Opinion
X04HHDCV064043672S.
11-20-2012
Mary V. RORABACK v. The STANLEY WORKS, et al.
UNPUBLISHED OPINION
BRIGHT, J.
I. INTRODUCTION
In this employment matter, the plaintiff, Mary V. Roraback, filed a two-count complaint against her former employer, defendant The Stanley Works (" Stanley"), and Specialty Risk Services, Inc. and/or Specialty Risk Services, LLC (" SRS"), the third-party administrator (" TPA") of Stanley's self-insured workers' compensation policy for alleged violations of Connecticut's Workers' Compensation Act, General Statutes § 31-275 et seq. (" Act"). In Count One, the plaintiff has alleged wrongful termination pursuant to General Statutes § 31-290a. In Count Two, the plaintiff has alleged intentional infliction of emotional distress. Stanley has filed a motion for summary judgment arguing that it is entitled to judgment on both counts.
II. BACKGROUND
A. PLAINTIFF'S INJURIES AND TREATMENT
Roraback had been an employee of Stanley Works for over fifteen years. On January 7, 2003, the plaintiff reported to Kathryn Brennan (" Brennan"), the Environmental and Health Safety Coordinator at Stanley, that she was experiencing numbness, tingling and pain in her left hand and upper arm. Stanley sent the plaintiff to its workers' compensation treater who, after examining the plaintiff, prescribed physical therapy and placed the plaintiff on light duty work restrictions. Her treating physician ordered a nerve conduction study which showed that the plaintiff was suffering from carpal tunnel syndrome of her left wrist and elbow. The plaintiff was then referred to a hand surgeon, Dr. Carangelo, who recommended surgery to resolve the problem. All medical procedures requested by the plaintiff's treating physicians for this injury were authorized by Stanley. The surgery was performed on March 4, 2003. Two and a half months after that procedure, the plaintiff was able to return to full duty work. In total, the plaintiff was treated and able to return to work within five months of the date of her injury.
The plaintiff alleges that in November 2003, an altercation occurred between herself and a fellow co-worker. The plaintiff alleges that she had asked Mike Mariano for assistance with the machine she was operating. Mr. Mariano allegedly approached the plaintiff and screamed and yelled at her calling her lazy and incompetent in front of her whole department. The plaintiff left before her day was completed and took a leave of absence from November 2003 through January 2004 claiming the incident caused her emotional distress. She filed a workers' compensation claim for the November 2003 incident. Stanley denied that claim.
On January 22, 2004, the plaintiff filed a third workers' compensation claim alleging injury to her neck, right shoulder, elbow and hand. When the plaintiff reported this injury to Stanley, Brennan emailed Kristin Sabatino (" Sabatino"), the director of human resources, and Tim Chartrand (" Chartrand"), the plaintiff's supervisor, expressing her doubt about the legitimacy of the claim and suggesting that Stanley take an " aggressive approach." The Brennan email of January 22, 2004 reads as follows:
Unbelievable! Mary Roraback is claiming RT hand strain from Carpel Tunnel. She doesn't even do repetitive work and she just got back to work because of her work related ‘ stress.’ This is another example of an employee who is cheating the workers' compensation system. We have to fix this. I want to address this at the communications meeting. Any thoughts on what to say? I think we need to take an aggressive approach.
In a follow-up email to Sabatino on that same day, Brennan stated, " Kris, just to let you know, I did call the Doctors Treatment Center to give them a heads up. We are going to deny this all the way. I suggest we place surveillance on her also."
On that same day, the plaintiff was seen at the Doctors Treatment Center and diagnosed with epicondylitis, carpal tunnel syndrome of the right elbow and right hand and put on light duty work restrictions. She was also referred to Dr. Spar, an orthopedic specialist.
Over the course of the next few days, Brennan contacted SRS to inform them that Stanley intended to deny this claim because Stanley believed that the plaintiff was attempting to cheat the workers' compensation system. Brennan informed SRS that she believed the claim was fraudulent because the plaintiff did not perform repetitive work. Based on this information, SRS marked the claim with " Fraud Flags" and noted in their file that the employer wants the claim investigated.
