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JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Michael Paz, appeals from the jury's verdict infavor of defendant, Commonwealth Edison Company (ComEd). Weaffirm.

Plaintiff was an employee of ComEd when he was injured on thejob. On August 16, 1989, a large piece of metal fell from anoverhead crane and landed on the grate upon which plaintiff wasstanding. Plaintiff was thrown against a railing and struck on theknees by the piece of metal. During the next two years, plaintiffon occasion returned to work part time and performed light-dutytasks. Plaintiff was paid in excess of $51,000 in workers' compensation benefits during the period of his disability, andmedical bills of almost $25,000 were also paid. Eventually,plaintiff and ComEd settled on total worker's compensation benefitsof $115,000, which was approved by the Industrial Commission. Plaintiff was examined by several doctors during this period,including his personal physician and a doctor employed by ComEd. Plaintiff's ability to work was often disputed by these doctors.Eventually, on the morning of November 7, 1991, plaintiff wasexamined by Dr. Fitzpatrick, who was employed by ComEd. Theparties dispute whether Fitzpatrick at that time released plaintiffto work full time. Plaintiff did not report to work on November 7,and he was terminated that day.

Plaintiff filed suit, alleging retaliatory discharge, and hissecond amended complaint proceeded to a jury trial after the courtdenied motions for summary judgment and judgment on the pleadings.The jury returned a verdict in ComEd's favor. Plaintiff'sposttrial motion was denied. This appeal followed.

Plaintiff first contends that he was entitled to summaryjudgment on the issue of liability. However, an order denying amotion for summary judgment is not reviewable after an evidentiarytrial, as any error in the denial is merged in the subsequenttrial. Contract Development Corp. v. Beck, 255 Ill. App. 3d 660,664 (1994). Therefore, we will address this contention in thecontext of whether the jury's verdict was against the manifestweight of the evidence. A verdict is against the manifest weightof the evidence only where conclusions opposite those reached bythe jury are clearly evident, plain, and undisputable. Moore v.Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874,880 (1996).

The general rule in Illinois is that an at-will employee maybe discharged by the employer at any time and for any reason. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 17-18(1998). (Although plaintiff herein was a union member, the unioncontract was not involved in this case and the plaintiff was an at-will employee for all relevant purposes in this litigation.) However, our supreme court recognized a limited exception to thisrule in Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978), when itdetermined that a plaintiff who was terminated for pursuingworkers' compensation benefits could bring an action forretaliatory discharge against the former employer. See Buckner,182 Ill. 2d at 18. The supreme court has deflected many attemptsto expand this tort and has maintained retaliatory discharge as alimited and narrow exception to the general rule of at-willdischarges. See Buckner, 182 Ill. 2d at 18-20. To state a causeof action for retaliatory discharge, a claimant must allege that(1) he was an employee of the defendant before or at the time ofthe injury; (2) he exercised some right granted by the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)); and(3) his discharge was causally related to the exercise of thatright under the Act. Clark v. Owens-Brockway Glass Container,Inc., 297 Ill. App 3d 694, 697 (1998). The element of causation isnot met if the employer has a valid, nonpretextual basis fordischarging the employee. Hartlein v. Illinois Power Co., 151 Ill.2d 142, 160 (1992). Excess absenteeism, even caused by acompensable injury, may be a valid reason for dismissal, and anemployer is under no obligation to retain an at-will employee whois medically unable to return to his assigned position. Hartlein,151 Ill. 2d at 159-60.

Here, there is no question that plaintiff was employed byComEd at the time of the injury or that plaintiff exercised hisright to benefits under the Act. However, the jury concluded thatplaintiff's discharge was not causally related to his exercise ofrights under the Act. This conclusion was not against the manifestweight of the evidence. Plaintiff was discharged more than twoyears after he was injured and began receiving benefits under theAct. He had not reported to work for approximately five months atthe time of his firing and did not report on November 7, the dateon which ComEd discharged him after determining that the plaintiffcould not or would not do full-time work. ComEd only had eight-hour-a-day restricted-duty work available. Plaintiff refused towork eight hours a day. The evidence does not so overwhelminglyfavor plaintiff that no contrary verdict could stand. Therefore,the jury's verdict was not against the manifest weight of theevidence.

