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Workers Comp Retaliatory Tort

Claim Remanded for Trial


Role of Employer’s Insurer

was Key: Court


            When injured on the job at United Steel Deck Inc. on May 11, 2001, Terry Siekierka, took absence from work three days later, and filed a workers comp claim.  His doctor scheduled him for a recommended surgery for June 11, but the company’s insurer told Siekierka’s physician that the operation was not authorized.  Human Resources wrote the employee on July 31, advising him that he had been off work since May 14 and that his FMLA leave would run out August 6.  HR added that the company would be willing to extend his leave one month, until the end of August 2001, but that if he failed to return to work at the end of August he would be dismissed and put on COBRA coverage.  At some point prior to the surgery, Sierkerka claimed, he had told United Steel of the need for surgery and that he would be out between four and eight weeks.  

         The surgery proceeded on August 15, 2001 and by a letter dated August 31 United Steel fired Siekierka.  He tendered a full-duty medical release to return to work in the following November but the company was not hiring.  He then sued for retaliatory discharge tort and the trial court entered summary judgment for United Steel.

 In reversing, the appeals court found that a jury could make an inference of retaliatory motive, proving a causal link between the workers comp claim and the discharge.  The court pointed to United Steel’s insurer, who had set in motion a process that made it virtually impossible for Siekierka to return to work within the time allowed by United Steel.   When it refused to authorize the surgery and instead required that the plaintiff be examined by the insurer’s IME – who was unavailable for four weeks, the insurer in effect barred him from scheduling a surgery and recuperation until after the leave time ran out. 

 In other words, he had to choose between his rights to have a surgery under the Workers Compensation Act or to endeavor to return to work without this treatment.  This choice, the court ruled, violated the common law of retaliatory discharge tort.  Terry L. Siekierka v. United Steel Deck, Inc., ___IllApp3d___, No, 3-06-0365 (3rd Dist, May 2007).