The Attack on the Exclusivity Provision of the Illinois Workers’ Compensation Act Continues
Section 5(a) of the Illinois Workers’ Compensation Act provides, in part:
No common law or statutory right to recover damages from the employee . . . for injury or death sustained by any employee while engaged in a line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury. 820 Ill. Comp. Stat. 305/5(a).
As such, Section 5(a) provides that the exclusive remedy for any employee injured as a result of a work-related accident may only pursue benefits that are provided under the Illinois Workers’ Compensation Act or Illinois Occupational Diseases Act.
Section 11 of both the Illinois Workers’ Compensation Act and of the Illinois Occupational Diseases Act (“the Acts”) provide that the compensation afforded under either Act is the full “measure of the responsibility of any employer that is automatically covered by the Act or which elects to be covered by the Act. As such, this Section of the Act requires an employer to issue benefits to any employee, or his/her estate,” if a claim is covered by the Illinois Workers’ Compensation of Occupational Diseases Acts. This Section of the Act(s) also limits the recovery an employee may obtain to the full amount of benefits that may otherwise be afforded under either Act.
Section 6(d) of the Acts sets forth two limitations with regard to the time during which a claim may be pursued before the Illinois Workers’ Compensation Commission. The first is that, but for cases involving exposure to radiological materials or asbestos, an Application must be filed within three years after the date of accident or exposure or the claim will be barred. The second limitation is that with regard to claims involving exposure to radiological materials or asbestos, an Application must be filed within 25 years of the last day the employee was “employed in an environment of hazardous radiological activity or asbestos” or that claim will also be barred. Also referred to as the period of repose, this Section specifically provides that if a claim is not filed within either 3 years or 25 years, depending upon the nature of the alleged injury, then no claim may be brought by an employee against an employer for those alleged injuries.
Recently, the Illinois legislature passed SB 1596, which amends the Illinois Workers’ Compensation Act and the Illinois Occupational Diseases Act. It provides that the above sections of the Acts that limit recovery do not apply to injuries or death caused by an occupational disease as to which the recovery of compensation benefits under the acts would be precluded due to the application of any period of repose or repose provision. Specifically, this bill would avoid the 25 year and the 3-year statute of repose after which the filing of a claim would be barred. The Bill further provides that, as to any such injury or occupational disease, the employee, the employee’s heirs, and any person having the standing to bring a civil action at law has a non-waivable right to bring such an action against any employer or employers. SB 1596 was a direct result of the Illinois Supreme Court’s decision in Folta v. Ferro Eng’g, 2015 IL 118070. Opponents of SB 1596 raise concern that this change will open the door to further erosion of the exclusivity provision of Sections 5(a) and 11 of the Illinois Workers’ Compensation Act.
The concern regarding further erosion of Section 5(a) is warranted. Further attack on the exclusivity provision of the Act is demonstrated in Webster v. First Express, Inc., et al, No. 1:2018cv02777 – Document 110 (N.D. Ill. 2019). In this case, Plaintiff, Webster, worked for Pomp’s Tire Service, Inc. (“Pomp’s”) as a truck driver. He died in a motor vehicle accident when he collided with a vehicle owned by First Express, a named defendant. Webster’s Estate (“Webster”) filed suit and also named Pomp’s as a defendant in the wrongful death and survival action. Webster previously filed a claim with the Illinois Workers’ Compensation Commission (“Commission”) alleging injuries arising out of and in the course of his employment with Pomp’s.
Pomp’s filed a Motion to Dismiss the wrongful death case on the basis that the civil action was barred by the exclusivity provision set forth in Section 5(a) of the Act, outlined above. A hearing on the motion followed. In its analysis, the Court noted that workers’ compensation benefits are the exclusive remedy for injured workers under the Act. Citing to Folta, the Court stated that, “despite limitations on the amount and type of recovery under the (Act), the (Act) is the employee’s exclusive remedy for work place injuries.”
Webster argued that the exclusive remedy provision did not apply and that the case was an exception to the exclusivity provision. The Illinois Supreme Court in Meerbrey v. Marshall Field’s, 139 Ill. 2d 455 (1990) outlined four exceptions of the exclusivity provision. One such exception applies if the employee can establish that the injury was not “accidental.” Webster then attempted to argue that Webster’s injury was the result of a deliberate act by Pomp’s with specific intent to injure. Specifically, Webster claimed that Pomp’s routinely asked Webster to work in excess of 40 hours per week and at times without a day off. Further, Webster claimed that Pomp’s knew that the workload would cause Webster to become exhausted and unable to maintain a safe level of alertness.
The Court rejected Webster’s theory noting that the courts have consistently concluded that “exposure to possible harm” is insufficient to fit within the “non-accidental injury” exception, which requires a finding of “specific intent.” The Court held that even reviewing these allegations in the light most favorable to Webster, the evidence was insufficient to establish a specific intent. The Court granted the Motion to Dismiss and agreed that the exclusivity provision should apply.
Whether this case will be appealed to the 7th Circuit Court of Appeals is an open question, but this case should serve as a clarion call to remain vigilant as to further attempts to diminish the exclusivity provision of Section 5(a) of the Illinois Workers’ Compensation Act.