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90_HB0033
820 ILCS 305/5 from Ch. 48, par. 138.5
820 ILCS 310/5 from Ch. 48, par. 172.40
Amends the Workers' Compensation Act and Workers'
Occupational Diseases Act by restoring certain provisions
regarding contribution and reduction of certain payments to
the form in which those provisions existed before Public Act
89-7 became law. Effective immediately.
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LRB9000698WHmg
1 AN ACT in relation to workers' compensation and
2 occupational diseases.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Workers' Compensation Act is amended by
6 changing Section 5 as follows:
7 (820 ILCS 305/5) (from Ch. 48, par. 138.5)
8 Sec. 5. (a) No common law or statutory right to recover
9 damages from the employer, his insurer, his broker, any
10 service organization retained by the employer, his insurer or
11 his broker to provide safety service, advice or
12 recommendations for the employer or the agents or employees
13 of any of them for injury or death sustained by any employee
14 while engaged in the line of his duty as such employee, other
15 than the compensation herein provided, is available to any
16 employee who is covered by the provisions of this Act, to any
17 one wholly or partially dependent upon him, the legal
18 representatives of his estate, or any one otherwise entitled
19 to recover damages for such injury.
20 However, in any action now pending or hereafter begun to
21 enforce a common law or statutory right to recover damages
22 for negligently causing the injury or death of any employee
23 it is not necessary to allege in the complaint that either
24 the employee or the employer or both were not governed by the
25 provisions of this Act or of any similar Act in force in this
26 or any other State.
27 Any illegally employed minor or his legal representatives
28 shall, except as hereinafter provided, have the right within
29 6 months after the time of injury or death, or within 6
30 months after the appointment of a legal representative,
31 whichever shall be later, to file with the Commission a
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1 rejection of his right to the benefits under this Act, in
2 which case such illegally employed minor or his legal
3 representatives shall have the right to pursue his or their
4 common law or statutory remedies to recover damages for such
5 injury or death.
6 No payment of compensation under this Act shall be made
7 to an illegally employed minor, or his legal representatives,
8 unless such payment and the waiver of his right to reject the
9 benefits of this Act has first been approved by the
10 Commission or any member thereof, and if such payment and the
11 waiver of his right of rejection has been so approved such
12 payment is a bar to a subsequent rejection of the provisions
13 of this Act.
14 (b) Where the injury or death for which compensation is
15 payable under this Act was caused under circumstances
16 creating a legal liability for damages on the part of some
17 person other than his employer to pay damages, then legal
18 proceedings may be taken against such other person to recover
19 damages notwithstanding such employer's payment of or
20 liability to pay compensation under this Act. In such case,
21 however, if the action against such other person is brought
22 by the injured employee or his personal representative and
23 judgment is obtained and paid, or settlement is made with
24 such other person, either with or without suit, then from the
25 amount received by such employee or personal representative
26 there shall be paid to the employer the amount of
27 compensation paid or to be paid by him to such employee or
28 personal representative including amounts paid or to be paid
29 pursuant to paragraph (a) of Section 8 of this Act. If the
30 employee or personal representative brings an action against
31 another person and the other person then brings an action for
32 contribution against the employer, the amount, if any, that
33 shall be paid to the employer by the employee or personal
34 representative pursuant to this Section shall be reduced by
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1 an amount equal to the amount found by the trier of fact to
2 be the employer's pro rata share of the common liability in
3 the action.
4 Out of any reimbursement received by the employer
5 pursuant to this Section the employer shall pay his pro rata
6 share of all costs and reasonably necessary expenses in
7 connection with such third-party claim, action or suit and
8 where the services of an attorney at law of the employee or
9 dependents have resulted in or substantially contributed to
10 the procurement by suit, settlement or otherwise of the
11 proceeds out of which the employer is reimbursed, then, in
12 the absence of other agreement, the employer shall pay such
13 attorney 25% of the gross amount of such reimbursement.
14 If the injured employee or his personal representative
15 agrees to receive compensation from the employer or accept
16 from the employer any payment on account of such
17 compensation, or to institute proceedings to recover the
18 same, the employer may have or claim a lien upon any award,
19 judgment or fund out of which such employee might be
20 compensated from such third party.
21 In such actions brought by the employee or his personal
22 representative, he shall forthwith notify his employer by
23 personal service or registered mail, of such fact and of the
24 name of the court in which the suit is brought, filing proof
25 thereof in the action. The employer may, at any time
26 thereafter join in the action upon his motion so that all
27 orders of court after hearing and judgment shall be made for
28 his protection. No release or settlement of claim for
29 damages by reason of such injury or death, and no
30 satisfaction of judgment in such proceedings shall be valid
31 without the written consent of both employer and employee or
32 his personal representative, except in the case of the
33 employers, such consent is not required where the employer
34 has been fully indemnified or protected by Court order.
