Appeal from the Circuit Court of Lake County; the Hon.
Terrence J. Brady and the Hon. Robert McQueen, Judges, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Both of these cases present the question of whether an injured employee may bring an action in the circuit court against his employer's workers' compensation insurance company or insurance adjuster, or a physician retained by the insurance company, for failure to furnish the employee with a report of a medical examination conducted under section 12 of the Workers' Compensation Act (hereinafter the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.12), or for improper termination of payments under the Act. The cases have been consolidated for opinion by this court.
In No. 83-1039, Curtis Cook filed a complaint in the circuit court of Lake County against his employer's insurance adjuster, Optimum/Ideal Managers Inc. (hereinafter Optimum). As amended, the complaint alleged that Cook was an employee of Waukegan Tire & Supply Co., and that he received work-related injuries on January 3 and April 27, 1983. Cook was examined at the request of his employer pursuant to section 12 of the Act on at least two occasions. According to the complaint, Optimum stopped making payments to Cook for temporary total incapacity even though Cook's doctor certified that Cook was unable to work because of his injuries. Optimum allegedly stopped paying Cook's medical bills and also refused to pay for his hospitalization, even though Cook's doctor certified that it was required by virtue of his work-related injuries. The complaint further alleged that after one of the medical examinations under section 12, Optimum directed the physician who examined Cook not to furnish him with a copy of the examination report. After another examination, Optimum obtained the report and "secreted" it so that it was not available to Cook. All of these actions were allegedly taken by Optimum to interfere with Cook in the exercise of his rights under the Act. More specifically, the actions were allegedly taken because Cook retained an attorney to represent him in connection with his claim under the Act, and because he demanded copies of the reports of medical examinations conducted pursuant to section 12. Finally, the complaint alleged that as a direct result of Optimum's conduct, Cook suffered economic loss and was delayed in the presentation of his claim under the Act. Actual and punitive damages were sought.
Optimum moved to dismiss the complaint on the grounds that it failed to state a cause of action, and that Cook had failed to exhaust his administrative remedies before the Industrial Commission. The trial court granted Optimum's motion, and Cook appealed.
In No. 84-26, Lee R. McTarsney filed a complaint in the circuit court of Lake County against his employer's insurance company, Insurance Company of North America (hereinafter INA), and Dr. James Ryan. As amended, the complaint included three counts.
Count I was against INA. It alleged that McTarsney was an employee of Petrolane, Inc., who received a work-related injury and had been unable to work since December 29, 1981. Pursuant to section 12 of the Act, INA requested McTarsney to submit himself for an examination by Dr. Ryan on March 30, 1982. Prior to the examination, McTarsney sent Dr. Ryan a written request for a copy of the examination report. According to the complaint, however, INA directed Dr. Ryan not to comply with McTarsney's request. Dr. Ryan did not send McTarsney a copy of the report when it was prepared and mailed to INA on April 7, 1982. The complaint further alleged that INA knew that withholding the report would damage McTarsney in two ways. First, INA knew that McTarsney was facing surgery on his arm, and that his treating physicians would not have access to the report. Second, the attorney representing McTarsney before the Industrial Commission would not be able to use the information in the report to protect his legal rights.
Count I further alleged that on April 19, 1982, INA stopped making payments to McTarsney for temporary total incapacity even though he was totally disabled because of the injury and surgery. McTarsney's condition of total disability was fully substantiated by the investigation conducted by INA. The payments were allegedly terminated for the purpose of penalizing McTarsney for requesting a copy of the medical examination report.
Count I sought actual and punitive damages from INA for the withholding of the medical examination report and the improper termination of payments for temporary total incapacity.
In count II McTarsney sought injunctive relief against INA in connection with the withholding of the medical examination report. According to the complaint, it was the policy of INA to require the physicians it retained for the purpose of conducting medical examinations under section 12 not to send copies of the report to the employee. Count II sought an injunction ordering INA to refrain from directing physicians to withhold the reports.
Count III was against Dr. Ryan. It sought compensatory and punitive damages for his failure to turn over a copy of the report.
Dr. Ryan moved to dismiss on the basis that the exclusive remedy for the conduct complained of would be in proceedings before the Industrial Commission. That motion was granted by the trial court. Subsequently, INA filed a motion to dismiss. The motion alleged that the complaint failed to state a cause of action, and that McTarsney had failed to exhaust his administrative remedies before the Industrial Commission. INA's motion contended that the allegations concerning the medical report were moot since INA had given McTarsney a copy of the report after the lawsuit was filed. The trial court granted INA's motion to dismiss, and McTarsney brought the case to this court.
Since both cases are here on appeal from orders dismissing the complaints, all well-pleaded facts will be taken as true, and the orders of dismissal will be affirmed only if it is apparent that no set of facts could be proved that would entitle the plaintiffs to relief. Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill.2d 379, 432 N.E.2d 849.
Before addressing the arguments of the parties based on the above pleadings, it will be helpful to set out the relevant provisions of section 12 of the Act which describe the nature and purposes of the medical examinations involved herein. Section 12 provides:
"An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, * * * for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation ...