per se retaliatory discharge rule. Rather, our supreme court analyzed the disputed facts and determined that the dismissal of the plaintiff\u2019s retaliatory discharge claim, pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2002)), was improper in that case. Smith, 231 Ill. 2d at 121.\nIn the instant case, both Grabs and Francek presented orders from their treating physicians which conflicted with the IME determinations that they could return to work. At the time of their discharge, Grabs and Francek also had pending petitions, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), for an immediate hearing before an arbitrator to resolve the dispute between plaintiffs\u2019 physicians and the IME regarding whether each was capable of returning to work. Defendants admit that they relied on the IME opinions to change plaintiffs\u2019 attendance coding and require that plaintiffs come to work or call in absences.\nIn a petition for rehearing, plaintiffs argued that the defendants\u2019 admission that they relied on the IME opinions to change plaintiffs\u2019 attendance coding to require that plaintiffs come to work or call in their absences, amounts to a concession that defendants\u2019 reliance on the IME opinions constituted a proximate cause of plaintiffs\u2019 discharge. Citing Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), plaintiffs argue that the undisputed facts in the present case constitute proximate cause under either the \u201cbut for\u201d standard or the \u201csubstantial cause\u201d standard: \u201c \u2018But for\u2019 Safeway\u2019s illegal use of its IME opinions to change the plaintiffs\u2019 attendance status from \u2018work related absences\u2019 to \u2018personal absences\u2019 under Safeway\u2019s attendance policy, plaintiffs would not have been fired. The facts also meet the \u2018substantial cause\u2019 standard: Safeway\u2019s admitted illegal use of the IME opinions was a \u2018substantial cause\u2019 for the firing.\u201d\nIn their answer to the petition for rehearing, defendants responded, \u201cUnder the Pattern Jury Instruction, plaintiffs must prove they were discharged \u2018because of the exercise of their rights under the Act. IPI 250.02 (West 2009). They must also prove that their exercise of rights was \u2018a proximate cause\u2019 \u201d of their termination.\nConsistent with our answer to the certified question, in order to recover for workers\u2019 compensation retaliatory discharge, plaintiffs were required to show that defendants relied on the IME opinions in discharging plaintiffs, such that the termination was causally related to their exercising a right or remedy granted to them by the Act. 820 ILCS 305/4(b), 8(a) (West 2006). Consequently, if the change of plaintiffs\u2019 attendance coding was made based solely on the IME opinions, and defendants terminated plaintiffs for failing to return to work or for failing to call in their absences, entry of summary judgment for plaintiffs would be appropriate. We do not decide this issue as this case is before us pursuant to Supreme Court Rule 308. See Brookbank v. Olson, 389 Ill. App. 3d 683, 685 (2009) (this court\u2019s review is generally limited to the question certified by the trial court). We note that the petition for rehearing and answer focused almost entirely on the issue of proximate cause \u2014 an issue which was only briefly discussed in the parties\u2019 initial briefs.\nDefendants rely upon our supreme court\u2019s decision in Hartlein v. Illinois Power Co., 151 Ill. 2d 142 (1992), in support of their contention that defendants had the right to discharge plaintiffs for failing to return to work. In Hartlein, our supreme court stated that \u201cIllinois law does not obligate an employer to retain an at-will employee who is medically unable to return to his assigned position\u201d and \u201c[A]n employer may fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury.\u201d Hartlein, 151 Ill. 2d at 160. In Hartlein, our supreme court explained that a valid claim of retaliatory discharge requires, inter alia, a showing that an employee has been discharged in retaliation for the employee\u2019s activities. Hartlein, 151 Ill. 2d at 160. Our supreme court also noted that \u201c[t]he element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee.\u201d Hartlein, 151 Ill. 2d at 160. With respect to the element of causation, \u201cthe ultimate issue to be decided is the employer\u2019s motive in discharging the employee.