Hosp., 261 Ill. App. 3d 245, 246 (1994); People v. Mileris, 103 Il. App. 3d 589, 592 (1981)
(Mileris).

In his response to Skaletsky’s Motion to Dismiss, Lakin contends that the materials supplied
by the Defendant “seem to implicate that he ([Skaletsky] made the report to Liberty Mutual sua
sponte” in violation of Section 8(a). However, in his Second Amended Complaint, Lakin
specifically pleads that Skaletsky, “at the request of Liberty Mutual”, conveyed Lakin’s ability to
Tetum to work to Liberty Mutual. Pursuant to the WCA, Liberty had a right to Lakin’s medical
tecords and the report that he was able to return to work. See Mileris, 103 Ill. App. 3d at 592
(“section 8 of the Workers’ Compensation Act guarantees that none of the [medical records] could
remain confidential”). Accordingly, Count I is dismissed with prejudice.

Skaletsky also seeks to dismiss Count IV for failure to state a claim.

To state a claim for civil conspiracy, a plaintiff must plead a combination of two or more
persons for the purpose of accomplishing by some concerted action either an unlawful purpose or
a lawful purpose by unlawful means. See Bucknar v, Atlantic Plant Maint., Inc., 182 Ill. 2d 12, 23-
24 (1998). In federal court, the plaintiff need not plead facts or the elements of the claim; therefore,
“it is enough in pleading a conspiracy merely to indicate the parties, general purpose, and
approximate date, so that the defendant has notice of what he is charged with.” Walker, 288 F.3d
at 1007.

Here, Lakin has sufficiently pled a civil conspiracy by pleading the parties, the purpose
behind the conspiracy, and the general dates of the conspiracy to give notice to Skaletsky (as well

as the other Defendants) of the claims against him. See Walker, 288 F.3d at 1007.


Globeground also seeks to dismiss the civil conspiracy claim against it. As stated above,
Lakin has sufficiently pled a civil conspiracy against all three Defendants.

For the reasons stated above, Skaletsky’s Motion to Dismiss is granted in part and denied in
part. Count I is dismissed with prejudice. Liberty’s Motion to Dismiss is denied. Globeground’s
Motion to Dismiss is granted in part and denied in part. Count V1 is dismissed without prejudice.
Lakin is granted leave to file an amended complaint as to those counts dismissed without prejudice,
if any, within fourteen days of this Order if he can do so consistent with his obligations under

Fed. R. Civ. Proc. I1.

out apd {202

Inited States District Judge


Globeground. Skaletsky accepted this change of status and referred Lakin to Edwards Hospital for
physica! therapy. Lakin went to the physical therapy as prescribed.

On August 31, 2001, Skaletsky, at the request of Liberty, and without examining Lakin,
released Lakin to return to work with no restrictions. Skaletsky conveyed the work release to
Liberty. On September 12, 2001, Liberty transmitted Skaletsky’s report to Globeground.

Lakin continued to suffer from the injuries he sustained from the June 14, 2001 accident,
including memory loss and loss of range of movement in his fingers. Lakin did not return to
Globeground. Globeground terminated Lakin’s employment. Subsequent to notification of his
termination, Lakin retumed to Globeground to retrieve his tools that had been stored at Globeground.
Lakin found that approximately $10,000 worth of his tools were missing from his tool box.
Globeground also failed to offer Lakin continued medical insurance after his termination and did not
pay Lakin approximately $2,000 in accrued vacation pay.

Skaletsky's Motion to Dismiss

Skaletsky seeks dismissal of Count I for failure to state a claim. The parties agree that Lakin
first visited Skaletsky because of an accident at work and that the provisions of the Workers’
Compensation Act (“WCA”) applied. Section 8(a) of the WCA provides, in part:

Every hospital, physician ... rendering treatment or services in
accordance with the provisions of this Section shall upon written
Tequest furnish and complete reports thereof to, and permit their
records to be copied by, the employer, the employee or his
independents, as the case may be, or any other party to any
proceeding for compensation before the Commission, or their
attorneys.