Plaintiff cites Clark as controlling. In that case, Clarkinjured her back on March 3, 1991, and began receiving temporarytotal disability payments on March 13. After initially agreeingwith Clark's family physician's course of treatment, the employer,Owens-Brockway, "suspected that Clark was malingering." Clark, 297Ill. App. 3d at 696. On May 23, 1992, Clark was videotaped mowingher lawn. She was suspended on June 1 and was fired, after ahearing, on June 3. In Clark's suit for retaliatory discharge, thetrial court granted summary judgment in Clark's favor on the issueof liability. The appellate court affirmed, concluding thatsummary judgment in Clark's favor "was proper because her dischargewas directly and proximately related to her claim for benefits." Clark, 297 Ill. App. 3d at 698. The court stated that "[a]nemployer may discharge an injured employee who has filed a workers'compensation claim as long as the reason for the discharge iswholly unrelated to the employee's claim for benefits under theWorkers' Compensation Act." Clark, 297 Ill App. 3d at 698. However, "[a]n employer may not discharge an employee on the basisof a dispute about the extent or duration of a compensable injury." Clark, 297 Ill. App. 3d at 699. The court found as undisputed thefact that Clark was discharged because Owens-Brockway believed thather claim for benefits was exaggerated. Clark, 297 Ill. App. 3d at698.

The dissent also relies on Clark, arguing that, because "adispute over whether plaintiff could work eight-hour days existed,"ComEd discharged plaintiff on the basis of that dispute. Slip op.at 26. However, we find Clark distinguishable. Clark involved thereview of a grant of summary judgment in an uncontested factualscenario; the cause did not go to verdict. The Clark court foundthat the evidence that Clark's discharge was directly related toher claim for benefits was "undisputed." In the case before us,the evidence was disputed. ComEd has presented evidence thatplaintiff was fired for not returning to work after he had beenreleased to work full time and that it had no part-time work forplaintiff. Plaintiff and the dissent would have this court takethe Clark holding that an employee may not be discharged "on thebasis of a dispute about the extent or duration of a compensableinjury" (Clark, 297 Ill. App. 3d at 699) to mean that any time anemployee is unable to return to work or refuses to return becausehis personal physician advises against it the employer cannot doanything about it, as this would involve a dispute about the extentor duration of the employee's injury. This is not the law, and wewill not make it so. Plaintiff and the dissent attempt to take afactual issue (the dispute over plaintiff's ability to work eight-hour days) and turn it into a question of law inuring to thebenefit of the plaintiff. The evidence against the employer inClark was undisputed. Such is not the case here. To that extent,Clark is inapplicable and distinguishable.

Effectively, the dissent takes a dispute as to a fact,causality, cites the undisputed fact that the workers' compensationclaim was pending, and determines that, as a matter of law,causality has been proved. Under the logic of the dissent, anemployer could not even raise facts alleging termination for anyother reason. If a dispute regarding the nature and extent of theplaintiff's injury exists, an employer could not present evidencethat the plaintiff was terminated for sexually harassing anotheremployee or stealing inventory, since, according to the dissent,the dispute over the nature and extent of the injury would be, asa matter of law, the cause of the termination. Many facts mayexist that would tend to prove several different motives fortermination. Because motive is a question of fact, not law,summary judgment is generally inappropriate in retaliatorydischarge cases even if it were capable of review. See Austin v.St. Joseph Hospital, 187 Ill. App. 3d 891, 897 (1989). The disputeover plaintiff's ability to return to full-time employment, in thiscase, is just one fact to be considered by the fact finder. Whether plaintiff's discharge was retaliation for exercising hisrights under the Act or whether the discharge was ComEd's lawfultermination of an employee unable to fulfill his duties is aquestion of fact to be decided after viewing all the evidence. Thejury found in favor of ComEd, and we believe the decision was notagainst the manifest weight of the evidence.

The dissent's view, if adopted, would remove "retaliatory"from "retaliatory discharge" and would, in essence, reverseHartlein. Under the dissent's logic, an employer would be betteroff never discussing an injured employee's medical situation andimmediately giving the employee an ultimatum of "Return to work orwe will need to hire a replacement to do your job." Hartlein,decided by our supreme court, does not place employers andemployees in such a predicament. An employer is not obligated toretain an at-will employee who is medically unable to return to hisassigned position. Hartlein, 151 Ill. 2d at 159. In its ownrecitation of the facts, the dissent acknowledges that plaintiffwas informed that "the only work ComEd had available for plaintiffwas eight-hour-a-day restricted-duty work. Again citing Dr.Larson's restrictions, plaintiff refused to work eight-hour daysand consequently did not return to work for ComEd." Slip op at 21. This fact places the case directly under the holding of Hartlein.

The dissent attempts to distinguish Hartlein by arguing thatit was undisputed that the plaintiff in Hartlein was medicallyunable to ever return to his former position in the company, whileplaintiff's ability to return to work in this case was medicallydisputed. Drawing this distinction, the dissent then argues thatComEd "did not have the right to terminate plaintiff based on adetermination that he was medically unable to return to work." Slip op. at 27-28. However, this is a distinction without adifference. Employers may act on the basis of their employee'sdisabilities. Hartlein, 151 Ill. 2d at 160. Hartlein cited withapproval Slover v. Brown, 140 Ill. App. 3d 618 (1986), in which theappellate court found in favor of an employer that did not employan injured employee who attempted to return to work after a 22-month injury recuperation. Excess absenteeism, even if caused bya compensable injury, may properly be the basis for firing anemployee. Hartlein, 151 Ill. 2d at 160. Absenteeism does notimply that the injured employee will never be able to return to hiscurrent job; it means merely that the employee is absent from workcurrently. The supreme court did not say that the undisputedinability to return to work in the future can be the basis fortermination. A plaintiff's inability to be at work and do his job,whether the reason for that inability is disputed or not, is aproper basis for termination.

