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03/21/89 Gene Hannah, v. Midwest Center For

March 21, 1989





536 N.E.2d 888, 181 Ill. App. 3d 67, 129 Ill. Dec. 838 1989.IL.367

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. EGAN, P.J., and BILANDIC, J., concur.


Plaintiff brought this action against defendants to recover damages for their allegedly misrepresenting to a claims adjustment firm the medical opinion of plaintiff's treating physician. The trial court granted defendant Marshall Matz' motion for summary judgment after determining that there was "not one shred of evidence presented to [him] in the file that [indicated] that Matz had anything to do with these events." A motion for summary judgment brought against plaintiff by Cullen and Midwest was denied by the circuit court. On plaintiff's appeal, the issue is whether the court properly awarded summary judgment to Matz in light of his motion, the materials in support thereof, and the inferences reasonably to be drawn therefrom.

Having suffered a series of three injuries to his lower back, plaintiff sought workers' compensation benefits from his employer, Nehi Royal Crown Corporation (Nehi). Nehi was self-insured and utilized the services of the Martin Boyer Company to investigate and adjust plaintiff's claims; Robert Shapin was the Martin Boyer claims agent administering plaintiff's case.

In the course of his treatment by various physicians, plaintiff was hospitalized repeatedly and underwent surgery on his lower back twice. Shapin, as is permitted by Illinois law, had plaintiff examined twice by Matz, a neurosurgeon of Martin Boyer's choice, for evaluations as to disability. Matz first saw plaintiff on February 13, 1980, and reported his findings to Martin Boyer on his medical service corporation letterhead: M.I. Matz, M.D., and D.M. Shenker, M.D., S.C. Matz was not plaintiff's treating physician. Plaintiff was then under the care of Dr. W. Patrick Smyth, but on February 21, 1980, he came under the treatment of Dr. Dale Vachout, who thereafter remained his doctor for the entire period pertinent to this case.

During the year 1980, plaintiff received rehabilitational counseling from a Mr. Pindelski of International Rehabilitation Associates , who, during the period of such counseling, helped plaintiff obtain a job as an inventory control person and bottle labeler. IRA's services were provided at the request of plaintiff's counsel, and Martin Boyer approved payment therefor; but IRA's efforts proved unsuccessful when plaintiff became incapable of performing the duties required of him in his new position.

In November 1980, plaintiff underwent a laminectomy performed by Dr. Hernando Torres, and after a period of post-operative recovery, plaintiff saw Matz for his second medical evaluation. Immediately following the examination, Matz reported his findings to Martin Boyer in a letter written on his medical service corporation letterhead -- the same procedure that he followed after the first examination.

In February of 1981, Shapin referred plaintiff to the Midwest Center for Disability Evaluation, Inc. (Midwest), for rehabilitation services. Andrea Cullen was the specialist at Midwest assigned to handle plaintiff's rehabilitation program; Matz was the owner and incorporator of Midwest, which was not legally formed until December of 1980 and did not begin to do business until January 1, 1981.

On March 19, 1981, plaintiff attempted to return to work at Nehi as a checker, a position that involved counting merchandise contained in trucks before they left Nehi's premises. However, he was physically unable to perform the tasks required by this job, as it demanded bending, climbing and twisting, so he left work that day and saw or spoke to Dr. Vachout on March 20, 1981.

On March 20 or 21, 1981, Cullen had a telephone conversation with Shapin, during which she reported that she had spoken with Dr. Vachout, who informed her that plaintiff had a psychological motivation not to return to work -- essentially "pain for gain," as she characterized it. She further reported that Dr. Vachout held the opinion that continued vocational rehabilitation was useless, that plaintiff would not return to work until his case was settled, and that plaintiff was not a "permanent total." She wrote a report, dated March 23, 1981, to Shapin which included the statements allegedly made by Dr. Vachout. As a result of Cullen's report, Shapin told her to close the file and cease rehabilitation. Dr. Vachout denied making the statements.

Plaintiff then filed suit against Cullen, Midwest, and Matz, alleging in essence that their false reporting of Dr. Vachout's statements resulted in the wrongful termination of plaintiff's workers' compensation benefits and in his loss of future opportunities for employment. Neither of the two counts of the complaint alleges that Matz is liable as Cullen's employer under a respondeat superior theory, but that Matz himself had either negligently misrepresented Dr. Vachout's opinion to Martin Boyer, or had willfully participated in or authorized Cullen's false report. Matz filed an answer denying all allegations of wrongdoing. The issue on ...

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