820 ILCS 305/8(a). Accordingly, employers and workers’ compensation insurers have a right to the

medical records of an individual seeking a claim under the WCA. See Mercer v. Carle Foundation


Liberty’s Motion to Dismiss

Liberty also seeks to dismiss the civil conspiracy claim against it for failure to state a claim.

For the reasons stated above, Liberty’s Motion to Dismiss is denied.
Globeground’s Motion to Dismiss

Globeground seeks to dismiss Count III. Globeground contends that Lakin’s wrongful
discharge claim fails because he has not pled a causal link between his termination of employment
and the exercise of his rights under the WCA. Globeground’s argument is without merit.

Lakin pled that he was injured three times at work. After his third injury, his continued
employment was threatened. Following another accident, his employment was terminated. These
allegations sufficiently plead a causal link between his termination of employment and the exercise
of his rights under the Worker’s Compensation Act. Furthermore, while Globeground may have had
the right to rely on Skaletsky’s medical report, the factual question of whether the alleged
justification for Lakin’s termination was pretextual is not appropriate at this stage of litigation.

Globeground next contends that Count VI should be dismissed because Lakin does not have
standing to bring the claim.

Lakin’s COBRA claim is based on alleged violations of the notice requirements which are
codified at 29 U.S.C. § 1166. Sections 1132(a)(1)(A) and 1132(c) of the Employment Retirement
Income Security Act of 1974 (“ERISA”) allow only “participants” and “beneficiaries” to bring a civil
action against a party that fails to meet the requirements of 29 U.S.C. § 1166. Accordingly, Lakin
must be either a participant or a beneficiary in order to have standing to bring the instant claim. See

Leo v. Laidlaw, Inc., 38 F. Supp, 2d 675, 678 (N.D. Ill. 1999) (Leo).


‘WAinute Order Fora(06/97)

United States District Court, Northern District of [linois

Menge Maghtte Judge John W. Darrah “han aigned Judge
CASE NUMBER 03 C 3333 DATE 9/4/2003
CASE LAKIN vs SKALETSKY
TITLE
(In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,}
DOCKET ENTRY:
(1) Q Filed motion of [ use listing in “Motion” box above.]
(Q) i) Brief in support of motion due
Q) Qa Answer brief to motion due__. Reply to answer briefdue__.
(4) a Ruling/Hearing on setfor saat
(5) a Status hearing{held/continued to] (set for/re-set for] on setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on____——ssetfor_—— saat.
) a} Trial{set for/re-set for]on_ at
(8) 0 [Bench/Jury trial] [Hearing] held/continuedto___—— at.
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OFRCP4(m) O Local Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).
qo) [Other docket entry] Status hearing held and continued to 10/2/03 at 9:00 am. Enter

Memorandum Opinion And Order. Skaletsky’s motion to dismiss is granted in part and denied in part.
Count I is dismissed with prejudice. Liberty’s motion to dismiss is denied. Globeground’s motion to
dismiss is granted in part and denied in part. Count VJ is dismissed without prejudice. Lakin is granted
leave to file an amended complaint as to those counts dismissed without prejudice, ifany, within fourteen
days of this order if he can do so consistent with his obligations under Fed.R.Civ.Proc. 11.

aia {For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court.

No notices required.

umber of notices

SEP 05 2003

Notices mailed by judge's staff,
Notified counsel by telephone.
| Docketing to mail notices.

Mail AO 450 form. Lunod fatalsia sn
Copy to judge/magistrate judge. Axa Wd
GHD Nd he d35 €0
courtroom
is deputy gpg a4 OFS
Batoltite received in
central Clerk's Office



A participant is “any employee or former employee ... who is or may become eligible to
receive a benefit of any type from an employee benefit plan.” 29 U.S.C. § 1002(7). A participant
includes “employees in, or reasonably expected to be in, currently covered employment, or former
employees who .., have a reasonable expectation of returning to covered employment or who have
a colorable claim to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117
(1989) (Firestone). In order to establish that he or she “may become eligible” for benefits, a plaintiff
“must have a colorable claim that (1) he ... will prevail in a suit for benefits, or that (2) eligibility
requirements will be fulfilled in the future.” Firestone, 498 U.S. at 117.