The dissent argues that only the Industrial Commission(Commission) can determine whether a plaintiff is capable ofreturning to work; an employer must await such a determinationbefore it can demand an employee's return to work and terminate theemployee for failure to do so. However, the Commission'sjurisdiction is limited to "[a]ll questions arising under thisAct." See 820 ILCS 305/18 (West 1996). Questions regarding thecompensation due to an injured employee because of the injury shallbe addressed only by the Commission. However, an employer's needto have an employee who is able to fulfill the duties of employmentand an employee's ability to fulfill his duties of employment arenot questions within the Commission's competence or jurisdiction.

Furthermore, the dissent's reliance on the arbitrationprovided in section 19(p) of the Act (820 ILCS 305/19(p) (West1996)) is completely misplaced. Slip op. at 26. Section 19 of theAct provides for arbitration of claims for temporary or permanentdisability, and the payment of compensation may be ordered. See820 ILCS 305/19(b) (West 1996). The arbitrator's order is to be"conclusive as to all other questions except the nature and extentof said disability." (Emphasis added.) 820 ILCS 305/19(b) (West1996). Nowhere does section 19 give an arbitrator the power todetermine an employee's current availability for work or theemployer's right to discharge the employee; the arbitrator'sfindings as to the nature and extent of the injury are not evenconclusive. Submission to arbitration is neither required nor ofany value, as the question of an employee's continued employment isnot properly before the Commission or an arbitrator.

We also fail to see the significance that the dissent placeson the fact that ComEd and plaintiff dispute plaintiff's ability toreturn to work full time. If both ComEd and plaintiff agreed thatplaintiff was unable to do his job, presumably ComEd would be freeto terminate plaintiff, as there would be no dispute as to thenature and extent of plaintiff's injury. Plaintiff hereacknowledges that he is unable to perform the duties of his job. Whether ComEd agrees with him or not is not relevant. The disputeabout his ability to perform should not be the focus; his actualinability to perform should be.

The dissent also raises the issue of vocational rehabilitationunder the Act. Slip op. at 28. However, plaintiff never raisedthis issue in the trial court, and it is not an appropriate groundfor resolution or reversal.

Plaintiff argues that, under the Act, an injured employee hasthe right to select his own physician and that ComEd "obliterated"this right by compelling plaintiff to ignore the medical advice ofhis chosen doctor and instead submit to the decision of the companydoctor. However, as we have already stated, an employer is notobligated to retain an at-will employee who is medically unable toreturn to his position, nor is an employer obligated to reassignsuch an employee to another position. See Hartlein, 151 Ill. 2d at159. To accept plaintiff's argument would be to require allemployers to accept an employee's excuse from his private physicianwithout question and without recourse if the personal physician'sdiagnosis or treatment makes the employee unable to return to hisposition. An employer is not required to continue employing aninjured employee; certainly, it is not required to accept hisdoctor's treatment plan indefinitely.

Plaintiff argues that an action for retaliatory discharge isnot limited to a discharge for the act of filing a workers'compensation claim but includes termination for exercising rightsto medical care. Assuming, arguendo, this contention is true, ouranalysis and conclusion are not altered. Plaintiff was neverdenied the right to seek medical care of his choosing. Plaintiffreceived over two years of such care. However, the employee'sright to seek medical care does not require the employer to retainthe employee forever. Plaintiff's argument would give employeesand their personal physicians power to keep the nonworking employeeon the payroll indefinitely. As we have seen, an employer is notrequired to keep an injured employee on the payroll indefinitely,even if the injury was work-related. ComEd was not required toallow plaintiff to recuperate at home or to work part-time hoursindefinitely. The plaintiff fails to realize that the jury foundagainst him and, under the evidence, the jury could have found agood-faith motive for termination.