Discussions between Brennan and SRS led to the decision to order an independent medical examination (" IME") for the plaintiff, thus an IME was ordered on January 29, 2004. The plaintiff was to be seen by Dr. Kelly for her IME. On February 12, 2004, the plaintiff was seen by Dr. Spar who diagnosed her with painful upper extremity and stated, " I think this is from the type of work she does." On March 3, 2004, the plaintiff was seen by Dr. Kelly whose impression was that the plaintiff had right epicondylitis, right shoulder pain, and probable right carpal tunnel syndrome. Dr. Kelly recommended formal EMG nerve conduction studies of the right extremity and kept her on light duty. A few days later, the plaintiff made a request to see Dr. Carangelo, the surgeon who treated her 2003 injuries. SRS denied this request.
In an April 29, 2004 addendum, Dr. Kelly opined that the plaintiff could not perform her regular job functions until the issues raised in his March report were diagnosed and resolved. He further opined that it was probable that all of her upper extremity issues were compensable based on a review of her job description. In May 2004, Dr. Spar performed a nerve conduction study which showed signs of carpal tunnel syndrome in her wrist. No study was done of the ulnar nerve, thus no diagnosis was provided regarding her elbow. After receiving the reports from the IME, Stanley accepted the plaintiff's claim as compensable.
On September 8, 2004, Dr. Spar referred the plaintiff to Dr. Carangelo for a second opinion and on that same day, Stanley scheduled the plaintiff for a second IME. This IME was to be conducted by Dr. Dugdale. After examining the plaintiff, Dr. Dugdale opined that it was plausible that her right shoulder symptoms could be attributed to her work environment.
In October 2004, the plaintiff was seen by Dr. Carangelo who ordered an EMG and nerve conduction study for the plaintiff's elbow. That request was denied by Stanley. Dr. Carangelo recommended surgery to address the plaintiff's right shoulder problem. This surgery was authorized by Stanley and performed in December 2004. In January 2005, a second surgery was performed by Dr. Carangelo, a surgical right carpal tunnel release. In March 2005, Dr. Carangelo made another request for an EMG of the plaintiff's right elbow and this time the EMG was authorized.
After the EMG was performed, Dr. Carangelo notified SRS that the EMG had revealed that the plaintiff had cubital tunnel syndrome and that the plaintiff would need elbow surgery. Dr. Carangelo scheduled the surgery for May 17, 2005 but Stanley denied Dr. Carangelo's request for this last surgery stating that there was no medical evidence supporting a causal connection between the injury and her employment. Stanley then sent the plaintiff for another IME with Dr. Kelly which did not occur until June 2005. After this IME, Stanley advised Dr. Carangelo that it would authorize him to perform an ulnar neurolysis but not an ulnar nerve transposition. The dispute as to which procedure to perform was reviewed by the workers' compensation commission which eventually ordered Stanley to authorize the ulnar nerve transposition. Dr. Carangelo performed this final surgery on December 23, 2005 and the plaintiff was thereafter given a full duty work release.
B. LEAVE OF ABSENCE AND PLAINTIFF'S TERMINATION
On June 29, 2004, Stanley had a meeting with the plaintiff to discuss her work-related injuries. Sabatino, Brennan, Chartrand and Thomas Lamb were all present at this meeting. The purpose of the meeting was to inform the plaintiff that Stanley would no longer be able to provide her with light duty work and, therefore, they were placing her on a workers' compensation leave of absence. The plaintiff stated that she was told to get better and return to work when she was able to be released to full duty work. She further claimed that no one at the meeting informed her that if she was unable to return to full duty work within a year she would be terminated. Lastly, she stated that no one told her that the one-year clock had started the day Stanley put her on the leave of absence.
The collective bargaining agreement that governed the plaintiff's employment with Stanley provides as follows:
1) A Leave of Absence for illness or disability for a period of up to one (1) year will be granted by the Company upon receipt of medical evidence that the employee is unable to work. Such evidence will be considered the employee's written application for leave. If the employee's absence will continue beyond such one (1) year period, up to an additional one (1) year will be granted upon submission to the Company of a statement from the employee's doctor indicating that the employee will be able to return to work within such additional one (1) year period. In unusual situations, consideration will be given for an extension beyond such additional one (1) year period upon presentation of medical evidence that the employee will be able to return to work.
On May 26, 2005, Sabatino sent a letter to the plaintiff which stated as follows:
You began your medical leave of absence on June 29, 2004. Under Stanley's leave of absence policy, employees are allowed leaves of absence for a period equal to their length of service or one year, whichever is shorter. In your case, your service allowed you to take a leave of absence for up to one year. This leave expires on June 29, 2005. We expect you will return to work full-time by that date, able to perform all of the essential functions of your job, with or without reasonable accommodation. If you do not expect to be able to do so, but feel you can within a reasonable period of that date, you must call me to discuss the situation. If you are unable to return from your leave before it expires, we will consider you to have resigned your employment and will terminate your employment with Stanley effective June 30, 2005.