\u201d Hartlein, 151 Ill. 2d at 163.\nIn Hartlein, it was undisputed that the employee\u2019s work-related injury prevented him from ever returning to his former position within the company and the company had no available positions which the employee was capable of performing. Hartlein, 151 Ill. 2d at 163-64. Our supreme court held that no improper motive on the employer\u2019s part was shown and, therefore, the evidence did not reveal that the employee was retaliatorily discharged. Hartlein, 151 Ill. 2d at 166-67. As a result, the Hartlein court concluded that the grant of a preliminary injunction was improper in that case. Hartlein, 151 Ill. 2d at 167.\nHere, by contrast, the issue of whether plaintiffs were capable of returning to work was disputed. Unlike the situation in Hartlein, defendants in this case did not have the right to terminate plaintiffs for failing to return to work or for failing to call in their absences based solely on the IME determinations that plaintiffs were capable of returning to work where the IME opinions were disputed by plaintiffs\u2019 physicians. Rather, due to the conflicting medical evidence in this case, the determination regarding plaintiffs\u2019 ability to return to work could only have been made by the Commission. 820 ILCS 305/18 (West 2006) (\u201cAll questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except otherwise provided, be determined by the Commission\u201d); see also Hollowell, 318 Ill. App. 3d at 988-89 (the Commission is to settle disputes where there are conflicting medical opinions). However, plaintiffs were still obligated to establish the element of causation in support of their retaliatory discharge claims. Hartlein, 151 Ill. 2d at 163. If defendants had a valid basis, which was not pretextual, for discharging plaintiffs, then the element of causation is not met. Hartlein, 151 Ill. 2d at 160. However, if the plaintiffs can show that they were discharged in retaliation for exercising their rights under the Act, then plaintiffs can establish a claim for retaliatory discharge and the grant of summary judgment may be appropriate.\nIn Clemons v. Mechanical Devices Co., 184 Ill. 2d 328 (1998), our supreme court, interpreting Hartlein, explained that in retaliatory discharge cases, an employer is not required to come forward with an explanation for an employee\u2019s discharge, and \u201cit remains plaintiffs burden to prove the elements of the cause of action.\u201d Clemons, 184 Ill. 2d at 336. However, \u201cif an employer chooses to come forward with a valid, nonpretextual basis for discharging its employees and the trier of fact believes it, the causation element required to be proven is not met.\u201d Clemons, 184 Ill. 2d at 336.\nIn Clemons, the employer chose to assert a defense to the employee\u2019s cause of action for retaliatory discharge. The employer maintained that the employee was discharged, not in retaliation for filing a workers\u2019 compensation claim, but because of a dispute over the payment of his wages. The employee argued that the employer\u2019s stated reason for the discharge was a violation of the Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 1994)) and that an employer may not contest the causation element of the tort of retaliatory discharge by proffering an illegal defense. Clemons, 184 Ill. 2d at 336. In rejecting the employee\u2019s argument, our supreme court explained:\n\u201cThe burden remains on the plaintiff to establish the elements of his cause of action, which here involved the discrete claim that the defendant wrongfully discharged plaintiff in retaliation for seeking recovery under the Workers\u2019 Compensation Act. If the trier of fact rejects plaintiffs evidence, or instead accepts defendant\u2019s proffered reason for the termination, then plaintiff has failed to meet his burden of proof. In any event, we do not believe that a defendant is limited in the defense it may offer to a plaintiffs claim of retaliatory discharge, or that the allegedly illegal nature of its defense somehow relieves plaintiff of his burden of establishing the elements of his cause of action. Other remedies may exist for the other violation, but the burden still rests on plaintiff to prove the elements of the action he has pleaded.\u201d Clemons, 184 Ill. 2d at 336-37.