Here, Lakin is no longer an employee of Globeground, and there are no allegations that he
expects to be employed by Globeground in the future. Accordingly, in order for Lakin to qualify as
a participant, he must have a colorable claim to vested benefits. Lakin concedes that he has not
alleged a colorable claim to vested benefits.

Because the compliant fails to allege that Lakin was a “participant” when he filed suit, Lakin
only has standing to bring the COBRA claim if he sufficiently alleges that he was a “beneficiary”
at the time the suit was filed.

A “beneficiary” is a “person designated by a participant, or by the terms of an employee
benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). Lakin
concedes that he has not alleged he has a claim for benefits or that he was damaged by the failure
to receive benefits. Accordingly, Lakin has not sufficiently pled he is a “beneficiary”.

Because Lakin fails to allege that he was either a participant or beneficiary at the time the suit

was filed, he lacks standing to bring Count VI; and it is dismissed without prejudice.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
beara
DAVID LAKIN, ) ioe
) SEP 05 2003
Plaintiff, )
Y. )
) No. 03 C 3333
GARY SKALETSKY, M.D.; LIBERTY MUTUAL )
INSURANCE COMPANY; and ) Judge John W. Darrah
GLOBEGROUND NORTH AMERICA, LLC, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, David Lakin (“Lakin”), filed a multi-count Complaint against the Defendants.
Count I alleges failure to maintain medical confidentiality against Gary Skaletsky (“Skaletsky”).
Count II alleges failure to maintain medical confidentiality against Liberty Mutual Insurance
Company (“Liberty”). Count II alleges wrongful discharge against Globeground North America
(“Globeground”). Count IV alleges a civil conspiracy between Skaletsky, Liberty, and Globeground.
Count V alleges a breach of bailment against Globeground. Count VI alleges a violation of the
Consolidated Omnibus Budget Reconciliation Act (“COBRA), 29 U.S.C. § 1161, et seg. against
Globeground. Count VII alleges a claim for accrued vacation pay against Globeground. Presently
before the Court are: (1) Skaletsky’s Motion to Dismiss', (2) Liberty’s Motion to Dismiss, and

(3) Globeground’s Motion to Dismiss.

'Skaletsky titled his motion a Motion for Summary Judgment. However, he seeks
dismissal of the claims against him for failure to state claims upon which relief can be granted.
A footnote indicates that the motion was titled a motion for summary because Skaletsky referred
to matters outside the pleadings, The Court interprets Skaletsky’s motion as a motion to dismiss
and will not “convert” the motion to a motion for summary judgment. See Wilkow v. Forbes,
Inc., 241 F.3d 552, 555 (7" Cir. 2001). Accordingly, the Court will not consider materials
outside the pleadings.


In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any
reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-
Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not required
to plead the facts or the elements of a claim, with the exceptions found in Federal Rules of Civil
Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d
1005, 1007 (7th Cir. 2002) (Walker). Dismissal is warranted only if“it appears beyond a doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The “suit should not be dismissed if it is possible to
hypothesize facts, consistent with the complaint, that would make out a claim.” Graehling v. Village
of Lombard, Ill., 58 F.3d 295, 297 (7th Cir, 1995).

Areading of the Complaint supports the following summary of the alleged operative conduct
of the parties.

Lakin was an employee of Hudson General LLC (“Hudson”), Globeground is the successor
company to Hudson. Lakin was injured while working at O’Hare International Airport on
June 14, 2001. Prior to the injury of June 14, 2001, Lakin had sustained three injuries to his knee
while at work. Globeground threatened Lakin with termination if he sustained another accident on
the job.

On July 2, 2001, Liberty, as the workers’ compensation insurance carrier for Globeground,
sent Lakin to Skaletsky for an evaluation to be held on July 10, 2001. This examination was held
as scheduled, and a report was sent to Liberty.

Liberty sent Lakin for a second examination by Skaletsky, After the July 31, 2001

examination, Lakin asked Skaletsky to treat him for the injuries he had sustained while working at