A letter dated June 10, 2005 was sent by plaintiff's counsel, Harvey L. Levine, to Stanley, in response to its May letter to the plaintiff. In that letter, Levine informed Stanley that he had been retained by the plaintiff to represent her with regards to her January 2004 claim. The letter continues as follows:
In a nut shell, Ms. Roraback is opposed to this action on the part of Stanley for the reason that she is still doctoring from an injury which she received on the job; she has not been rated or received MMI from her physician, further workers' compensation who is in effect Stanley, is actually taking action which a reasonable person could interpret to be intentionally slowing down her ability to return to work ... In summary, Ms. Roraback is inquiring into the availability of disability coverage and she is adamantly opposed to your terminating her before she knows what her physical status is. If she is terminated, then she will take this to be a discriminatory firing.
Stanley responded to Levine's letter on June 23, 2005. In that letter, Sabatino reiterated that, under Stanley's policies, the plaintiff was entitled to a one-year leave of absence and the plaintiff's one year period was set to expire on June 29, 2005. Sabatino continues that " [t]his leave of absence policy is neutrally applied and non-discriminatory." Sabatino attached a copy of the May 2005 letter to her response and stated, " [t]his letter speaks for itself and accurately summarized the Company's policy on this matter." She concluded by stating, " [i]n any event, because her disability is work-related, workers' compensation is the exclusive remedy for any damages, including lost time wage replacement."
The plaintiff was unable to return to work by June 29, 2005, thus Stanley terminated her employment.
III. SUMMARY JUDGMENT STANDARD
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations and internal quotation marks omitted.) Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). " Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citation omitted.) Water & Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] ." Home Ins. Co. v. Aetna Life & Casualty, Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
IV. DISCUSSION
A. COUNT ONE
Stanley argues that it is entitled to summary judgment on the wrongful termination claim because the plaintiff cannot establish a causal connection between her exercise of rights under the Act and her termination in 2005. Additionally, Stanley argues that, even if the plaintiff were able to establish a causal connection between her exercise of her rights under the Act and her termination, Stanley is still entitled to summary judgment because the plaintiff has not put forth evidence that her termination under Stanely's allegedly neutral absence policy was pretextual.
The gravamen of Count One of the complaint is that Stanley terminated the plaintiff allegedly in retaliation for her serial filing of workers' compensation claims. Specifically, the plaintiff alleges that Stanley manipulated the workers' compensation system to prolong her medical treatment for her 2004 injury and also allegedly refused to provide the plaintiff with light duty work thus giving Stanley the excuse to place her on a leave of absence. Thereafter, Stanley allegedly used the pretext of its one-year leave of absence policy to terminate her employment.
General Statute § 31-290a provides, in relevant part, as follows: " No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter." It is well-established law that, " [i]n setting forth the burden of proof requirements in a 31-290a action, [our courts] look to federal law for guidance ... In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 667 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity ... The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly showing that the employer's proffered explanation is unworthy of credence." (Citations omitted, internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Conn., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990).
" [I]n order to establish a prima facie case of discrimination under § 31-290a, a plaintiff must show that she was exercising a right afforded her under the act and that the defendant discriminated against her for exercising that right ... In other words, the plaintiff must show a causal connection between exercising her rights under the act and the alleged discrimination she suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised her rights under the act. See Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir.2001) (to establish prima facie case of discrimination, ‘ the plaintiff must first present sufficient evidence ... that is, evidence sufficient to permit a rational trier of fact to find [1] that she engaged in protected [activity] ... [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action’ [internal quotation marks omitted])." (Citations omitted; internal quotation marks omitted.) Mele v. Hartford, 270 Conn. 751, 776, 855 A.2d 196 (2004).
The undisputed facts of this case show that the plaintiff engaged in protected activity, that is, filing claims under Stanley's workers' compensation policy, and that Stanley was aware of this activity. It is also undisputed that Stanley took adverse action against the plaintiff when it terminated her employment. Therefore, the question the court must decide is whether a retaliatory motive played a part in Stanley's termination of the plaintiff. " A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant." Martin v. Town of Westport, 108 Conn.App. 710, 719, 950 A.2d 19 (2008).