Plaintiff next contends that the manifest weight of theevidence showed that he was terminated before he could return towork on November 7 and that the doctor's examination was simply aprearranged prelude to terminating him for asserting his workers'compensation rights. Plaintiff testified that he was picked up atapproximately 8:30 to 9 a.m. on the morning of November 7, 1991, byLangston Hughes and Ed Chapman and taken to an appointment with Dr.Fitzpatrick at the ComEd medical department. He was never told toreturn to work and, after eating lunch with Hughes and Chapman, wasdropped off at his home, where the termination letter from ComEdawaited him. Hughes, a ComEd foreman, testified that he pickedplaintiff up between 8 and 8:30 a.m. and drove him to the medicalappointment. He never told plaintiff to return to work. Afterlunch, he dropped off plaintiff between 12 and 1 p.m. Chapman, aunion representative, testified that he never heard anyone directplaintiff to return to work that day. After lunching withplaintiff at about 11:30 a.m., Chapman returned to work at about12:30 p.m. Dr. Fitzpatrick testified that he examined plaintiff onNovember 7 and that he communicated with ComEd his recommendationthat plaintiff return to work. Fitzpatrick did not tell plaintiffthat he must return to work that day, as someone else would havetold plaintiff in another room. A copy of a return-to-work slip,recommending restricted duty on a full-time basis and time-stampedat 8:27 a.m. on November 7, was entered into evidence. CharlesSchumann, manager of the ComEd Waukegan station, testified that hesigned plaintiff's termination letter in the morning of November 7,after he was informed that plaintiff had been released to return towork and had not reported to the Waukegan station. The terminationletter was delivered to plaintiff's house at 12:39 p.m.

It is the jury's function to weigh contradictory evidence,judge the credibility of the witnesses, and draw ultimateconclusions as to the facts of a case. Moore, 284 Ill. App. 3d at880. A reviewing court may not substitute its judgment for that ofthe trier of fact merely because different conclusions may be drawnfrom the evidence. Moore, 284 Ill. App. 3d at 880. A verdict willbe set aside and a new trial ordered only when the jury's verdictis against the manifest weight of the evidence, i.e., whereconclusions opposite those reached by the jury are clearly evident,plain, and indisputable.  Moore, 284 Ill. App. 3d at 880.

We do not conclude that the evidence in this case leads onlyto the conclusion opposite of that reached by the jury. Much ofthe testimony on both sides is vague as to the time that eventstook place. The credibility of the witnesses is of utmostimportance here, as the parties argue over whether plaintiff wastold to return to work. The only physical evidence on this point,the return-to-work slip, is time-stamped at 8:27 a.m., certainlyearly enough for plaintiff to have returned to work if he hadreceived it. The evidence is contradictory and not so weighted inplaintiff's favor that this court should overturn the jury'sverdict as against the manifest weight of the evidence. We,therefore, decline to do so.

Plaintiff next contends that ComEd violated the Act bycompelling plaintiff to submit to multiple examinations by Dr.Fitzpatrick. However, plaintiff fails to inform us howexaminations by the company medical staff constitute retaliatorydischarge. An employee entitled to receive disability payments isrequired to submit himself for examination by a qualified doctor,at the employer's request and expense, to determine the nature andextent of the employee's injury and to ascertain the amount ofcompensation that may be due the employee from time to time fordisability. 820 ILCS 305/12 (West 1998). The employee's refusalto submit to such an examination leads to the suspension of theemployee's compensation payments. 820 ILCS 305/12 (West 1998); seealso King v. Industrial Comm'n, 189 Ill. 2d 167 (2000). Thus,ComEd had a statutory right to request the examinations, andplaintiff had a statutory duty to submit to them. Plaintiff arguesthat he was forced to choose between retaining his job by doingwhat the company physician suggested or losing his job byexercising his right to follow his personal physician's advice. This is merely a reiteration, with a slight twist, of plaintiff'searlier argument that an employer must accept the diagnosis andrecommendations of an injured employee's personal physician. Thisis not the law. Multiple examinations by a company physician,especially over a two-year time span, as in this case, do notconstitute a violation of the Act or a discharge.

Plaintiff next contends that the court erred in failing toinstruct the jury on punitive damages. First, plaintiff arguesthat the court should not have granted a directed verdict inComEd's favor on count II of his second amended complaint, whichalleged wilful and wanton conduct and sought punitive damages. Punitive damages may properly be awarded in a case sounding inretaliatory discharge. See Kelsay, 74 Ill. 2d at 186-87. However,such damages are available only when torts are committed withfraud, actual malice, deliberate violence or oppression,wilfulness, or such gross negligence as to indicate a wantondisregard of others' rights.  Kritzen v. Flender Corp., 226 Ill.App. 3d 541, 554 (1992). Punitive damages should be awarded onlywhere the defendant's misconduct is above and beyond the conductneeded to plead a prima facie case. Kritzen, 226 Ill. App. 3d at554. Our review of the facts of this case does not reveal the typeof conduct necessary to support a claim of wilful and wantonconduct. Plaintiff's arguments allege nothing more than theconduct necessary for the basis of an action in retaliatorydischarge. Furthermore, the jury found that ComEd's actions werenot wrongful, let alone wilful or wanton. The trial court properlydirected the verdict in ComEd's favor on count II. Therefore, thecourt did not err in refusing plaintiff's instructions on punitivedamages.