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1 In the event the employee or his personal representative
2 fails to institute a proceeding against such third person at
3 any time prior to 3 months before such action would be
4 barred, the employer may in his own name or in the name of
5 the employee, or his personal representative, commence a
6 proceeding against such other person for the recovery of
7 damages on account of such injury or death to the employee,
8 and out of any amount recovered the employer shall pay over
9 to the injured employee or his personal representatives all
10 sums collected from such other person by judgment or
11 otherwise in excess of the amount of such compensation paid
12 or to be paid under this Act, including amounts paid or to be
13 paid pursuant to paragraph (a) of Section 8 of this Act, and
14 costs, attorney's fees and reasonable expenses as may be
15 incurred by such employer in making such collection or in
16 enforcing such liability.
17 This amendatory Act of 1995 applies to causes of action
18 accruing on or after its effective date.
19 (Source: P.A. 89-7; eff. 3-9-95.)
20 Section 10. The Workers' Occupational Diseases Act is
21 amended by changing Section 5 as follows:
22 (820 ILCS 310/5) (from Ch. 48, par. 172.40)
23 Sec. 5. (a) There is no common law or statutory right to
24 recover compensation or damages from the employer, his
25 insurer, his broker, any service organization retained by the
26 employer, his insurer or his broker to provide safety
27 service, advice or recommendations for the employer or the
28 agents or employees of any of them for or on account of any
29 injury to health, disease, or death therefrom, other than for
30 the compensation herein provided or for damages as provided
31 in Section 3 of this Act. This Section shall not affect any
32 right to compensation under the "Workers' Compensation Act".
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1 No compensation is payable under this Act for any
2 condition of physical or mental ill-being, disability,
3 disablement, or death for which compensation is recoverable
4 on account of accidental injury under the "Workers'
5 Compensation Act".
6 (b) Where the disablement or death for which
7 compensation is payable under this Act was caused under
8 circumstances creating a legal liability for damages on the
9 part of some person other than his employer to pay damages,
10 then legal proceedings may be taken against such other person
11 to recover damages notwithstanding such employer's payment of
12 or liability to pay compensation under this Act. In such
13 case, however, if the action against such other person is
14 brought by the disabled employee or his personal
15 representative and judgment is obtained and paid or
16 settlement is made with such other person, either with or
17 without suit, then from the amount received by such employee
18 or personal representative there shall be paid to the
19 employer the amount of compensation paid or to be paid by him
20 to such employee or personal representative, including
21 amounts paid or to be paid pursuant to paragraph (a) of
22 Section 8 of the Workers' Compensation Act as required under
23 Section 7 of this Act. If the employee or personal
24 representative brings an action against another person and
25 the other person then brings an action for contribution
26 against the employer, the amount, if any, that shall be paid
27 to the employer by the employee or personal representative
28 pursuant to this Section shall be reduced by an amount equal
29 to the amount found by the trier of fact to be the employer's
30 pro rata share of the common liability in the action.
31 Out of any reimbursement received by the employer,
32 pursuant to this Section the employer shall pay his pro rata
33 share of all costs and reasonably necessary expenses in
34 connection with such third party claim, action or suit, and
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1 where the services of an attorney at law of the employee or
2 dependents have resulted in or substantially contributed to
3 the procurement by suit, settlement or otherwise of the
4 proceeds out of which the employer is reimbursed, then, in
5 the absence of other agreement, the employer shall pay such
6 attorney 25% of the gross amount of such reimbursement.
7 If the disabled employee or his personal representative
8 agrees to receive compensation from the employer or accept
9 from the employer any payment on account of such
10 compensation, or to institute proceedings to recover the
11 same, the employer may have or claim a lien upon any award,
12 judgment or fund out of which such employee might be
13 compensated from such third party.
14 In such actions brought by the employee or his personal
15 representative, he shall forthwith notify his employer by
16 personal service or registered mail, of such fact and of the
17 name of the court in which the suit is brought, filing proof
18 thereof in the action. The employer may, at any time
19 thereafter join in the action upon his motion so that all
20 orders of court after hearing and judgment shall be made for
21 his protection. No release or settlement of claim for damages
22 by reason of such disability or death, and no satisfaction of
23 judgment in such proceedings, are valid without the written
24 consent of both employer and employee or his personal
25 representative, except in the case of the employers, such
26 consent is not required where the employer has been fully
27 indemnified or protected by court order.
28 In the event the employee or his personal representative
29 fails to institute a proceeding against such third person at
30 any time prior to 3 months before such action would be barred
31 at law the employer may in his own name, or in the name of
32 the employee or his personal representative, commence a
33 proceeding against such other person for the recovery of
34 damages on account of such disability or death to the
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1 employee, and out of any amount recovered the employer shall
2 pay over to the injured employee or his personal
3 representative all sums collected from such other person by
4 judgment or otherwise in excess of the amount of such
5 compensation paid or to be paid under this Act, including
6 amounts paid or to be paid pursuant to paragraph (a) of
7 Section 8 of the Workers' Compensation Act as required by
8 Section 7 of this Act, and costs, attorney's fees and
9 reasonable expenses as may be incurred by such employer in
10 making such collection or in enforcing such liability.
11 This amendatory Act of 1995 applies to causes of action
12 accruing on or after its effective date.
13 (Source: P.A. 89-7; eff. 3-9-95.)
14 Section 99. Effective date. This Act takes effect upon
15 becoming law.