The plaintiff has produced direct evidence of retaliatory animus directed against her in the form of Kathryn Brennan's January 22, 2004 email in which Brennan accuses the plaintiff of cheating the workers' compensation system and then recommending that Stanley take an aggressive approach to the plaintiff's workers' compensation claim. In a follow-up email, Brennan stated that, " We are going to deny this all the way. I suggest we place surveillance on her also." These responses from Stanley were made on the very day that the plaintiff reported her injury, prior to any attempt to investigate the legitimacy, or lack thereof, of the plaintiff's injury. Stanley had already prejudged that the plaintiff's claim was bogus before it had any evidence or facts to support its position. Thus, the plaintiff has established that there exists a genuine issue of material fact as to whether a retaliatory motive played a part in Stanley's decision to ultimately terminate her employment.
Because, at this stage of the proceedings, the plaintiff has established a prima facie case of discrimination, the burden now shifts to Stanley to produce evidence of a legitimate, nondiscriminatory reason for its actions. Stanley argues that the plaintiff was terminated pursuant to its neutral absence control policy and that under Connecticut law, Stanley was not required to retain an employee who was unable to perform his or her job simply because that inability resulted from a work-related injury. Stanley further argues that " there is no evidence that any management employee made any comments indicating animus toward Plaintiff due to her work injury or for having filed a workers' compensation claim." Stanley's motion for summary judgment (# 217), p. 23. However, it is unclear to the court how being accused of cheating the workers' compensation system by Kathryn Brennan, Stanley's Environmental and Health Safety Coordinator, does not constitute evidence of animus toward the plaintiff for having filed a workers' compensation claim. The undisputed facts also establish that when the plaintiff received the recommended treatments for her January 2003 injury, she was able to return to work within five to six months of the injury date. The final surgery that the plaintiff needed for her 2004 injuries was scheduled for May 17, 2005. Stanley, however, denied Dr. Carangelo's request to perform this surgery and, instead, ordered another IME for the plaintiff despite the fact that Stanley had already accepted that her injuries were compensable and had already authorized surgeries to treat her right shoulder and wrist. The dispute over the treatment for her elbow was eventually resolved by the workers' compensation commission which ordered Stanley to authorize the procedure recommended by Dr. Carangelo. Due to all of the back and forth, however, this surgery was not performed until December 2005. The plaintiff was eventually cleared to return to full duty work in June 2006, approximately six months after her last surgery.
Stanley has offered no explanation as to why the plaintiff would not have been entitled to an additional one-year leave of absence as provided for in the collective bargaining agreement. Stanley was aware that the plaintiff was attempting to complete her treatment and would have had her last surgery on May 17, 2005 but for the additional IME Stanley required. Even with the delay caused by Stanley's conduct, the plaintiff was eventually cleared to return to full duty work, June 2006, within a year from when she was originally suppose to have returned to work, June 2005. Thus, had Stanley granted her the additional year leave of absence, the plaintiff would likely have been able to return to work. Consequently a reasonable factfinder could conclude that Stanley has failed to carry its burden of producing a legitimate, non-discriminatory reason for its actions. Even if it could, a reasonable factfinder could also conclude that Stanley's purported rationale was pretextual and unworthy of belief. As such, there exists genuine issues of material fact with respect to Stanley's reasons for terminating the plaintiff. Summary judgment as to Count One is denied.
B. COUNT TWO
In Count Two, the plaintiff has alleged intentional infliction of emotional distress due to the dilatory treatment of her January 2004 injury. Stanley argues it is entitled to summary judgment because the claim is barred by the exclusivity provision of the Act and the allegations against it do not rise to the level of ‘ egregious conduct’ such that the claim would fall under the limited exception to the exclusivity provision recognized in DeOliveira v. Liberty Mutual, 273 Conn. 487, 870 A.2d 1066 (2005).
The elements a plaintiff must prove in order to establish a claim for intentional infliction of emotional distress are well established. The four necessary elements are: " (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe ... Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ... Only where reasonable minds disagree does it become an issue for the jury." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). " [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous." (Internal quotation marks omitted.) Gillians v. Vivanco-Small, 128 Conn.App. 207, 211, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 72 (2011). " Liability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
In DeOliveira, the Connecticut Supreme Court held that the exclusivity provision of the Act bars claims against an employer or its insurer for bad faith processing of workers' compensation claims. DeOliveira v. Liberty Mutual, supra, 273 Conn. at 506. As this court has already explained in its June 2011 MOD, at p. 11, " In reaching its decision in DeOliveira, the court engaged in a policy analysis to resolve the conflict, and stated, ‘ [i]n our view, in order to give a reasonable sphere of operation to the scheme the legislature has prescribed for the [workers' compensation] commission's adjudication of claims of delayed or improperly denied payment, we must read the exclusionary provision so as not to countermand or diminish the force of the provisions setting forth the specific remedies provided to address such conduct.’ [ DeOliveria v. Liberty Mutual Insurance Co., supra, 273 Conn. at 499.]"
