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| Public Act 098-0633 | ||||
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AN ACT concerning employment.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Workers' Compensation Act is amended by | ||||
changing Section 5 as follows:
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(820 ILCS 305/5) (from Ch. 48, par. 138.5)
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(Text of Section WITHOUT the changes made by P.A. 89-7, | ||||
which has been held
unconstitutional)
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Sec. 5.
(a) No common law or statutory right to recover | ||||
damages from the
employer, his insurer, his broker, any service | ||||
organization that is wholly owned retained by the
employer, his | ||||
insurer or his broker and that provides to provide safety | ||||
service, advice or
recommendations for 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
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
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.
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However, in any action now pending or hereafter begun to | ||||
enforce a
common law or statutory right to recover damages for | ||||
negligently causing
the injury or death of any employee it is | ||||
not necessary to allege in the
complaint that either the | ||
employee or the employer or both were not
governed by the | ||
provisions of this Act or of any similar Act in force in
this | ||
or any other State.
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Any illegally employed minor or his legal representatives | ||
shall, except
as hereinafter provided, have the right within 6 | ||
months after the time of
injury or death, or within 6 months | ||
after the appointment of a legal representative,
whichever | ||
shall be later, to file with the Commission a rejection of his
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right to the benefits under this Act, in which case such | ||
illegally employed
minor or his legal representatives shall | ||
have the right to pursue his or
their common law or statutory | ||
remedies to recover damages for such injury or death.
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No payment of compensation under this Act shall be made to | ||
an illegally
employed minor, or his legal representatives, | ||
unless such payment and the
waiver of his right to reject the
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benefits of this Act has first
been approved by the Commission | ||
or any member thereof, and if such payment
and the waiver of | ||
his right of rejection
has been so approved such payment is a | ||
bar to a subsequent rejection of the
provisions of this Act.
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(b) Where the injury or death for which compensation is | ||
payable under
this Act was caused under circumstances creating | ||
a legal liability for
damages on the part of some person other | ||
than his employer to pay damages,
then legal proceedings may be | ||
taken against such other person to recover
damages | ||
notwithstanding such employer's payment of or liability to pay
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compensation under this Act. In such case, however, if the | ||
action against
such other person is brought by the injured | ||
employee or his personal
representative and judgment is | ||
obtained and paid, or settlement is made
with such other | ||
person, either with or without suit, then from the amount
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received by such employee or personal representative there | ||
shall be paid to
the employer the amount of compensation paid | ||
or to be paid by him to such
employee or personal | ||
representative including amounts paid or to be paid
pursuant to | ||
paragraph (a) of Section 8 of this Act.
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Out of any reimbursement received by the employer pursuant | ||
to this
Section the employer shall pay his pro rata share of | ||
all costs and
reasonably necessary expenses in connection with | ||
such third-party claim,
action or suit and where the services | ||
of an attorney at law of the employee
or dependents have | ||
resulted in or substantially contributed to the
procurement by | ||
suit, settlement or otherwise of the proceeds out of which
the | ||
employer is reimbursed, then, in the absence of other | ||
agreement, the
employer shall pay such attorney 25% of the | ||
gross amount of such
reimbursement.
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If the injured employee or his personal representative | ||
agrees to receive
compensation from the employer or accept from | ||
the employer any payment on
account of such compensation, or to | ||
institute proceedings to recover the
same, the employer may | ||
have or claim a lien upon any award, judgment or
fund out of | ||
which such employee might be compensated from such third party.
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In such actions brought by the employee or his personal | ||
representative,
he shall forthwith notify his employer by | ||
personal service or registered
mail, of such fact and of the | ||
name of the court in which the suit is
brought, filing proof | ||
thereof in the action. The employer may, at any time
thereafter | ||
join in the action upon his motion so that all orders of court
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after hearing and judgment shall be made for his protection. No | ||
release or
settlement of claim for damages by reason of such | ||
injury or death, and no
satisfaction of judgment in such | ||
proceedings shall be valid without the
written consent of both | ||
employer and employee or his personal
representative, except in | ||
the case of the employers, such consent is not
required where | ||
the employer has been fully indemnified or protected by
Court | ||
order.
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In the event the employee or his personal representative | ||
fails to
institute a proceeding against such third person at | ||
any time prior to 3
months before such action would be barred, | ||
the employer may in his own name
or in the name of the | ||
employee, or his personal representative, commence a
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proceeding against such other person for the recovery of | ||
damages on account
of such injury or death to the employee, and | ||
out of any amount recovered
the employer shall pay over to the | ||
injured employee or his personal
representatives all sums | ||
collected from such other person by judgment or
otherwise in | ||
excess of the amount of such compensation paid or to be paid
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under this Act, including amounts paid or to be paid pursuant | ||
to paragraph
(a) of Section 8 of this Act, and costs, | ||
attorney's fees and reasonable
expenses as may be incurred by | ||
such employer in making such collection or
in enforcing such | ||
liability.
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(Source: P.A. 79-79.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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