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THIRD DIVISION

July 25, 2001

(Nunc Pro Tunc June 6, 2001)

No. 1--00--0730

JUSTICE BURKE delivered the opinion of the court:

Plaintiffs Robin and Elizabeth Senesac appeal from an order ofthe circuit court dismissing their second amended complaint againstdefendants Employer's Vocational Resources, Inc. (EVR), CCM, Inc.,d/b/a Creative Case Managment (CCM), and State Farm Fire andCasualty Company (State Farm), alleging negligence and intentionalinfliction of emotional distress, pursuant to section 2--619 of theIllinois Code of Civil Procedure (735 ILCS 5/2--619 (West 1998)). The trial court granted defendants' motions to dismiss based on itsfinding that plaintiffs' common law claims were barred by theexclusivity provision of the Illinois Workers' Compensation Act. On appeal, plaintiffs contend that the exclusivity provision of theWorkers' Compensation Act does not bar their common law claimsalleging intentional conduct by defendants and that theirallegations sufficiently pled a cause of action for intentionalinfliction of emotional distress. For the reasons set forth below,we affirm in part, reverse in part, and remand.

On November 24, 1999, plaintiffs filed a 12-count secondamended complaint (complaint).⁽¹⁾ Plaintiffs alleged that on June20, 1996, Robin injured his back while employed as an appliancerepairman for Bade Appliance where he had worked for 16 years. Robin was entitled to receive certain payments which included, butwere not limited to, disability payments from Bade Appliancethrough State Farm pursuant to a workers' compensation insurancepolicy issued by State Farm to Bade Appliance. State Farm arrangedfor EVR to provide Robin with vocational rehabilitation and jobplacement service. Plaintiffs alleged that they relied on CCM'sassurances that the services provided would likely lead to Robin'sreturn to gainful employment. Counts I through III were claimsagainst each defendant, individually, for "[failure] to meet thestandard for providers of job placement services and [causing]physical, mental and emotional harm to [Robin] ***." Plaintiffsalso alleged the following: defendants failed to provide jobretraining to Robin with the knowledge that such a failure wouldresult in Robin's continued inability to secure employment and"psychological injury" to Robin; certain vocational specialistswere aware of Robin's "deteriorating mental state" as a result ofhis repeated rejections by potential employers and because theservices were provided in a manner that would likely lead to morerejections; and defendants "directed, advised, and required" Robinto seek employment in positions for which he was not qualified orhe was unable to physically perform, such as positions requiringlifting weights greater than his 25-pound lifting limit, crouchingor bending, excessive standing, or skills and experience that hedid not possess.

Plaintiffs' complaint further alleged: defendants' jobplacement services required Robin to make 25 "in person employercontacts" per week in addition to the contacts provided by the jobplacement specialists; Robin applied to over 1,400 businesses andwas rejected or failed to obtain employment with any of them; hewas required to apply to businesses located over 60 miles from hisresidence; defendants required him to apply for jobs beyond histraining and experience or that were "medically inappropriate";defendants required him to apply for positions with businesses thatwere not currently hiring; he was required to apply for jobs thatwere "demeaning" and would not provide income necessary to supporthis family; defendants failed to recommend retraining; anddefendants failed to deal with him fairly and in good faith. Thecomplaint further stated that as a result of the alleged acts andomissions of defendants, Robin was "diagnosed with depression dueto emotional distress resulting from his inability to findemployment after applying for over 1,400 jobs, and was at risk tobe unemployed as a result of said emotional distress anddepression." Plaintiffs also alleged that on May 11, 1998, Robinwas admitted to a hospital as a mental patient and diagnosed withacute depression, sleeplessness, suicidal ideation, andhopelessness. These conditions were attributed to frustration fromhis employment search.

In counts IV through VI, the above allegations were also madein support of plaintiffs' claims against each individual defendantfor intentional infliction of emotional distress. Counts VIIthrough XII were claims by Elizabeth against each defendant forloss of consortium based on the same allegations contained in theprior counts.

State Farm filed a motion to dismiss plaintiffs' complaintpursuant to section 2--619 of the Illinois Code of Civil Procedure. State Farm argued that any duty that it owed Robin was created onlythrough its provision of workers' compensation insurance to hisemployer, Bade Appliance. Citing sections 8 and 19(k) of theIllinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq.),State Farm argued that plaintiffs' claims arose out of itsprovision of benefits under the Act and that the claims, therefore,were barred by the "exclusive remedy" provision of the Act. StateFarm also argued that plaintiffs failed to exhaust theiradministrative remedies under the Act.

