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Komel v. Commonwealth Edison Co.





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Rehearing denied February 9, 1978.

The plaintiff, Frank J. Komel, appeals from an order of the trial court dismissing his complaint with prejudice as to both defendants, Commonwealth Edison Company and Dr. Harry R. Freeman, and from the denial of his motion to vacate that order of dismissal.

Plaintiff, while working as a lineman for Edison, fell and struck his back against a tree. On the same day he sought treatment for his injury at a medical facility operated by Edison, where he was examined and treated by the co-defendant, Dr. Freeman. Both Edison and the doctor take the position that the latter was in Edison's employ. Plaintiff obtained a workmen's compensation award for a fractured vertebra suffered in the course of his employment based upon an absence of an aggravation of the injury and no working disability. Plaintiff then commenced the present action at law to recover damages for aggravation of such injury, alleging that Dr. Freeman negligently treated him.

Edison based its motion to dismiss the complaint on the ground that under section 5 of the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5) (hereinafter the Act), the exclusive remedy for an employee against his employer for injuries sustained while in line of his duty as an employee, is provided by the Act. Dr. Freeman's motion to dismiss, also grounded on section 5 of the Act, stated the Act relieved him of any liability from any suit by a fellow employee for injuries sustained in the line of the fellow employee's duties.

Dr. Freeman's motion to dismiss was supported by his own affidavit as well as those of Dr. W. Harrison Mehn, Edison's medical director, and Robert L. Stauder, Edison's supervisor of records and benefits. These affidavits recited the following facts: Dr. Freeman had been employed by Edison as a physician for 18 years. He currently was the staff physician at Edison's medical facility located in Lombard, Illinois, where Edison supplies all facilities, staff, and supplies. He was employed on an annual basis and received a monthly salary from Edison. His salary did not depend on the number of employees he treated. Dr. Freeman's personnel status and treatment, including his eligibility for a pension and group medical insurance, were identical to those of other Edison employees. Edison paid social security contributions on his behalf. His duties included medical treatment and examination of Edison employees who sustained injuries during their employment. Neither Edison nor the doctor made any charge for medical services he provided to Edison employees injured at work. Dr. Freeman was employed for a fixed number of hours per week. Dr. Mehn designated the number of hours and also the locations where Dr. Freeman worked. Edison provided the personnel at all facilities to which Dr. Freeman was assigned. These facilities were available only to Edison employees. As medical director, Dr. Mehn had the right to designate who was to be treated, the manner of treatment, and could prescribe all rules and regulations governing treatment of Edison employees, including types of injuries to be treated and when outside consultants could be used. Dr. Mehn had the right to review the performance of doctors employed by Edison and to discharge them.

Plaintiff's motion to vacate the dismissal order was supported by his affidavit reciting that he did not know Dr. Mehn, that he neither consented nor would consent to control of Dr. Freeman's treatment of him by Dr. Mehn. Plaintiff did not consider Dr. Freeman a fellow employee and was not familiar with the details of any contractual arrangements between the co-defendants. The affidavit further stated that Dr. Freeman was engaged by Edison as an employee only in connection with routine and special incident physical examinations such as those Edison required to establish or confirm physical fitness to perform normal duties of employment; that all services by Dr. Freeman as a treating physician for injury or ailment were ordered subject to his professional responsibility to direct and control the manner of treatment; and that Dr. Mehn had no right to control the manner of treatment.

Edison filed additional affidavits relating to Dr. Freeman's status as its employee and referring to payroll records, employee history cards, management payroll advices, and Dr. Freeman's election to obtain a marital service annuity. The trial court denied plaintiff's motion to vacate the order of dismissal.

• 1 Plaintiff initially argues that the aggravation of his back injury was not incurred while he was engaged "in the line of his duty" as an employee within the meaning of section 5(a) of the Act. Since this section is applicable only if the injuries received are compensable, the "line of duty" test has been construed as being identical to the general test of compensability under the Act; that is, covering injuries which "arise out of and in the course of employment." (Sjostrom v. Sproule (1965), 33 Ill.2d 40, 43, 210 N.E.2d 209.) An employer's liability under the Act extends to the aggravation of an injury caused by medical treatment. Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302, 148 N.E. 79.

