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Jackson v. Chicago Classic Janitorial and Cleaning Service1/31/2005
UNPUBLISHED
Plaintiffs, Patricia Jackson and Isaac Jackson, filed suit in the circuit court of Cook County against defendants Chicago Classic Janitorial & Cleaning Service (Chicago Classic) and Maximum Rehabilitation Services (Maximum) alleging that Chicago Classic negligently maintained a window of plaintiff Patricia Jackson's employer, causing it to crush her fingers while performing her duties. Plaintiffs also allege that Patricia was referred to Maximum for a functional capacity evaluation (FCE) by her treating physician and that she suffered injuries to her back as a result of Maximum's improper administration of the FCE.
Defendant Maximum moved to dismiss plaintiffs' complaint pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2002)), claiming that plaintiffs failed to file a certificate in compliance with section 2-622 of the Code (735 ILCS 5/ 2-622 (West 2002)). The circuit court denied Maximum's motion; however, it certified the following question to this court pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)):
"Whether it is necessary for a plaintiff to attach a certificate from a health care professional pursuant to 735 ILCS 5/2-622 where the Complaint alleges negligent conduct by a licensed occupational therapist during the performance of a Functional Capacity Evaluation which was ordered by plaintiff's treating physician and used to determine the vocational suitability of plaintiff[.]" We answer the certified question in the affirmative.
BACKGROUND
On May 1, 2001, Patricia was working as a nurse for her employer, the Veteran's Administration Hospital. While attempting to open a window, Patricia injured her fingers. During the course of receiving medical care related to the injury of her fingers, her physician referred her to Maximum for an FCE to determine whether Patricia could return to work and, if so, what tasks she would be capable of doing. The FCE consisted of various exercises and tasks, including lifting, sitting, standing and bending. The FCE is designed to determine an individual's physical abilities and deficits. The occupational therapist in this case evaluated, among other things, Patricia's handgrip, pain complaints in relationship to her medical history, pain behavior and its impact on her function, biomechanics, movement, coordination and her overall physical disabilities and deficits.
While undergoing the FCE, Patricia maintains that she suffered serious injuries to her back. Plaintiffs alleged that Maximum:
"(a) failed to properly instruct its patrons in proper lifting, sitting, standing or bending techniques before requiring the patrons to perform the same;
(b) failed to adequately train and/or supervise its employees in this instruction;
(c) failed to properly supervise its patron in performing the various exercises performed in the evaluation;
(d) failed to stop the evaluation when they knew or should have known that one of their patrons was injured and complaining of back pain as a result of the exercises performed in the evaluation;
(e) failed to warn patrons that they may sustain injury in performing the exercises in the evaluation;
(f) failed to properly administer the functional capacity evaluation in that it caused injury to Patricia Jackson by requiring her to perform tests, exercises and other activities beyond her physical capabilities;
(g) failed to properly train and/or supervise its employees in administering functional capacity evaluations so as to not cause injury to the individual being evaluated."
On September 26
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