CCM also filed a section 2--619 motion to dismiss plaintiffs'complaint. CCM contended that Robin would not have been involvedwith CCM "but for" his original back injury while working for BadeAppliance. According to CCM, because State Farm, Bade Appliances'insurer and agent, directed Robin to participate in CCM'srehabilitation services and receive disability checks, Robin'srelationship with CCM was the result of his employment rather thana personal choice. CCM argued, therefore, that the Act barredplaintiffs' claims. EVR also filed a section 2--619 motion todismiss plaintiffs' complaint, arguing that, according to theallegations of the complaint, its duty to Robin arose from the factthat State Farm was providing workers' compensation benefits to himand that EVR was State Farm's agent. EVR similarly argued as theother defendants had that the exclusivity provision of the Actpreempted plaintiffs' claims.

In their response, plaintiffs contended that the Act does notinsulate an employer, or its insurer and agents, from common lawliability for "any tortious action, including intentional" actsagainst an injured employee. They argued that the exclusive remedyprovision cited by defendants did not apply because the complaintalleged that plaintiffs' injuries arose from "affirmative andoutrageous" conduct and were not merely the result of a delay inpayment of disability benefits. Plaintiffs further argued thatrequiring the "industry" to pay for defendants' intentional conductunjustly shifted the cost to Robin's employer, which had not beeninvolved in the conduct underlying the allegations of thecomplaint. Plaintiffs claimed that such a result was alsoinconsistent with the purpose of the Act. Plaintiffs maintainedthat their allegations in the complaint were sufficient to state aclaim for intentional infliction of emotional distress because theyhad alleged that defendants were in a position of authority overRobin, there was no legitimate purpose for defendants' actions, anddefendants were aware that Robin was susceptible to emotionalstress because of his disability. Plaintiffs also argued that theAct did not bar their claims for vocational rehabilitationmalpractice against CCM and EVR and that the "dual capacitydoctrine" applied because defendants were providing Robin withactual treatment as opposed to a limited evaluation related to hisemployment.

Following a hearing on defendants' motions, the trial courtdismissed plaintiffs' complaint with prejudice, finding that theexclusivity provision of the Act barred plaintiffs' common lawaction. The trial court did not specifically address whether theintentional infliction of emotional distress allegations weresufficient to state a cause of action. This appeal followed.

Plaintiffs contend that the trial court erred in dismissingtheir complaint with prejudice because their claims are not barredby the exclusivity provision of the Act. Plaintiffs argue thatRobin's "psychiatric damages" are not related to his employmentbecause, due to his prior disabling back injury, he was not workingat the time he suffered the psychiatric damages and, therefore, had"no employment with his previous employer." They further claimthat Robin's "psychological breakdown" was "entirely discrete" fromhis back injury and was caused by defendants' treatment of himduring his rehabilitation. Plaintiffs maintain that the vocationalservices and rehabilitation services Robin received were notdesigned to enable him to return to his previous employment andthere was no continuing employment relationship. Plaintiffsfurther argue that the Act does not insulate his former employer'sinsurers or agents from common law liability for intentional tortssuch as those causing his injuries. They distinguish their claimsfor the injuries suffered by Robin from claims for injuries causedby "vexatious delay" of benefit payments, which they admit would becovered by the "exclusivity" provision of the Act.

Defendant EVR contends that the exclusive remedy provision ofthe Act bars plaintiffs' claims, arguing that "[p]roblems withvocational services maintain the same character as problemspresented by delays or terminations of disability payments andshould be treated the same by this court." EVR further argues thatplaintiffs were required to exhaust all remedies before theIndustrial Commission before bringing any claim in the circuitcourt.

Defendant CCM also argues that the Act provides the exclusivemeans of any recovery for plaintiffs and, under the Act,plaintiffs' claims are barred. CCM claims that Robin's allegedemotional distress arose from his employment because the injuryoccurred while he was receiving workers' compensation benefits forhis original work-related injury. CCM also maintains that the dualcapacity doctrine does not apply to a party rendering services inconnection with workers' compensation benefits. CCM equates thefacts of this case to those cases in which this court has held thatthe dual capacity doctrine does not apply to medical servicesrendered by an employer where the services are rendered in responseto the employer's obligations under the Act. State Farm'sarguments are substantially similar to those made by EVR and CCM.

Section 2--619 of the Illinois Code of Civil Procedureprovides for the involuntary dismissal of an action where "theclaim asserted against [a] defendant is barred by other affirmativematter avoiding the legal effect of or defeating the claim." 735ILCS 5/2--619 (West 1998). In a motion brought pursuant to section2--619, the trial court must consider whether the defendant haspresented facts which constitute an affirmative defense that coulddefeat the plaintiff's cause of action. Prodromos v. Poulos, 202Ill. App. 3d 1024, 1028, 560 N.E.2d 942 (1990). Review of a trialcourt's dismissal of a complaint pursuant to section 2--619 is denovo. Metrick v. Chatz, 266 Ill. App. 3d 649, 652, 639 N.E.2d 198(1994). We consider all well-pleaded facts as true, and dismissalis proper only if no facts exist that could entitle the plaintiffto recover. Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1083, 670N.E.2d 845 (1996). An appellate court can affirm a section 2--619dismissal on any grounds supported by the record, regardless of thetrial court's reasons. Ko v. Eljer Industries, Inc., 287 Ill. App.3d 35, 39, 678 N.E.2d 641 (1997).

