Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.

606 N.E.2d 572, 238 Ill. App. 3d 741, 179 Ill. Dec. 740, 1992 Ill. App. LEXIS 1911
CourtAppellate Court of Illinois
DecidedNovember 25, 1992
DocketNo. 1—91—0323
StatusPublished
Cited by4 cases

This text of 606 N.E.2d 572 (Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 606 N.E.2d 572, 238 Ill. App. 3d 741, 179 Ill. Dec. 740, 1992 Ill. App. LEXIS 1911 (Ill. Ct. App. 1992).

Opinions

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Steven and Helen Solich, filed suit in the circuit court of Cook County to recover damages caused by the alleged negligence of the defendants, U.S. Steel Corporation and Portes Cancer Prevention Center, for failing to report to Steven Solich the findings of a chest X ray. Codefendant Portes filed a cross-claim against U.S. Steel for equitable apportionment. U.S. Steel and Portes now appeal from the jury’s verdict for the Soliches and U.S. Steel further appeals from the jury’s apportionment of the verdict, 99% to U.S. Steel and 1% to Portes.

Among numerous contentions, U.S. Steel argues that the exclusivity provisions of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) barred the Soliches’ lawsuit. Portes claims that the Soliches’ suit should have been dismissed based upon the medical malpractice statute of limitations, challenges the sufficiency of the evidence, and alleges other errors at trial.

Steven Solich became employed by U.S. Steel in 1948 as a millwright helper. In 1968, he was promoted to a foreman and subsequently became entitled to take advantage of the employee benefit of an optional yearly management physical paid for by U.S. Steel. The physical examinations were normally conducted at the plant’s own medical clinic. However, in 1975, the clinic was understaffed and U.S. Steel contracted with the Portes Cancer Prevention Center to perform the physicals, which included various laboratory tests and a chest X ray. The results of the employee’s physical were to be reported to U.S. Steel’s medical director after the employee signed a release form authorizing Portes to do so. The employee could also have the results sent to his or her family physician or residence.

In 1975, Solich participated in the management physical program. U.S. Steel arranged for his physical to be conducted at Portes, Solich signed a release form, and the results were sent directly to U.S. Steel’s medical director and were ultimately retained at U.S. Steel as part of Solich’s permanent medical record. Solich’s 1975 chest X ray results read: “chest X-ray, interpretation normal *** lungs, fibrosis.” These results were not discussed with him. Various experts testified at trial and presented conflicting opinions as to whether the finding of fibrosis in Solich’s 1975 X ray was clinically significant. Solich had other management physicals in 1976 and 1977. His 1977 chest X ray indicated a finding of “increase in hilar markings.” His 1982 management physical revealed the presence of silicosis in his lungs and he was referred by U.S. Steel to another physician at Northwestern University. Solich retired from U.S. Steel due to his lung condition in 1982.

Solich filed a claim under the Workers’ Compensation Act for injuries allegedly sustained while he was employed at U.S. Steel, namely, hearing loss and pulmonary disease, including silicosis and asbestosis. In 1983, Solich settled with U.S. Steel for compensation for his injuries and the settlement was approved by the Industrial Commission. In 1984, Solich brought the action at issue against U.S. Steel and Portes, alleging that their failure to report to him the results of the 1975 X ray indicating fibrosis aggravated his lung condition which eventually resulted in silicosis. Helen Solich filed a separate claim for loss of consortium.

U.S. Steel contends that Solich’s action was barred by the exclusive-remedy provision of the Worker’s Compensation Act. The Act bars a common law action by an employee against his employer or co-employees “for injury or death sustained by any employee while engaged in the line of his duty as such employee.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) To be compensable under the Act, the injuries sustained by the employee must be “arising out of and in the course of his employment.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.1(b)(2).) “Arising out of” refers to the causal connection between the employment and the injury. The causal connection is demonstrated if the claimant establishes that the injury’s origin lies in some risk related to the employment. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 480, 548 N.E.2d 1033; Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 85, 481 N.E.2d 684; Scheffler Greenhouses, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 361, 366, 362 N.E.2d 325.) “ ‘In the course of’ employment” refers to the time, place, and circumstances under which the injury is received. (Scheffler Greenhouses, 66 Ill. 2d at 366-67, 362 N.E.2d at 327.) An injury will generally be found to arise “in the course of employment” when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and when he is fulfilling those duties or engaged in something incidental thereto. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 278, 201 N.E.2d 434.) Each claim for compensation must be determined on its own facts. Campbell “66” Express, Inc. v. Industrial Comm’n (1980), 83 Ill. 2d 353, 357, 415 N.E.2d 1043.

In the instant case, the injury complained of is the aggravation of Solich’s work-related lung disease due to the failure of U.S. Steel and Portes to report to him the finding of fibrosis in his 1975 X ray. Solich argues that his injury did not arise out of his employment because his physical examination was entirely voluntary and was not a condition of employment.

Given the facts in this case, we cannot conclude that simply because Solich’s physical was not mandatory, the injury did not arise out of his employment. The Illinois Supreme Court has addressed a very similar factual situation in Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 481 N.E.2d 684. The plaintiff in that case filed a medical malpractice action against a co-employee physician and his employers based on the physician’s alleged failure to properly diagnose the plaintiff’s nonwork-related lung cancer during an employer-sponsored physical. A factual dispute existed as to whether the physical was mandatory or voluntary. Even though the lung cancer was not work-related, the court found a sufficient causal nexus between the plaintiff’s employment and the physician’s failure to diagnose his lung cancer and concluded the injury arose out of his employment.

We find the difference between the instant case and Unger with respect to the voluntariness of the physical to be irrelevant in establishing the requisite causal nexis. A sufficient causal connection was demonstrated between Solich’s employment and U.S. Steel’s failure to report the finding of fibrosis in his 1975 chest X ray. U.S. Steel provided the physicals for the benefit of the employment relationship. Solich was benefited by having his physical condition examined and U.S. Steel was benefited by ensuring the continued good health of its employees. U.S. Steel made the arrangements and paid for Solich’s 1975 physical at the Portes Center. U.S.

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Related

Solich v. PORTES CANCER PREVENTION CENT.
652 N.E.2d 1211 (Appellate Court of Illinois, 1995)
Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.
273 Ill. App. 3d 977 (Appellate Court of Illinois, 1995)

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Bluebook (online)
606 N.E.2d 572, 238 Ill. App. 3d 741, 179 Ill. Dec. 740, 1992 Ill. App. LEXIS 1911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solich-v-george-anna-portes-cancer-prevention-center-of-chicago-inc-illappct-1992.