Exclusive Remedy Provision of the Illinois Workers’ Compensation Act; the Impact When a Business Engages in an Illegal Activity
In Anna Daniels v. Venta Corp., et. al., 2022 IL App (2d) 210244, the Second District discussed the effect of the exclusive remedy provision when an employer engages in illegal conduct. The Plaintiff, Anna Daniels, was Special Administrator of the Estate of Darnell Daniels.
Darnell Daniels worked for a staffing company. Through the staffing company, he began working for American Bare Conductor (“ABC”). ABC manufactured wire. ABC subsequently became Venta Corp. (“Venta”), Sycamore Industrial Park Associates (“SIPA”) engaged ABC as an independent contractor to remove materials and scrap from a structure on SIPA’s property. The materials were known to contain asbestos, and SIPA engaged ABC on the project despite ABC lacking licensure and credentials to manage asbestos removal.
One week after he started working for ABC in August 1996, Daniels’ supervisor directed him to dispose of materials that contained asbestos; a fact not known to Daniels. Daniels was also unaware that the was being asked to perform work outside the premises leased by ABC. Two weeks after working on the scrap removal project, an ABC wire inspector informed Daniels that he was working with asbestos. The inspector gave Daniels a paper mask.
Daniels’ temporary assignment with ABC ended in October 1996. He left the staffing company and took a full-time position with ABC until 2003. In 2017, Daniels was diagnosed with mesothelioma. He filed suit against the defendants, including Venta (f/k/a, “ABC”) and SIPA, alleging premises liability, negligence, willful and wanton misconduct, and intentional tort. The circuit court dismissed multiple counts filed by Daniels, including the negligence and willful and wanton misconduct counts against Venta. The circuit court dismissed those counts on the premise that the counts were barred by the exclusive remedy provisions of the Illinois Workers’ Compensation Act and Occupational Diseases Act (“the Acts”). Daniels succumbed to mesothelioma in March 2021. His widow, Anna Daniels, pursued appeal before the 2nd District Appellate Court.
The Court noted in its analysis that the exclusive remedy provisions are embodied in two separate sections of the Acts; Section 5(a) of the Workers’ Compensation Act provides, in part that “there is no common law or statutory right to recover compensation or damages from the employer for or on account of any injury to health, disease, or death therefrom, other than for the compensation herein provided” 820 ILCS 310/5(a) (West 2016). Similarly, Section 11 of the Act provides that the compensation herein provided shall be the full, complete and only measure of the liability of the employer bound by election under this Act, and such employer’s liability for compensation and medical benefits under this Act shall be exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise, to any employee or his legal representative on account of damage, disability or death caused or contributed to by any disease contracted or sustained in the course of the employment.” Id. §11. Cases that have construed the exclusive remedy provisions in the context of the Workers’ Compensation Act also apply in the context of the Workers’ Occupational Diseases Act.
An employee can escape the exclusive remedy provisions of the Workers’ Compensation Act if the employee establishes that the injury (1) was not accidental, (2) did not arise from his employment, (3) was not received during the course of employment, or (4) was not compensable under the Workers’ Compensation Act. Collier v. Wagner Castings Co., 81 Ill. 2d 229 (1980)
The Appellate Court also addressed the borrowing/lending relationship that existed when Daniels worked for ABC on assignment from the staffing agency. To determine whether a borrowed employee relationship existed, the Court noted that the analysis requires evidence first that the borrowing employer had the right to direct and control the borrowed employee’s performance, and second, that there existed a contract of hire between the borrowed employee and the borrowing employer; either express or implied. A.J. Johnson Paving Co. v. Industrial Comm’n, 82 Ill. 2d 341 (1980).
The Appellate Court noted that both the exclusive remedy provisions and the borrowing/lending provisions of the Act require a contract of service. However, the Court found that when ABC directed Daniels to remove the asbestos, that directive violated the Commercial and Public Building Asbestos Abatement Act because ABC was not licensed to do that work. Accordingly, the subject matter of ABC and Daniels’s alleged contract was illegal and, therefore, unenforceable. Absent a valid contract of service, the exclusive remedy provision of the Workers’ Compensation Act would not bar Daniels from suing ABC. The Court held that the circuit court improperly dismissed the negligence and willful and wanton misconduct claims against Venta. The Court remanded the case back to the circuit court.
Attempts to erode the exclusive remedy provision of the Workers’ Compensation Act have been largely unsuccessful to date. In this case, it is difficult to disagree with the Court’s analysis that ABC’s disregard for asbestos mitigation laws nullified the contract of service. However, the concern with opening the gate in any capacity to allow a claimant to overcome the exclusive remedy provision of the Acts is that once the gate is open, there is no telling how wide it will open. How far with the courts go in negating contracts of service? To what extent will the courts look at an employer’s violation of health and safety laws? The answers remain to be seen.