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Goetzke v. Ferro Corporation

February 06, 2002

DAVID GOETZKE, PLAINTIFF-APPELLANT
v.
FERRO CORPORATION AND CRAWFORD & COMPANY, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 99 C 398--James T. Moody, Judge.

Before Flaum, Chief Judge, and Ripple and Williams, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED OCTOBER 22, 2001

Ferro Corporation ("Ferro") terminated David Goetzke in August 1997 on the ground that he had defrauded it by exaggerating the extent of a work-related injury. In response to his termination, Mr. Goetzke filed this multi-count action in state court against Ferro and Crawford & Company ("Crawford"), a third-party administrator retained through Ferro's insurance carrier to administer worker's compensation claims brought by Ferro employees. In Count I, Mr. Goetzke alleged that Ferro had terminated him in retaliation for filing a worker's compensation claim. Count II of the complaint asserted that Crawford had tortiously interfered in Mr. Goetzke's employment relationship with Ferro. In Count III, Mr. Goetzke alleged that Ferro and Crawford had conspired to end his employment. After removal of the case to the federal system, the district court granted summary judgment to Ferro and Crawford on all counts. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts

On August 11, 1996, Mr. Goetzke sustained a work-related injury to his lower back while employed at Kiel Chemical, a subsidiary of Ferro Corporation. Upon learning of Mr. Goetzke's injury, Ferro officials promptly filed a worker's compensation claim on his behalf. Over the next year, Mr. Goetzke spent extended periods on medical leave from Ferro as a result of the injury.

In the weeks following the injury, the company placed Mr. Goetzke on "light duty"--assigning him jobs that did not require heavy lifting. Initially, the light duty required Mr. Goetzke to train a fellow employee. Although these sessions did not require any lifting, the assignment required Mr. Goetzke to stand and to walk for substantial portions of a twelve-hour shift. Roughly six days into this job, Mr. Goetzke informed his foreman that the length of the shifts and nature of the assignment aggravated his back injury. After Mr. Goetzke consulted with a physician, Ferro moved him from "light duty" to "sedentary duty"--a desk position. The new assignment required Mr. Goetzke to work only an eight-hour shift.

During September and mid-October, Mr. Goetzke spent several days on medical leave. When Mr. Goetzke returned from an excused absence in October 1996, Steve Hartford, the company's safety training supervisor, contended that he smelled alcohol on Mr. Goetzke. Ferro therefore ordered Mr. Goetzke to undergo an alcohol test. The test, however, returned negative, and Ferro never pursued this incident any further.

When his injury failed to improve, Mr. Goetzke returned to medical leave in November 1997. Over the next ten months, Mr. Goetzke clashed over his medical care with his doctors and Crawford. Mr. Goetzke particularly expressed frustration with Betty Foy, his case manager from Crawford. Mr. Goetzke believed that Foy often clandestinely overruled his physicians' prescribed course of treatment. As a case manager, Foy not only monitored Mr. Goetzke's treatment but also served as an information conduit between his physicians and Crawford's claims adjustor. For instance, Foy accompanied Mr. Goetzke to his doctor's appointments. At each appointment, the responsibility fell to her to clarify with the physicians when Mr. Goetzke could return to work. In turn, she relayed this information to Crawford's adjustor and frequently to Ferro's Steve Hartford.

After physical therapy and injections failed to alleviate his pain, Mr. Goetzke underwent back surgery in March 1997. Foy informed Hartford that the recovery period for this procedure generally lasted three to four months. Two months into his recovery, Mr. Goetzke still complained of back pains to his physician. Specifically, during a doctor's appointment in May, Mr. Goetzke informed his physician that he had not been the same since he had sneezed and then heard a popping noise in his back soon after the surgery.

Upon receiving this information, Steve Hartford contacted Yadwiga Duncan, the Crawford claims adjustor handling Mr. Goetzke's file. Hartford believed that Mr. Goetzke was now exaggerating his symptoms and requested that Crawford hire an investigator to conduct surveillance of Mr. Goetzke. Pursuant to Hartford's request, Crawford employed an investigator who recorded Mr. Goetzke for two days in June 1997. The surveillance recorded Mr. Goetzke in a variety of activities including carrying and loading groceries into his vehicle. Crawford for warded the tape to Hartford.

Meanwhile, concluding that Mr. Goetzke had reached a plateau in his recovery,*fn1 his physician, in consultation with Foy, scheduled a functional capacity evaluation ("FCE") for him. Conducted by an independent physician evaluator, the FCE is a battery of physical tests that assesses whether an injured employee is able to return to work and in what capacity. Hartford requested that an investigator conduct surveillance of Mr. Goetzke the day before the FCE. This surveillance, conducted in mid-July, captured Mr. Goetzke in a variety of activities. In particular, Mr. Goetzke worked on his car--leaning under the hood for several minutes. When the hood failed to close properly, Mr. Goetzke repeatedly pressed down on it with both hands. The July tape also pictures Mr. Goetzke stretching across the front seat of his truck while his feet dangled awkwardly from the vehicle. The tape was forwarded to Ferro.

Soon after, the evaluator performed the FCE and sent the results to Mr. Goetzke, Ferro, Crawford and Betty Foy. The cover letter of the FCE stated "Mr. Goetzke did magnify his symptoms and his ability may be greater than what the data on the test indicates." Dep. V.3, Ex.4. In addition, the summary report noted thirteen inconsistencies between Mr. Goetzke's stated symptoms and his conduct during the evaluation. The evaluator assigned Mr. Goetzke a "6" on a scale of "0-7" on the Waddell Symptom Magnification Evaluation.*fn2 One line of the full report, however, noted

[I]t is my opinion that [Mr. Goetzke] is UNABLE to perform work at the Medium level . . . . HOWEVER, I DO BELIEVE THE CLIENT IS MAGNIFYING THE PAIN SYMPTOMS IN AN UNCONSCIOUS EFFORT TO CONTROL THE ENVIRONMENT. Dep. V.3, Ex.4.

Although the report indicated that Mr. Goetzke was limited in the range of tasks he could perform, the FCE suggested that he be placed in a work hardening program to restore his capabilities. In conclusion, the report stated that "if [Mr. Goetzke] responds positively and improves quickly, I WOULD release the client to return to work sooner than the prescribed period." Dep. V.3, Ex.4 (emphasis in original). Accordingly, Mr. Goetzke's physician scheduled his patient for work hardening in mid-August.

In late July, approximately one week after receiving the results of the FCE, Mr. Goetzke filed an application for assistance with the Indiana Industrial Board.*fn3 In this letter, Mr. Goetzke questioned the quality of the care that he received. More precisely, he alleged that Foy interfered with his doctor's orders and failed to stay abreast of his test results. Finally, Mr. Goetzke challenged the FCE as "biased" and "inaccurat[e]." R.26, Ex.M. The letter made no reference to Ferro. Crawford learned of Mr. Goetzke's application for assistance on August 13, 1997. It relayed this information to Hartford at Ferro.

After completing his work hardening in mid-August, Mr. Goetzke returned to work on light duty pursuant to his doctor's orders. However, upon Mr. Goetzke's arrival at work, Ferro officials informed him that he was being terminated for defrauding the company. According to com pany officials, the contents of the videotape and Mr. Goetzke's FCE had warranted this action.

B. District Court ...


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