Plaintiff next contends that the court improperly instructedthe jury by refusing to give certain of his instructions to thejury and giving certain of ComEd's instructions to the jury. Thetrial court has considerable discretion in determining the form inwhich jury instructions shall be given.  Zimmer v. Melendez, 222Ill. App. 3d 390, 393 (1991). A new trial will be granted forrefusal to give a tendered instruction only where serious prejudiceto a party's right to a fair trial is shown. Thompson v. AbbottLaboratories, 193 Ill. App. 3d 188, 200 (1990). On appeal, thestandard for determining the adequacy of instructions is whether,taken as a whole and in series, the instructions fully, fairly, andcomprehensively apprise the jury of the applicable legalprinciples. Thompson, 193 Ill. App. 3d at 200. Instructionsshould not overemphasize any particular matter and should notconfuse or mislead the jury. Thompson, 193 Ill. App. 3d at 200. Pattern jury instructions are to be used unless the courtdetermines that the instruction does not accurately state the law. 177 Ill. 2d R. 239(a). A nonpattern jury instruction may be usedwhen the court determines that the jury should be instructed on asubject for which a pattern instruction does not exist; the nonpattern jury instruction should be simple, brief, impartial, andfree from argument. 177 Ill. 2d R. 239(a).

The court denied plaintiff's instruction No. 17, which, amongother things, defined what plaintiff claims were some of his rightsunder the Act. Such definition, plaintiff argues, was lacking inthe instructions that were given. However, plaintiff's No. 17 alsoincluded language regarding wilful and wanton conduct; count II,which alleged wilful and wanton conduct, was no longer before thejury. Thus, plaintiff's No. 17 was not a proper instruction, andthe court did not err in refusing to give it to the jury.

Plaintiff's nonpattern instruction No. 18 attempted topartially list plaintiff's rights under the Act. The instructionstated:

"The Illinois Worker's [sic] Compensation Act grantsrights and remedies to employees who have been injured on thejob. Those rights and remedies include the following:

The right to file a worker's [sic] compensation claimwith the Illinois Industrial Commission, an agency of theState of Illinois;

The right to choose his own physician and hospitalservices at the employer's expense;

The right to exercise the choice of physician withoutthreat of discharge or discharge;

The right to reject any medical care or advice of aphysician which the employee does not choose."

However, this tendered instruction takes these rights out ofcontext and does not accurately state the law. While injuredemployees may have those rights, among others, they do not have theright to eternal employment with the employer. As written, thisproposed jury instruction implies that an employee may not beterminated if he decides to follow the advice of his own physician,even against the diagnosis of another physician. As we have seen,this simply is not the case. See Hartlein, 151 Ill. 2d at 159-60. Furthermore, the evidence did not show that plaintiff was deniedhis right to choose his own physician or to reject medical careoffered by another doctor. This proposed instruction is inaccurateand is not based on the facts in evidence. The court did not errin refusing it.

Plaintiff's proposed instruction No. 19 dealt with therelationship between the workers' compensation settlement and anypossible damages the jury would award. However, as the jury foundfor ComEd and no damages were awarded, the court's refusal to givethis instruction is moot.

The court refused to give plaintiff's proposed instruction No.20, which quoted from the Act. Defendant's instruction No. 25,which was given, quoted the same language from the Act. We find noerror here.

Plaintiff's proposed instruction No. 23, which was refused bythe court, read as follows:

"An employer's power to terminate an employee at willshould not prevail when that power is exercised to prevent theemployee from asserting his statutory rights under theworker's [sic] Compensation Act. The legislature enacted theworker's [sic] compensation law as a comprehensive scheme toprovide for efficient and expeditious remedies for injuredemployees. This scheme would be seriously undermined ifemployers were permitted to abuse their power to terminate bythreatening to discharge employees for seeking compensationunder the Act. When faced with such a dilemma, manyemployees, whose common law rights have been supplanted by theAct, would choose to retain their jobs and thus, in effect,would be left without a remedy either at common law orstatutory. This result is contrary to the public policy asexpressed in the Worker's [sic] Compensation Act."

This is argumentative and reads like a closing argument. It wasproperly refused.

Plaintiff argues that defendant's instruction No. 25 was givenin error. This instruction contained the phrase "the exercise ofhis or her rights or remedies granted to him or her by this act." According to plaintiff, the court then failed to instruct the juryas to what the "rights and remedies" were, thereby confusing thejury. However, the "issues" instruction given to the jury statedthat plaintiff "exercised his rights under the Illinois Workers'Compensation Act by filing a workers' compensation claim againstdefendant." This instruction adequately stated which right was atissue in this case. Therefore, defendant's instruction No. 25 wasnot confusing and, therefore, not given in error.

Similarly, plaintiff next argues that defendant's instructionNo. 27, which was given by the court, referred to "clear mandatesof public policy" without ever telling the jury which mandates wereat issue. However, a later instruction told the jury:

"It is unlawful for an employer to discharge an employeein retaliation for his filing a claim under the Workers'Compensation Act. Such a discharge violates a clear mandateof public policy of the State of Illinois."

