Can An Employee Who Becomes Injured On The Job Collect Workers’ Compensation Benefits and File a Common Law Claim?
By Jennifer A. Kunze
One question that has become recurrent in civil practice, and that is often resolved by a dispositive motion, is whether an employee who becomes injured on the job can collect workers’ compensation benefits and then file a common law claim. The following discussion addresses the general premise that employees cannot recover both workers’ compensation benefits and common law damages and identifies the exceptions that apply.
Workers’ Compensation Act. Generally, an injured employee cannot seek and recover compensation under both the Workers’ Compensation Act (the “Act”) and the common law.1 Section 5(a) of the Workers’ Compensation Act provides:
No common law or statutory right to recover damages from the employer…or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of 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 any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.2
The purpose of the Act is to provide financial protection to workers for accidental injuries arising out of and in the course of their employment.3 Even psychological injuries, such as emotional distress, are recoverable under the Act.4 The Act imposes liability without fault against the employer and in return prohibits common law suits filed by the employee against the employer.5
Accidental Injuries. In order to fall within the exclusivity provision of the Act, an injury must be accidental. An “accidental injury” is anything that happens without design or an event which is unforeseen by the person to whom it happens.6 An injury is accidental within the meaning of the Act when it is traceable to a definite time, place, and cause, and occurs within the course of the employment unexpectedly and without affirmative act or design of the employee.7 Injuries are generally accidental from the employer’s point of view.
Scope of Employment. The plaintiff’s injury must also arise out of and be in the course of employment in order to fall within the exclusivity provision of the Act. An injury “arises out of” one’s employment if it originates from a risk connected with, or incidental to, the employment and involves a causal connection between the employment and the accidental injury.8 “Arising out of employment” refers to the origin or cause of the accident and requires a causal connection between the employment and the accidental injury.9 The injury must be connected with or incidental to the employment. An injury occurs within the “course of employment” when it occurs during employment or “on the job” and at a place where the claimant may reasonably perform their job duties and while a claimant fulfills those duties or engages in some incidental employment duties.10 Injuries sustained on the employer’s premises within a reasonable time before and after work are generally considered to be in the course of employment.11
Actions against Negligent Co-Employees. The Act also provides the same protection to negligent coemployees. The Workers’ Compensation Act provides that workers’ compensation benefits are the exclusive remedy for an injured employee against a negligent co-employee acting within the course and scope of employment.12 In other words, an employee is barred from bringing a common law suit (i.e., negligence claim) against his co-employee for a work related injury unless that employee shows that a legally recognized exception to the exclusive remedy provision of the Act applies.13
Exceptions to Exclusivity Provision. There are four exceptions to the exclusivity provision of the Act. In order for an injury to fall outside of the Act, a plaintiff must allege and prove the injury: (1) was not accidental, (2) did not arise out of the employment, (3) did not occur within the course of employment, or (4) was non compensable under the Act.14 If plaintiff is unable to establish any of the exceptions, they are bound by the exclusivity provision of the Act. In order for an injury to be non-accidental or intentional, a plaintiff must allege and prove that the employer committed, commanded, or expressly authorized an intentional tort.15 When an injured employee has collected compensation on the basis that the injuries were compensable under the Act, the injured employee cannot then allege those injuries fall outside the Act’s provision by alleging willful and wanton misconduct.16 This is a difficult element for a plaintiff to establish. In order to establish the injury did not arise out of the employment or did not occur within the course of employment, the injury must not be work related. Some examples are slip and falls off the employer’s premises or a fall in the kitchen after getting home from work.
An injury is compensable under the Act if it arose out of and in the course of employment.17 In Folta v. Ferro Engineering, the Illinois Supreme Court recently addressed the issue of what constitutes a compensable injury. In Folta, the decedent was exposed to asbestos during the course of his employment with defendant. Forty-one years later, the decedent developed mesothelioma which resulted in his death. Under the Workers’ Occupational Diseases Act, decedent’s claim was barred by the twenty-five year limitation provision.18 Plaintiff, the administrator of decedent’s estate, argued the injury was non-compensable under the Act because there was no ability to recover due to the limitation provision. The Supreme Court rejected that argument and held that whether an injury is compensable is related to whether the type of injury fits into the purview of the Act rather than whether there is an ability to recover benefits.19
Another exception plaintiffs assert in opposition to the exclusivity provision, is that any benefits received by the employer were voluntary or unsolicited. This issue was explained in Copass v. Illinois Power Company.20 The plaintiff’s husband was killed in a job related explosion. Within a few days of his death, the decedent’s employer started making payments to plaintiff. Plaintiff did not file a workers’ compensation claim. The Copass court held:
[T]he uninitiated payments plaintiff accepted from Illinois Power are not sufficient to constitute her election to the benefits provided by the Act. Simply accepting voluntary payments from Illinois Power, without taking any affirmative action before the [Workers’ Compensation] Commission, is not a clear and unequivocal act evidencing an assertion that the death is compensable under the Act. To hold otherwise would allow employers to send payments to injured parties or bereaved families, characterize the payments as workers’ compensation benefits and terminate any option the employee or family might have to avoid the exclusivity-of-remedy rule under the Act.21
Other courts have similarly held that “the mere acceptance of unsolicited benefits offered by an employer is insufficient to bar a plaintiff’s common law claim.”22 In a more recent case, Garland v. Morgan Stanley and Company, the court held that the plaintiff’s claim was barred by the exclusivity provision of the Act even through the plaintiff refused to cash the benefits check she received from the insurance company.23 Therefore, prior to making a determination whether to bring a dispositive motion, it is important to know whether the plaintiff has filed a workers’ compensation claim and accepted or received benefits.