Section 5(a) of the Act provides:

"(a) No common law or statutory right torecover damages from the employer, hisinsurer, his broker, any service organizationretained by the employer, his insurer or hisbroker to provide safety service, advice orrecommendations for the employer or the agentsor employees of any of them for injury ordeath sustained by any employee while engagedin the line of his duty as such employee,other than the compensation herein provided,is available to any employee who is covered bythe provisions of this Act, to any one whollyor partially dependent upon him, the legalrepresentatives of his estate, or any oneotherwise entitled to recover damages for suchinjury." 820 ILCS 305/5(a)(West 1996).

Section 18 of the Act provides:

"All questions arising under this Act, ifnot settled by agreement of the partiesinterested therein, shall, except as otherwiseprovided, be determined by the Commission." 820 ILCS 305/18.

Section 19 of the Act, in relevant part, provides:

"Any disputed questions of law or factshall be determined as herein provided:

(k) In cases where there has beenunreasonable or vexatious delay of payment orintentional underpayment of compensation, orproceedings have been instituted or carried onby the one liable to pay the compensation,which do not present a real controversy, butare merely frivolous or for delay, then theCommission may award compensation additionalto that otherwise payable under the Act equalto 50% of the amount payable at the time ofsuch award." 820 ILCS 305/19(k)(West 1996).

An injury is compensable under the Act if it "aris[es] out ofand in the course of the employment." Unger v. ContinentalAssurance Co., 107 Ill. 2d 79, 85, 481 N.E.2d 684 (1985) (quotingthe Act, 735 ILCS 305/2). "Arising out of" refers to the causalconnection between the employment and the accidental injury, whichexists when the injury's origin is in some risk related to theemployment. Unger, 107 Ill. 2d at 85. Whether the injury occurs"in the course of" employment depends on the time, place, andcircumstances of the injury. Unger, 107 Ill. 2d at 85. An injuryarises "in the course of" the employment when it occurs within theperiod of employment at a place where the employee may reasonablybe in the performance of his duties, and while the employee isfulfilling those duties or is engaged in something incidentalthereto. Unger, 107 Ill. 2d at 85-86.

Plaintiffs rely on Unruh v. Truck Insurance Exchange, 498 P.2d 1063 (Cal. 1972), in support of their argument that theexclusivity provision of the Act does not bar their claims forintentional conduct. In Unruh, the plaintiff suffered an injury toher back in the course of her employment and underwent foursurgeries. The defendant, the plaintiff's employer's workers'compensation carrier, hired two investigators to conductsurveillance of the plaintiff and determine the true extent of herdisability. The first investigator befriended the plaintiff,taking her to various social and recreational activities, while thesecond investigator secretly photographed the plaintiff. Theplaintiff alleged that she became emotionally interested in theinvestigator who had befriended her. After the motion picturestaken by the second investigator were shown at a hearing on theplaintiff's workers' compensation claim, the plaintiff alleged thatshe suffered a physical and mental breakdown which requiredhospitalization.

The Unruh plaintiff then filed a tort action against thedefendant insurer and the two investigators alleging that theinsurer negligently failed to control the investigators, she wasthe victim of assault and battery and intentional infliction ofemotional distress, and that the defendants had conspired to committhese acts. In a motion to dismiss the plaintiff's action, thedefendants argued, in part, that the exclusivity provision of theCalifornia workers' compensation statute barred the plaintiff'sclaims. The trial court agreed, and granted the defendants'motion.

On appeal, the California Supreme Court, relying primarily onthe "dual capacity" doctrine, which holds that a party treating aninjured worker in a manner independent of the injured worker'semployment status may be liable to the injured worker outside thescope of the Act, held that an insurance carrier which wasperforming its proper role in the workers' compensation schemeshares the same immunity held by the employer from an injuredworker's lawsuit. The Unruh court therefore found that theplaintiff's negligence claim and conspiracy allegations, which werealso based on negligence, were properly dismissed because merenegligence did not defeat the immunity. The court further held,however, that the intentional tort counts, as well as theconspiracy allegations related to those counts, stated valid causesof action and should not have been dismissed based on itsdetermination that even though an employer would be immune from asuit by an injured employee for the employer's intentional acts,under the dual capacity doctrine, the insurance carrier was notperforming its proper role in the workers' compensation scheme whenit participated in a deceitful course of conduct against theplaintiff and therefore would not be immune from a lawsuit based onsuch conduct.

Unruh and the issues raised by plaintiffs here have beenaddressed in Larson's Workers' Compensation Law (Larson) (6 A.Larson & L. Larson, Larson's Workers' Compensation Law