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Exclusive Remedy – Employee May Seek Inconsistent Alternative Claims

By John F. Kamin

In Philpott v. City of Charleston, 12 IWCC 0260, a firefighter suffered severe injuries while loading construction materials at a training facility on his day off. The firefighter had borrowed a trailer and he and his supervisor attempted to pick up the rails using a backhoe. In the process of unloading the rails, the firefighter was struck by the bucket of the backhoe and suffered a severe spinal cord injury resulting in paralysis. He applied for a “not on duty” pension. In addition, he filed a civil action against his employer for the consequences of his injury and completed an affidavit indicating he was “off duty and volunteering” at the time of the occurrence. The employer asserted an affirmative defense that workers’ compensation was the firefighter’s exclusive remedy. The civil case was eventually dismissed. However, the dismissal was not based upon a finding that the firefighter was acting as an employee of the City at the time of the occurrence, but based upon certain tort immunity defenses. Thereafter, the firefighter pursued a claim for workers’ compensation benefits. The City asserted that the firefighter was barred from receiving workers’ compensation benefits as he had applied for and received “not on duty” pension benefits and had also filed and pursued a civil action in which he had asserted that he was off duty and volunteering at the time of the occurrence.

The Arbitrator and Commission rejected both of those defenses. First, the Commission noted that the employer was not a party to the disability pension hearing and noted the issues as to whether someone is entitled to a “not on duty” disability pension are not identical to the determination of whether the firefighter was in the course of his employment at the time of the injury. As a result, the firefighter was not collaterally estopped to pursue workers’ compensation even though he received a disability pension characterized as “not on duty.” Second, the Commission found that the civil action filed by plaintiff did not bar his eligibility for workers’ compensation benefits. The court relied heavily upon the fact the employer had raised an affirmative defense that the worker’s exclusive remedy was the Workers’ Compensation Act. The City had noted petitioner held himself out as a volunteer at the time in the civil action. However, based upon evidence that the firefighter was paid overtime for the work, was working with a supervisor and using a city owned backhoe, the Commission concluded the accident arose out of and in the course of his employment.

Apparently, the Commission in this case concluded that an employee may pursue alternative claims without one adversely effecting another. However, the employer is not able to assert inconsistent defenses.

Notably, if the firefighter had filed a claim for workers’ compensation benefits and had received benefits and settled his claim, that settlement would have barred a direct civil action against the employer. However, Illinois courts have also held that the voluntary payment of workers’ compensation benefits to an injured worker does not necessarily insulate an employer from a direct action even if the employee accepts the benefits. In practice, an employer must make a determination as to whether or not an injury will be considered compensable under the Workers’ Compensation Act and then be consistent in its position in defending both the civil claim and workers’ compensation claim.

Originally published in the Fall 2012 edition of Quinn Quarterly.

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