Another exception, that is rarely seen, is the dual capacity doctrine. The dual capacity doctrine is a limited exception to the exclusivity provision of the Act. Under this doctrine, “an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as an employer, a second capacity that confers on him obligations independent of those imposed on him as employer.”24 The test in applying the dual capacity doctrine is whether the second function of the employer generates obligations unrelated to those flowing from the first.25 There must be a separate and distinct persona. A separate theory of liability is not a basis for asserting this defense.26 An example of an employer in dual capacity is a chiropractor treating his own employee’s work-related injuries.27 By way of illustration, a chiropractor’s employee slips and falls injuring her back. The chiropractor treats the employee and is negligent in his care causing further injury to plaintiff. In this example, the plaintiff may assert the dual capacity exception and may be able to bring a common law negligence suit against the chiropractor relating to his treatment. In conclusion, unless the employee can establish: (1) the injury was not accidental, (2) the injury did not arise out of the scope of their employment, (3) the injury was not compensable under the Act, (4) the benefits received were unsolicited, or (5) the employer fell within the dual capacity doctrine, the employee’s remedies are limited to the Act. It is extremely difficult for a plaintiff who is injured on the job to file a common law suit against his or her employer or negligent co-employee. If and when the situation arises, plaintiff’s counsel should carefully think before filing suit and ensure one of the above exceptions apply. Defense attorneys should analyze whether their case is proper for a dispositive motion.
1. Zurowska v. Berlin Industries, Inc., 282 Ill. App.3d 540, 542, 667 N.E.2d 588 (1st Dist. 1996).
2. 820 ILCS 305/5(a).
3. Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121¶ 24, 996 N.E.2d 188 (2013), quoting Pathfinder Co. v. Industrial Commission, 62 Ill. 2d 556, 343 N.E. 2d 913 (1976).
4. Pathfinder Co. v. Industrial Commission, 62 Ill. 2d 56, 343 N.E. 2d 913, 917 (1976).
5. Garland, supra at ¶24.
6. Meerbrey v. Marshall Field and Co., 139 Ill. 2d 455, 463, 564 N.E. 2d 1222 (1990).
7. Garland, supra at ¶29.
8. Mores-Harvey v. The Industrial Commission, 345 Ill. App. 3d 1034, 1037, 804 N.E. 2d 1086 (3d Dist. 2004).
9. Walker v. Midwest Emery Freight Systems, 119 Ill. App. 3d 640, 647, 461 N.E. 2d 1373 (1st Dist. 1983).
11. Mores-Harvey v. The Industrial Commission, 345 Ill. App.3d at 1037.
12. Garland, supra at ¶25.
14. Id. at ¶26.
15. Meerbrey, supra, 139 Ill. 2d 464-465.
16. Collier v. Wagner Casting Co., 82 Ill.2d 229, 408 N.E.2d 198 (1980).
17. Folta v. Ferro Engineering, 2015 IL 118070.
18. Id. at ¶3.
19. Id. at ¶23.
20. Copass v. Illinois Power Co., 211 Ill. App. 3d 205, 569 N.E.2d 1211 (4th Dist. 1991).
21. Id. at 211-2.
22. Reed v. White, 397 Ill. App. 3d 975, 921 N.E. 2d 1243 (5th Dist. 2010).
23. Garland, supra ¶¶ 14, 51.
24. Id. at ¶ 34.
25. Smith v. Metropolitan Sanitary District of Greater Chicago, 77 Ill. 2d 313, 318-9, 396 N.E. 2d 524 (1979).
26. Id. at 319.
27. Id., quoting 2A A. Larson, Workmen’s Compensation § 72.80 (Supp. 1979).
Jennifer Kunze is a junior partner at The Miller Law Group, LLC in Hinsdale, Illinois. Her practice includes civil litigation defense, insurance coverage defense, employment law, real estate and family law. Ms. Kunze received her J.D. from The John Marshall Law School in 2005 and her Bachelor of Arts from Indiana University in Bloomington, Indiana, in 2002.