\nOur supreme court further stated that cases brought for retaliatory discharge predicated on an employee\u2019s filing of a worker\u2019s compensation claim are reviewed using traditional tort analysis. Clemons, 184 Ill. 2d at 339. Accordingly, our supreme court has made clear that a plaintiff bears the burden of establishing the elements of his cause of action for retaliatory discharge, including the element of causation. We therefore find no reason to create a per se rule of retaliatory discharge in this case.\nDefendants also rely on the Second District of this court\u2019s determination in Paz v. Commonwealth Edison, 314 Ill. App. 3d 591 (2000), to support their argument against a per se rule of retaliatory discharge. Defendants argue that under Paz, discharging an employee for absenteeism when the employee\u2019s physician disputes the employee\u2019s ability to return to work presents a factual question for a jury on the issue of causation.\nIn Paz, on August 16, 1989, the plaintiff was an employee of Commonwealth Edison (ComEd) who was injured on the job. For two years, the employee on occasion returned to work part-time and performed light-duty tasks. The employee was paid workers\u2019 compensation benefits and medical expenses. The employee and ComEd eventually settled on total workers\u2019 compensation benefits of $115,000, which was approved by the Commission. Paz, 314 Ill. App. 3d at 593. During this period, the employee was examined by several doctors, including his personal physician and a doctor employed by ComEd. These doctors disputed the employee\u2019s ability to work. On November 7, 1991, the employee was examined by a doctor employed by ComEd and the parties disputed whether that doctor at that time released the employee to work full-time. The employee did not report to work on November 7, 1991, and the employee was terminated that day. Paz, 314 Ill. App. 3d at 593. The employee filed suit alleging retaliatory discharge and the jury returned a verdict in ComEd\u2019s favor. Paz, 314 Ill. App. 3d at 593-94.\nThe Second District of this court held that the jury\u2019s determination that the employee\u2019s discharge was not causally related to his exercise of rights under the Act was not against the manifest weight of the evidence. Paz, 314 Ill. App. 3d at 594-95. The Paz majority opinion noted that the employee was discharged more than two years after he was injured and began receiving benefits under the Act; he had not reported to work for approximately five months at the time of his firing; and he did not report to work on November 7, 1991, the date on which ComEd discharged him after determining that he could not or would not do full-time work. Paz, 314 Ill. App. 3d at 595. The Paz majority explained that ComEd only had eight-hour-a-day restricted-duty work available and the employee refused to work eight hours a day. Paz, 314 Ill. App. 3d at 595.\nIn upholding the jury\u2019s verdict, the Paz majority rejected the employee\u2019s and dissent\u2019s reliance on Clark, 297 Ill. App. 3d 694. The Paz majority stated:\n\u201cPlaintiff and the dissent would have this court take the Clark holding that an employee may not be discharged \u2018on the basis of a dispute about the extent or duration of a compensable injury\u2019 (Clark, 297 Ill. App. 3d at 699) to mean that any time an employee is unable to return to work or refused to return because his personal physician advises against it the employer cannot do anything about it, as this would involve a dispute about the extent or duration of the employee\u2019s injury. This is not the law, and we will not make it so. Plaintiff and the dissent attempt to take a factual issue (the dispute over plaintiff\u2019s ability to work eight-hour days) and turn it into a question of law inuring to the benefit of the plaintiff. The evidence against the employer in Clark was \u00ab^disputed. Such is not the case here. To that extent, Clark is inapplicable and distinguishable.\u201d (Emphasis in original.) Paz, 314 Ill. App. 3d at 596.\nThe Paz majority explained that the appellate court in Clark found as undisputed the fact that the employee was discharged because the employer believed that her claim for benefits was exaggerated; whereas, in Paz, the dispute over the employee\u2019s ability to return to full-time employment was just one fact to be considered by the fact finder. Paz, 314 Ill. App. 3d at 595-96. The Paz majority concluded that \u201c[wjhether the plaintiffs discharge was retaliation for exercising his rights under the Act or whether the discharge was ComEd\u2019s lawful termination of an employee unable to fulfill his duties is a question of fact to be decided after viewing all the evidence.