Appeal from the Circuit Court of Perry County. No. 10-L-28. Honorable Eugene E. Gross, Judge, presiding.
In an action alleging that plaintiff bus driver was entitled to lost wages on the ground that he was terminated by defendant in retaliation for exercising his rights under the Workers' Compensation Act, the appellate court answered two questions certified by the trial court under Supreme Court Rule 308 by stating that the claim for lost wages made by an employee injured on the job and unable to return to work due to a workers' compensation carrier's delay in approving medical treatment falls within the exclusivity provisions of the Act and not a retaliatory discharge action, and an employer of such a person is not liable for lost wages in a retaliatory discharge action; rather, those damages also fall within the exclusivity provisions.
For Appellant: Darrell Dunham, Darrell Dunham & Associates, Timothy Daniels, Elkville, IL.
For Appellee: Richard B. Korn, Fox Galvin, LLC, St. Louis, MO.
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Goldenhersh concurred in the judgment and opinion.
Bruce D. Stewart, J.
[¶1] The plaintiff brings this interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The plaintiff, Richard William Dale, worked as a bus driver for the defendant, South Central Illinois Mass. Transit District (South Central). Dale filed a complaint against South Central alleging that it fired him in retaliation for exercising his rights under the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2010)). The circuit court granted South Central a motion for summary judgment, in part, on Dale's claim for lost wages. The court then certified two questions of law on which it found that there were substantial grounds for a difference of opinion and that the answers to the questions might materially advance the termination of the litigation. The certified questions are as follows:
" I. Whether an employee who was injured on the job and who is unable to return to work as a result of a workers' compensation carrier's delay in approving medical treatment can recover lost wages in a subsequently filed retaliatory discharge claim or whether damages for such lost wages fall within the exclusivity provision of the Illinois Workers' Compensation Act.
II. Whether an employer who terminates an employee who is physically unable to perform the functions of his job after sustaining an on-the-job injury is liable for lost wages in a subsequently filed retaliatory discharge action when the employee's physical inability to perform the functions of his job was caused by the employer's worker's compensation carrier's delay in approving medical treatment for the on-the-job injury or whether such damages fall within the
exclusivity provision of the Illinois Workers' Compensation Act."
[¶2] We granted Dale's request for an interlocutory appeal for this court to address the circuit court's certified questions of law. We begin our discussion of the certified questions with a brief outline of the procedural history leading up to the circuit court's certified questions.
[¶4] Dale injured his left shoulder in a work-related accident on July 31, 2009. Following the accident, he saw Dr. Angela Freehill, who recommended that he undergo surgery for the injuries to his left shoulder. According to Dr. Freehill, Dale elected not to have surgery but to proceed with nonsurgical management. Dale, however, maintains that the recommended surgery was delayed because South Central improperly disputed his claim of having a work-related injury.
[¶5] Dale has been unable to work since the accident. South Central granted Dale a 12-week leave of absence under the Family Medical Leave Act (29 U.S.C. § 2601 et seq. (2006)). When Dale's 12-week leave of absence expired, South Central terminated his employment on March ...