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Mccormick v. Caterpillar Tractor Co.





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Wayne C. Townley, MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

On January 16, 1976, Max McCormick injured his left foot during the course of his employment at the Caterpillar Tractor Company in Peoria. He was first treated at the plant by Dr. M.E. Godby, who was one of a number of licensed physicians employed by Caterpillar Tractor on a full-time basis. After concluding from an X-ray examination that McCormick's left foot was not fractured, Dr. Godby attributed the swelling and tenderness in the foot to a strain. He told the claimant to return to work and also instructed him to wrap the foot and apply ice to it. On February 9, McCormick returned to the main medical-treatment room of the company, where the foot was examined by Dr. L.B. Patalinghug, another physician employed by the respondent. The left foot was still swollen in the region of the second and third metatarsal bones, and Dr. Patalinghug prescribed whirlpool treatments and told McCormick to return to work.

One week later, he again returned to the treatment room, complaining of aggravated swelling in his foot, and was seen by Dr. M.T. Neu, another company physician. Dr. Neu was of the opinion that the slowness in healing was due to continued stress from walking and similar activities. He, nevertheless, directed the claimant to wrap his foot with an elastic bandage and return to duty.

The pain and swelling did not subside, and on February 23, McCormick returned to the main treatment room, where he was treated by Dr. Patalinghug. Upon detecting an increase in the skin temperature at the swollen portion of the left foot, she referred McCormick to Dr. Flaherty. His examination disclosed a stress fracture of the second and third metatarsal bones of the left foot. McCormick filed a claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), and the Industrial Commission made an award in favor of McCormick for 25% permanent loss of use of his left foot.

Subsequent to the entry of this award, McCormick filed two lawsuits in the circuit court of McLean County, which were later consolidated. The suits named as defendants Caterpillar Tractor and Drs. Neu, Godby, and Patalinghug and alleged negligence in the diagnosis and treatment of McCormick's injury. The court allowed a motion to dismiss as to Caterpillar Tractor and Dr. Neu and granted a motion for summary judgment as to Drs. Godby and Patalinghug. The appellate court, with one judge dissenting (82 Ill. App.3d 77), held that the exclusive-remedy provision of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a)) did not bar a common law suit in tort against Caterpillar Tractor. Citing this court's decision in Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313, and Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8, the court held that by furnishing medical services to its employees directly rather than having them provided at outside facilities by private medical personnel, Caterpillar Tractor subjected itself to tort liability under the "dual capacity" doctrine. The court held, too, that the exclusive-remedy provision of the compensation act, as applied to co-employees, could not be "abrogated" by the doctrine, and it affirmed the dismissal of the suit against Drs. Neu, Godby, and Patalinghug. We granted Caterpillar Tractor's petition for leave to appeal. 73 Ill.2d R. 315(a).

The question for us is whether an employee whose injury arose out of and in the course of employment is barred by the exclusive-remedy provision of the Workmen's Compensation Act from recovering damages in a negligence action against the employer-company for aggravated injuries sustained in medical treatment by employees of the same company.

The design underlying the Workmen's Compensation Act was that the cost of industrial injuries should be borne by industry and not by the injured employee or by the general public. Thus our act provides that if an employee's injury arises out of and in the course of employment it is compensable, and questions of negligence, contributory negligence, and assumption of risk are not to be considered. Balanced against the imposition of no-fault liability upon the employer are statutory limitations upon the amount of the employee's recovery, depending upon the character and the extent of the injury. As part of this "balancing," the Act further provides that the statutory remedies under it shall serve as the employee's exclusive remedy if he sustains a compensable injury.

Section 5(a) of the Act provides:

"No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee * * * other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury." Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).

Section 11 of the Act states:

"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act." Ill. Rev. Stat. 1977, ch. 48, par. 138.11.

In relatively recent years an exception to the exclusive-remedy provision of the Workmen's Compensation Act has developed under what has come to be called the dual-capacity doctrine. Professor Larson, in his treatise on Workmen's Compensation Laws states: "Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer." (2A A. Larson, Workmen's Compensation sec. 72.80, at 14-112 (1976).) The doctrine of dual capacity was applied by this court in Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313.

Under the circumstances here the doctrine will not permit the plaintiff to maintain a negligence action against the employer. The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer's conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company's or individual's first role as an employer. If the obligations are related, the doctrine is not applicable.