Thus, the jury was informed as to what actions were violative of aclear mandate of public policy in this state, and the jury wasproperly instructed.

Plaintiff's instruction No. 16, which was refused by thecourt, stated that Dr. Fitzpatrick had "no lawful right orobligation to act as a treating physician for Michael Paz." Thisproposed instruction is argumentative and contrary to the evidence,as no one claims that Fitzpatrick did act as plaintiff's treatingphysician. Therefore, the court did not abuse its discretion inrefusing to give this proposed instruction.

Plaintiff finally contends that defendant was improperlyallowed to present evidence that plaintiff was not injured at workand was not injured to the extent that he claimed. According toplaintiff, the nature, extent, and duration of a work-relatedinjury are matters to be brought up before the IndustrialCommission and were irrelevant to an allegation of retaliatorydischarge. However, plaintiff himself brought up the nature andextent of his injuries, testifying that his back injuries preventedhim from working restricted eight-hour shifts. If, as plaintiffcontends, he was fired for exercising rights under the Act, ComEdmust have the right to show that the firing was based on some othercriteria. ComEd submitted evidence that plaintiff's back injurieswere not work related. A firing based on nonattendance because ofnon-work-related injuries would not be violative of the Act. Furthermore, having an injured back is not a right under the Act. Even if plaintiff's back were injured on the job, ComEd couldproperly release him if the injured back prevented him fromcompleting his duties at ComEd. Getting injured on the job doesnot guarantee one a job. Evidence that plaintiff injured his backin a non-work-related incident is, at worst, irrelevant; theadmission of such evidence is not reversible error and does notrequire a new trial.

For these reasons, the judgment of the circuit court of LakeCounty is affirmed.

Affirmed.

BOWMAN, P.J., concurs. JUSTICE COLWELL, dissenting:

Even when viewed in the light most favorable to ComEd, theevidence unequivocally shows that ComEd discharged plaintiff overa dispute concerning the extent and duration of plaintiff's backinjury. For that reason, I dissent from the majority opinion.

A review of the record reveals the following facts. Plaintiffsustained knee injuries from the work-related accident of August16, 1989, and thereafter claimed to have experienced back pains. He filed a workers' compensation claim on or about April 23, 1990.

At some point, plaintiff began receiving back treatment fromtwo Wisconsin doctors: Dr. Sanford Larson, a neurologist; and Dr.Paul Sanford, a physiatrist. On February 7, 1991, ComEd'sphysician, Dr. William Fitzpatrick, examined plaintiff andconcluded that he was capable of working eight-hour days with somephysical restrictions. Dr. Fitzpatrick wrote Dr. Larson a letterin February 1991 informing him of the February 7 examination, andDr. Larson responded with a letter dated February 19, 1991. Dr.Larson wrote, "I think [plaintiff] could try to return to work ona part-time basis progressing to full-time." Plaintiff therebyreturned to ComEd on March 5, 1991, and worked four-hour dayswithin his restrictions until June 17, 1991. In June 1991, Dr.Fitzpatrick and plaintiff's supervisors agreed that claimant wascapable of eight-hour, restricted-duty work. However, citing Dr.Larson's recommendations, plaintiff refused to work eight-hourdays.

On June 13, 1991, plaintiff met with John Hynes, ComEd's humanresources representative. Hynes's notes from that meeting statethat plaintiff "was told that if he does not work the full 8 hourrestricted duty day on June 17, 1991, or does not bring in a[doctor's] note for our Medical department to review, he will besent home on suspension." On June 17, claimant gave Hynes a letterfrom Dr. Larson dated May 14, 1991. In the letter, Dr. Larsonreiterated that plaintiff's back condition limited him to a four-hour work day. Hynes forwarded the letter to Dr. Fitzpatrick, whodisagreed with Dr. Larson's assessment. Dr. Fitzpatrick informedHynes on June 19, 1991, that plaintiff was capable of workingeight-hour days.

At another meeting, held on June 21, 1991, Hynes informedplaintiff that (a) Dr. Fitzpatrick did not accept Dr. Larson'sfour-hour work limit, (b) Dr. Fitzpatrick had released him foreight-hour workdays and (c) the only work ComEd had available forplaintiff was eight-hour-a-day restricted-duty work. Again citingDr. Larson's restrictions, plaintiff refused to work eight-hourdays and consequently did not return to work for ComEd. Althoughit stopped paying plaintiff's temporary total disability (TTD)benefits retroactive to June 17, 1991, ComEd did not fire plaintiffjust yet.