\u201d Paz, 314 Ill. App. 3d at 596.\nAs in Paz, defendants in this case disputed plaintiffs\u2019 allegations that their discharge was in retaliation for filing their workers\u2019 compensation claims. The present case is distinguishable from Clark, where the employer admitted that the employee\u2019s discharge was connected to her workers\u2019 compensation claim because the employer thought that the employee was malingering (Clark, 297 Ill. App. 3d at 698), and Hollowell, where the appellate court determined that the evidence supported the jury\u2019s punitive damages award in that case. Hollowell, 318 Ill. App. 3d at 989. Here, it appears that the circuit court went beyond these cases and applied a per se rule of retaliatory discharge rather than examining whether defendants relied solely on the IME opinions to terminate plaintiffs or whether defendants had a valid, nonpretextual basis for discharging plaintiffs. As our supreme court has explained, \u201c[t]he burden remains on the plaintiff to establish the elements of his cause of action,\u201d which here involved the claim that defendants wrongfully discharged plaintiffs in retaliation for seeking recovery under the Act. See Clemons, 184 Ill. 2d at 336-37.\nIn determining whether a plaintiff has established the element of causation for retaliatory discharge, this court has explained \u201c[t]hat an employer may discharge an employee at will for any reason or for no reason \u2018is still the law in Illinois, except when the discharge violates a clearly mandated public policy.\u2019 \u201d Marin v. American Meat Packing Co., 204 Ill. App. 3d 302, 308 (1990), quoting Barr v. Kelso-Burnett\nCo., 106 Ill. 2d 520, 525 (1985). In Marin, this court held that the verdict in favor of an employee on his retaliatory discharge claim was against the manifest weight of the evidence, thereby entitling the employer to a new trial. In Marin, this court determined that, contrary to the employee\u2019s claim, there was evidence that the employer attempted to restore the employee to active employment after his injury where the employer provided the employee with an extra 10 days to return to work after notice from the employee\u2019s doctor that he could return to work. Marin, 204 Ill. App. 3d at 308. This court also noted that the employer ultimately terminated the employee for absenteeism and there was no evidence that the supervisor responsible for firing the employee knew of the employee\u2019s workers\u2019 compensation claim. Marin, 204 Ill. App. 3d at 308. Accordingly, this court explained that \u201c[t]he causality element, therefore, requires more than a discharge in connection with filing a claim.\u201d Marin, 204 Ill. App. 3d at 308.\nIn Finnerty v. Personnel Board of the City of Chicago, 303 Ill. App. 3d 1 (1999), this court discussed the role of the Commission with respect to the review of the city personnel board\u2019s decision to discharge the plaintiff-employee for violating the city\u2019s personnel rules. This court explained that it is the role of the Commission to decide whether the former city employee was injured, whether the injury was work-related, the extent of the injury and whether any disability was involved. Finnerty, 303 Ill. App. 3d at 6. However, this court determined that the city\u2019s personnel board was the proper forum to determine whether the employee should have been discharged for violating the city\u2019s personnel rules by his excessive absenteeism and failure to call in advance when he was going to be absent from work. Finnerty, 303 Ill. App. 3d at 6. This court rejected the employee\u2019s argument that the mere filing of a workers\u2019 compensation claim operated as a stay of any administrative proceeding regarding his discharge until the resolution of the workers\u2019 compensation claim. Finnerty, 303 Ill. App. 3d at 7. In doing so, this court noted that there is no such provision in the Act and the plaintiff failed to cite case law in support of this contention. This court explained that \u201cplaintiffs pending workers\u2019 compensation claim did not shield him from having to comply with the City\u2019s personnel rules\u201d regarding employee absenteeism. Finnerty, 303 Ill. App. 3d at 8. \u201cIt is well settled in Illinois that an employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by a compensable injury.