The DeOliveira Court did recognize a limited exception to the exclusivity provision of the Act and explained as follows: " We recognize that there could be an instance in which an insurer's conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act." DeOliveira v. Liberty Mutual Insurance Co., supra, 273 Conn. at 507.
Two cases are cited in DeOliveira as examples of such ‘ egregious conduct’: " Unruh v. Truck Ins. Exchange, 7 Cal.3d 616, 620-21, 498 P.2d 1063, 102 Cal.Rptr. 815 (1972) (insurer's agent misrepresented identity to claimant, caused her to become emotionally involved with him and induced her to engage in unusual activities beyond her normal physical capabilities while another person filmed her, resulting in aggravations of her physical injury and physical and mental breakdown requiring hospitalization upon claimant discovering deceit); Young v. Hartford Accident & Indemnity Co., 303 Md. 182, 193, 492 A.2d 1270 (1985) (plaintiff who suffered emotional trauma after being assaulted at work alleged that carrier, in attempt to reduce its monetary exposure, insisted on psychiatric examination with deliberate intent that plaintiff either commit suicide or drop her claim, and plaintiff thereafter attempted suicide)." Id. This case is a far cry from these examples. Here, the evidence is simply that Stanley delayed processing the plaintiff's claim because it did not believe that the claim was legitimate. Even if this delay was motivated by bad faith, that is still not sufficient to avoid the exclusivity bar of the Act.
The plaintiff argues that Connecticut courts have held that an employer's intentional exacerbation of an employee's pre-existing medical condition could constitute extreme or outrageous conduct. See Redding v. Liberty Bank, Superior Court, judicial district of New London at New London, docket no. 531691 (May 22, 1995, Hendel, J.); Nguyen v. Newberry Industries, Inc., Superior Court, judicial district of Hartford, docket no. CV 97 0571319 (November 14, 1997, Hale, J.)
These cases, however, were decided in the context of motions to strike wherein the courts were asked to decide if the plaintiff had sufficiently alleged the elements of an intentional inflictions of emotional distress claim. More importantly, these cases were all decided prior to DeOliveira and Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 707, 874 A.2d 844 (2005), wherein our Appellate Court held that the plaintiff's emotional distress claim was barred by the exclusivity provision of the Act. As the court in DeOliveira noted, " [a] review of the legislative history of the provisions of the act addressing delayed payments evinces not only that the legislature, when enacting these provisions, was mindful that employers and insurers were in fact delaying payments, but also that it was aware of the stress and anxiety that naturally could result from such delays." DeOliveira v. Liberty Mutual Insurance Co., supra, 273 Conn. at 500. Thus, as the Court in DeOliveira explained, the legislative history of the Act demonstrates that the legislature clearly was aware and considered the emotional harm that could be caused by delays in processing such claims. In fact, it specifically discussed the limitation on claims such as that alleged in Count Two. " Common sense would suggest that, because workers' compensation benefits provide a substitute for wages, emotional distress inevitably would result from the withholding of such benefits that may provide the only means by which beneficiaries can pay their bills and expenses. Thus, the legislature clearly was aware of the scope and nature of this problem and presumably crafted the remedies it deemed fit." Id., at 500-01.
The allegations in the plaintiff's intentional infliction of emotional distress claim directly relate to Stanley's conduct in handling and processing the plaintiff's 2004 workers' compensation claim. The plaintiff has neither alleged, nor put forth any evidence of egregious conduct by Stanley that would fall within the limited exception to the exclusivity provision of the Act recognized by the Court in DeOliveira, and thus, the plaintiff's claim is barred by the exclusivity provision of the Act.
V. CONCLUSION
For all of the above stated reasons, the court concludes that genuine issues of material fact exist as to Stanley's reason for terminating the plaintiff, and thus, summary judgment is denied as to Count One. The court concludes, however, that the plaintiff has failed to produce evidence sufficient to show wrongdoing by Stanley separate and distinct from its actions taken to handle and process the plaintiff's workers' compensation claim. As such, the plaintiff's intentional infliction of emotional distress claim is barred by the Act and summary judgment shall enter in favor of Stanley as to Count Two.