On August 15, 1991, plaintiff went into Hynes's office, andHynes again informed him that ComEd had eight-hour-a-day workavailable within his restrictions. Plaintiff did not accept thework. Dr. Fitzpatrick then arranged for an outside orthopedicsurgeon, Dr. James Milgrom, to examine plaintiff on August 27,1991. Dr. Milgrom found no reason why plaintiff could not returnto work full time without restrictions. Meanwhile, plaintiffcontinued treating with Dr. Larson and Dr. Sanford in August andSeptember 1991. Neither doctor released plaintiff for full-timework prior to November 7, 1991.

Plaintiff met with Dr. Fitzpatrick on October 24, 1991. Dr.Fitzpatrick showed him a copy of Dr. Milgrom's report and said thatplaintiff was fit to return to work eight hours a day. However,because plaintiff was suffering from the flu, Dr. Fitzpatrick hadplaintiff return for an examination on October 28, 1991. Dr.Fitzpatrick examined plaintiff on October 28 and would havereleased him for work; however, since plaintiff still had the flu,Dr. Fitzpatrick scheduled a follow-up examination for November 7,1991.

On the morning of November 7, 1991, Dr. Fitzpatrick examinedplaintiff, determined that he was no longer ill, and filled out areturn-to-work slip. On that slip, which was time-stamped 8:27a.m., Dr. Fitzpatrick checked the "restricted duty" box and leftunchecked the "part time duty __ hrs per day" box. Dr. Fitzpatrickwrote on the slip, "start today," and testified that hespecifically told plaintiff that he was releasing plaintiff foreight-hour, restricted-duty work. If we view the evidence inComEd's favor, Dr. Fitzpatrick gave plaintiff the return-to-workslip and told him to return to work that day. Plaintiff did notreturn to work, though.

Following the examination, Dr. Fitzpatrick informed Hynes thathe had released plaintiff for work. After learning that plaintiffhad not reported to work that morning, Hynes assisted CharlesSchumann, plaintiff's plant manager, in drafting a terminationletter. That letter, signed by Schumann, read:

"You were released this day November 7, 1991 to return to workby the medical department of Commonwealth Edison Company. Dueto your failure to report as directed, you have been removedfrom the payroll *** effective November 7, 1991."

They then express-mailed the letter to plaintiff's address, whereplaintiff received it early that afternoon.

Plaintiff and ComEd settled the workers' compensation claim onOctober 7, 1993. The settlement contract stated that plaintiffsustained injuries to his "[r]ight knee and back" as a result ofthe August 16, 1989, accident.

Following trial, plaintiff sought a judgment against ComEd onthe basis that ComEd committed a per se violation of the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). Thecircuit court denied that motion, which was essentially a motionfor a directed verdict on the liability issue. Plaintiff raisesthe same issues in his appellate brief as he did in his motion fora directed verdict, and I believe the circuit court erred indenying that motion.

A motion for a directed verdict will not be granted unless"all of the evidence, when viewed in its aspect most favorable tothe opponent, so overwhelmingly favors movant that no contraryverdict based on that evidence could ever stand." Pedrick v.Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Our reviewof a circuit court's ruling on a motion for a directed verdict isde novo. Los Amigos Supermarket, Inc. v. Metropolitan Bank & TrustCo., 306 Ill. App. 3d 115, 130 (1999).

To recover for retaliatory discharge, a claimant must showthat (1) he was an employee of the defendant before or at the timeof the injury, (2) he exercised some right granted by the Act (820ILCS 305/1 et seq. (West 1996)), and (3) his discharge was causallyrelated to the exercise of rights under the Act. Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 697 (1998). Only the third element--ComEd's motive in firing plaintiff--was atissue at trial. ComEd's motive was a question of fact. Austin v.St. Joseph Hospital, 187 Ill. App. 3d 891, 897 (1989). The elementof causality is not met if the employer has a valid basis, which isnot pretextual, for discharging the employee. Hartlein v. IllinoisPower Co., 151 Ill. 2d 142, 160 (1992). A pretext is a purpose ormotive alleged or an appearance assumed in order to cloak the realintention or state of affairs. Marin v. American Meat Packing Co.,204 Ill. App. 3d 302, 307 (1990). An employer may fire an employeefor excessive absenteeism, even if the absenteeism is caused by acompensable injury (Hartlein, 151 Ill. 2d at 160), but "[a]nemployer may not discharge an employee on the basis of a disputeabout the extent or duration of a compensable injury" (Clark, 297Ill. App. 3d at 699).

The parties in this case do not dispute that, at the timeComEd discharged plaintiff, Dr. Larson believed plaintiff couldwork only four-hour days with restrictions and Dr. Fitzpatrickbelieved plaintiff could work eight-hour days with restrictions. Thus it was undisputed that there was a "dispute about the extentor duration" of plaintiff's back injury. See Clark, 297 Ill. App.3d at 699. Also undisputed was the fact that ComEd would onlyallow plaintiff to return to work if he worked eight-hour days withrestrictions.