\u201d Finnerty, 303 Ill. App. 3d at 8. This court concluded that \u201cjust as an employer may fire an at-will employee for excessive absenteeism, *** so too can an employer terminate a contractual employee for being absent without leave, when the employment agreement, as here, specifically states that just cause for termination includes such absenteeism.\u201d Finnerty, 303 Ill. App. 3d at 8.\nIn Siekierka v. United Steel Deck, Inc., 373 Ill. App. 3d 214 (2007), this court determined that summary judgment in the employer\u2019s favor was not appropriate where a genuine issue of material fact existed as to any causal connection between the employee\u2019s termination and the filing of his workers\u2019 compensation claim. This court noted that \u201c[t]he ultimate issue concerning the element of causation is the employer\u2019s motive in discharging the employee.\u201d Siekierka, 373 Ill. App. 3d at 221. This court explained that the element of causation is not met if the employer has a \u201c \u2018valid basis, which is not pretextual, for discharging the employee.\u2019 \u201d Siekierka, 373 Ill. App. 3d at 222, quoting Hartlein, 151 Ill. 2d at 160. For example, \u201can employer may terminate an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury.\u201d Siekierka, 373 Ill. App. 3d at 222. However, the mere existence of a valid or sufficient reason does not defeat a retaliatory discharge claim. Siekierka, 373 Ill. App. 3d at 222. Furthermore, \u201cdespite an ostensibly neutral absenteeism policy, where the actual purpose and effect of the scheme penalize employees for filing workers\u2019 compensation claims, the employer\u2019s action may in fact be retaliatory.\u201d Siekierka, 373 Ill. App. 3d at 222.\nIn Siekierka, this court noted that the employer chose to come forward with a valid nonpretextual basis for terminating the employee, namely, his failure to return from authorized leave. However, there was also evidence to support an inference that the employer\u2019s insurer set in motion a process, by refusing to accommodate the employee\u2019s surgery, that made it impossible for the employee to return to work within the time granted to him by the employer. Siekierka, 373 Ill. App. 3d at 222. This court therefore concluded that there was a genuine issue of material fact as to whether there exists a causal nexus between the employee\u2019s discharge and the exercise of his rights under the Act. Siekierka, 373 Ill. App. 3d at 223.\nIn the present case, it appears that the circuit court applied a per se rule of retaliatory discharge instead of considering whether there was a genuine issue of material fact as to the element of causation that would preclude summary judgment. While it would be improper for defendants to change plaintiffs\u2019 attendance coding and then discharge plaintiffs solely based on the IME opinions where it is the role of the Commission to determine the extent of plaintiffs\u2019 injuries, we decline to apply a per se rule of retaliatory discharge. Rather, cases brought for retaliatory discharge predicated on an employee\u2019s filing of a workers\u2019 compensation claim are reviewed using traditional tort analysis. See Clemons, 184 Ill. 2d at 339. It therefore remains the plaintiffs\u2019 burden to establish the elements of their cause of action, which involved the claim that defendants wrongfully discharged plaintiffs in retaliation for exercising a right or remedy granted to them under the Act.\nCertified question answered.\nMURPHY, P.J., and THEIS, J., concur.\nWhile plaintiffs were union members, the union contract was not involved in this case.\nDefendants also admitted that they did not communicate this change in policy requiring plaintiffs to call in absences to either of the plaintiffs; rather, they notified plaintiffs\u2019 union.", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Vedder Price P.C., of Chicago (Thomas M. Wilde and Patrick W. Spangler, of counsel), for appellants.", "Rittenberg, Buffen & Gulbrandsen, of Chicago (Ivan M. Rittenberg and Steven R. Saks, of counsel), for appellees." ], "corrections": "", "head_matter": "FRED W. GRABS et al., Plaintiffs-Appellees, v. SAFEWAY, INC., et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 1\u201408\u20143007\nOpinion filed September 30, 2009.\nVedder Price P.C., of Chicago (Thomas M. Wilde and Patrick W. Spangler, of counsel), for appellants.\nRittenberg, Buffen & Gulbrandsen, of Chicago (Ivan M. Rittenberg and Steven R. Saks, of counsel), for appellees." }, "file_name": "0286-01", "first_page_order": 302, "last_page_order": 318 }