• 2 In the present case, plaintiff's original back injury undisputedly was incurred in the course of his employment. Moreover, under Illinois case law, the aggravation of that injury, allegedly caused by the malpractice of the treating physician, also was sustained while he was engaged in his line of duty as an employee, whether the damage caused to plaintiff is considered an aggravated injury or a new injury. (Hayes v. Marshall Field & Co. (1953), 351 Ill. App. 329, 115 N.E.2d 99; Greene v. Walgreen Co. (1942), 317 Ill. App. 148, 45 N.E.2d 690 (abstract).) In Hayes, an employee who had a dust particle enter her eye while at work went to a staff physician to have the particle removed. The doctor's attempt to explore the eye with a metal instrument caused the loss of her eyesight. In Greene, an employee given medication for an illness which occurred while she was at work had convulsions and a shoulder injury as a result. In each of these cases, the courts> held that the injuries caused by medical treatment they received occurred in the course of the employee's duties. The trial court in the instant case properly dismissed the suit against Edison.

• 3 So far as the action against Dr. Freeman is concerned, the controlling principle is that section 5 of the Act bars all common law actions by an employee against a fellow employee, where the parties were covered by the Act and the injury arose out of and in the course of employment (Chmelik v. Vana (1964), 31 Ill.2d 272, 201 N.E.2d 434; Williams v. Country Mutual Insurance Co. (1975), 28 Ill. App.3d 274, 328 N.E.2d 117.) Again here, Hayes v. Marshall Field & Co. is directly in point and bars the plaintiff from any right of recovery under a common law negligence theory against Dr. Freeman if the latter was an Edison employee. Plaintiff attempts to minimize the significance of Hayes by arguing that it was based upon former section 29 of the Act which was held unconstitutional in Grasse v. Dealer's Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124. Plaintiff's argument, however, ignores the manner in which the court in Hayes distinguished Grasse. Grasse did not involve an action against plaintiff's employer or a fellow employee. The defendant in Grasse was a third party covered by the Act, but unrelated to plaintiff and his employer. Grasse, as pointed out in Hayes, "does not deal with the rights and liabilities of co-employees"; it does not hold that a co-employee may be liable in a common law action even though his employer is immunized from such an action by the Act. Rather, as the court in Hayes concluded:

"We think the language of the Workmen's Compensation Act treats both employer and employee upon common grounds insofar as any liability exists to answer for damages in an action by a fellow employee." 351 Ill. App. 329, 336.

• 4 The plaintiff contends additionally that Dr. Freeman was not an Edison employee, and so not relieved from liability in the present suit. In determining whether Dr. Freeman was employed by Edison, the predominant factor is whether Edison had the right to control the manner in which he performed his work. (Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615, 71 N.E.2d 70; Nordland v. Poor Sisters of Saint Francis (1955), 4 Ill. App.2d 48, 123 N.E.2d 121.) Other relevant indicia include whether compensation is on a time basis or by the job; the right to discharge; the nature and duration of the occupation; who furnishes materials, equipment and tools, as well as personnel to assist the employee; and the right to control the hours, place and scope of work. Lawrence v. Industrial Com. (1945), 391 Ill. 80, 62 N.E.2d 686; Bristol & Gale Co. v. Industrial Com. (1920), 292 Ill. 16, 126 N.E. 599.

Applying the foregoing criteria to Dr. Freeman, it is clear that he was an Edison employee. His hours of work were regulated by Edison, which also provided places and facilities where he was to perform his work. Edison employed all of his support personnel. He had been employed in the same capacity for 18 years. He was paid on an annual basis, and the salary paid him by Edison did not depend on the number of patients treated or the nature of the treatment. Nor did he charge individual patients. Edison made social security contributions on his behalf. His personnel status was identical to other salaried employees, and he was eligible for annuity and group medical expense insurance provided by Edison to its employees. Dr. Mehn had the right to discharge Dr. Freeman and to control the scope of treatment. It should also be noted that ...

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