Although ComEd's defense at trial was that it dischargedplaintiff for failing to return to work on November 7, underlyingComEd's decision to fire plaintiff was its own determination thatplaintiff was in fact capable of working eight-hour days. Theproblem with that determination, however, was that ComEdeffectively substituted its own judgment for that of the IndustrialCommission, the agency responsible for determining the nature andextent of work-related injuries. See 820 ILCS 305/18 (West 1996)("[a]ll questions arising under this Act, if not settled byagreement of the parties interested therein, shall, except asotherwise provided, be determined by the Commission"); IllinoisForge, Inc. v. Industrial Comm'n, 95 Ill. 2d 337, 343 (1983)("[t]he drawing of factual inferences concerning the nature andextent of disabilities based on medical testimony is peculiarly inthe province of the Industrial Commission's expertise"). If ComEdwanted a decision on whether plaintiff was capable of workingeight-hour days, it should have sought an arbitration hearingpursuant to the procedure set forth in section 19(p) of the Act(820 ILCS 305/19(p) (West 1996)). Nonetheless, ComEd failed to doso. Under the circumstances, because ComEd fired plaintiff whilea dispute over whether plaintiff could work eight-hour daysexisted, the undisputed facts show that ComEd discharged plaintiff"on the basis of a dispute about the extent or duration of acompensable injury." Clark, 297 Ill. App. 3d at 699. I reach thatconclusion even viewing the evidence in the light most favorable toComEd and under the assumption that plaintiff disobeyed an order toreturn to work. While an employer may withhold TTD benefits basedon a reasonable interpretation of conflicting medical opinionsduring the pendency of a workers' compensation claim (see LittleCompany of Mary Hospital v. Industrial Comm'n, 256 Ill. App. 3d1036, 1040 (1993)), an employer should not have the right tounilaterally discharge an employee under the same circumstances.

ComEd relies upon two cases, Marin, 204 Ill. App. 3d 302, andAustin, 187 Ill. App. 3d 891, in support of its contention that ithad the right to discharge plaintiff for failing to return to work. The court in both cases held that it was within the rights of theemployers to discharge the plaintiffs, both of whom failed toreport to work on time as directed. Marin, 204 Ill. App. 3d at309; Austin, 187 Ill. App. 3d at 897. Although the plaintiffs inboth cases claimed that their treating physicians had not yetreleased them to work prior to the directed dates of return, otherevidence established that the treating physicians had in factreleased them. Marin, 204 Ill. App. 3d at 305-06; Austin, 187 Ill.App. 3d at 894-95. The difference between those cases and this oneis the fact that in Marin and Austin there was no medicaldisagreement surrounding the employers' decision to fire theplaintiffs, whereas in this case there was. That distinction issignificant, given that the responsibility of resolving disputesover the nature and extent of work-related injuries is for theIndustrial Commission only. See 820 ILCS 305/18 (West 1996);Illinois Forge, 95 Ill. 2d at 344.

ComEd also relies upon Hartlein, where our supreme courtrejected the plaintiff's claim of retaliatory discharge, statingthat "Illinois law does not obligate an employer to retain an at-will employee who is medically unable to return to his assignedposition." Hartlein, 151 Ill. 2d at 159. Hartlein, however, isalso distinguishable from the instant case. In Hartlein, it wasundisputed that the plaintiff's work-related injury prevented himfrom ever returning to his former position within the company; inthis case, by contrast, plaintiff's ability to return to work wasdisputed. Therefore, unlike the situation in Hartlein, theemployer in this case did not have the right to terminate plaintiffbased on a determination that he was medically unable to return towork. Given the conflicting medical evidence, that determinationcould only have been made by the Industrial Commission.

If the Industrial Commission determined that plaintiff wascapable of returning to work, only then could ComEd demand thatplaintiff return to work, and only then could ComEd terminateplaintiff for failing to do so. If, on the other hand, theIndustrial Commission determined that plaintiff was incapable ofreturning to work, ComEd could terminate plaintiff, but not withoutoffering him vocational rehabilitation. See 820 ILCS 305/8(a)(West 1996) (as a result of an accidental injury, "[t]he employershall *** pay for treatment, instruction and training necessary forthe physical, mental and vocational rehabilitation of theemployee"); Hartlein, 151 Ill. 2d at 165 (same). The record,however, contains no suggestion that ComEd ever offered plaintiffvocational rehabilitation. Thus, if ComEd fired plaintiff based onplaintiff's physical inability to return to work, ComEd's actionsstill constituted a violation of the Act.

Since ComEd improperly circumvented the Workers' CompensationAct through the way in which it fired plaintiff, plaintiff wasentitled to a directed verdict against ComEd on the liabilityissue. I therefore would reverse the judgment in favor of ComEd onthe retaliatory discharge claim and remand the cause for a trial ondamages only.