Our workmen's compensation act requires that an employer "provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury." (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The respondent here, in providing medical services to its employees, was meeting a duty imposed upon it as an employer under the Workmen's Compensation Act. That it chose to provide the services directly rather than through physicians hired independently does not alter the fact that medical services were rendered in response to the Act in its capacity as an employer. Larson states that it is clear that dual capacity will not be found simply because an employer has a number of departments with separate functions and operations. 2A A. Larson, Workmen's Compensation sec. 72.80 (1976).

The majority of the appellate court panel in this case relied strongly on Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8. There the plaintiff was employed as a practical nurse at her employer's clinic and was injured in the handling of a patient. She was treated by her employer, Dr. Shane, a chiropractor, and another chiropractor employed by him. She later filed a personal injury suit against both chiropractors, whose treatments, she claimed, had aggravated her injury. The court held that her suit was not barred by the exclusive-remedy provision in California's workmen's compensation act. Upon first observing that a compensation award would not bar a personal injury suit against an independent physician engaged by an insurance company, the court stated: "[I]t would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a `person other than an employer' within the meaning of * * * [the] Labor Code. * * * In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to * * * [plaintiff] was that of doctor and patient." (39 Cal.2d 781, 793, 249 P.2d 8, 15.) Here Caterpillar Tractor provided treatment on the basis of the employer-employee relationship and not as a treating physician.

We would observe also that in Dixon v. Ford Motor Co. (1975), 53 Cal.App.3d 499, 507, 125 Cal.Rptr. 872, 877, it was said that California courts>, in decisions subsequent to Duprey v. Shane, refused to extend its doctrine to different factual contexts. The court cited a treatise on workmen's compensation laws in California to the effect that "`The Duprey case represented a unique situation in which the employer was also a doctor. Subsequent attempts to extend its holding were unsuccessful.'"

The circumstances in Dixon strongly resemble those here. A widow brought a wrongful death action against the Ford Motor Company and two employees of its medical staff for what she claimed was negligent treatment of her husband in the employer's first-aid station, which she said caused her husband's death. The court held that the dual-capacity doctrine was inapplicable and that the exclusive remedy was under the workmen's compensation statute. Among the cases cited by the court was Deauville v. Hall (1961), 188 Cal.App.2d 535, 10 Cal.Rptr. 511. There, where an employer had furnished medical treatment to an injured employee, it was claimed that the employee should be permitted to file an independent action where his original compensable injury "was aggravated by the carelessness of an unqualified doctor" and that the negligence of other medical personnel in diagnosing the employee's injury "[gave the employer] a status separate and apart from that of the employer * * *." (188 Cal.App.2d 535, 540, 10 Cal.Rptr. 511, 514.) The court rejected this argument and, in holding that the workmen's compensation act provided the claimant's exclusive remedy, stated that "there is nothing in the Act or the authorities to warrant an action in a court of law against an employer for the latter's negligence in providing * * * medical treatment." 188 Cal.App.2d 535, 540-41, 10 Cal.Rptr. 511, 514.

Also, in Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So.2d 244, the Supreme Court of Mississippi held that an employer could not be liable under the dual-capacity doctrine for the negligence of employees at its first-aid station in treating an employee's industrial injury. The court rejected the claim that under Duprey the plaintiff could recover and, in holding that the exclusive-remedy provision of the workmen's compensation statute precluded the plaintiff's recovery, cited Dixon v. Ford Motor Co. The court relied too on Warwick v. Hudson Pulp & Paper Co. (Fla. App. 1974), 303 So.2d 701, in which the court refused to allow, under the dual-capacity doctrine, a recovery for the alleged negligence of staff nurses, employed by the company, who had treated the employee's industrial injury in the company's clinic.

For the reasons given, we hold that the Workmen's Compensation Act provided the sole means of recovery for the plaintiff's compensable industrial injury. That portion of the judgment of the appellate court which held that Caterpillar Tractor could be sued under the dual-capacity doctrine is reversed. Since no petition for leave to appeal was filed as to the appellate court's affirmance of the circuit court of McLean County's action dismissing the plaintiff's suits as to Drs. Neu, Godby, and Patalinghug, there is no question before us as to them.

Appellate court affirmed in part and reversed in part; ...

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