Never a dull moment. Recently, in the case of Marquita McDonald v. Symphony Bronzeville, LLC et. al., the Illinois Appellate Court was called upon to determine whether the exclusivity provisions of the Illinois Workers’ Compensation Act bar a claim for statutory damages under the Illinois Biometric Information Privacy Act where an employer is alleged to have violated an employee’s statutory privacy rights. How did such a question come about in the first place?

WHAT HAPPENED?

In August of 2017, Marquita McDonald filed a class action lawsuit against defendant Symphony Bronzeville Park, LLC and Symphony Healthcare, LLC. McDonald alleged that as an employee, she was required to provide biometric information by scanning her fingerprint for the purpose of utilizing a fingerprint-based time clock system implemented by the defendants, as were other members of a proposed class of defendants’ employees. In each count of the complaint filed by McDonald, she alleged that as a result of defendant’s wrongful conduct, she had suffered and continued to suffer “mental anguish and mental injury” in that she “experiences mental anguish when thinking about what would happen to her biometric identifiers or information if Defendants’ went bankrupt, whether Defendant will ever delete her biometric identifiers or information, and whether Defendants shared her biometric identifiers or information.” The complaint also sought damages for the injuries resulting from Defendants’ negligence in an amount to be determined at trial.

THE MOTION TO DISMISS

Defendants filed motions to dismiss the class action complaint. Among the arguments raised by defendants was an assertion that any claims made by McDonald on her own behalf or on behalf of any of defendants’ other employees would be barred by the exclusivity provisions of the Workers’ Compensation Act. In response, McDonald was granted leave to amend the complaint. In the amended complaint, they removed any allegation that McDonald suffered mental anguish as a result of the alleged Privacy Act violations. The amended complaint also specifically sought recovery of liquidated damages under the Privacy Act, and did not allege actual damages.

THE CIRCUIT COURT

The circuit court denied the motion to dismiss and rejected Defendants assertions that the Workers’ Compensation Act preempted any claims by an employee against an employer under the Privacy Act. In a written order dated October 29, 2019, the circuit court certified the following question for interlocutory appeal:

“Do the exclusivity provisions of the Workers’ Compensation Act bar a claim for statutory damages under the Privacy Act where an employer is alleged to have violated an employee’s statutory privacy rights under the Privacy Act?”

THE APPELLATE COURT’S ANSWER TO THE CERTIFIED QUESTION

The Appellate Court concluded that the exclusivity provisions of the Workers’ Compensation Act do not bar a claim for statutory (liquidated) damages,  where an employer is alleged to have violated an employee’s statutory privacy rights under the Privacy Act, as such a claim is simply not compensable under the Workers’ Compensation Act. This is in keeping with the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., where the Supreme Court held that a violation of the Privacy Act, in itself, is sufficient to support an individual’s statutory cause of action. This means that there is no need to plead that the Plaintiff suffered “mental anguish and mental injury” in order to support a cause of action.

The Appellate Court made clear that in the case of McDonald, they were addressing solely the question of statutory damages and not actual damages.

THE WORKERS’ COMPENSATION ACT AS AN EXCLUSIVE REMEDY

The Workers’ Compensation Act specifically states that “no common law or statutory right to recover damages from the employer 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.” 820 ILCS 305/ 5(a).

The Illinois Supreme Court has ruled that the Illinois Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury.

An employee can escape the exclusivity provisions of the Illinois Workers’ Compensation Act if the employee establishes:

  1. The injury was not accidental;
  2. The injury did not arise from the employment;
  3. The injury was not received during the course of employment; or
  4. The injury was not compensable under the Illinois Workers’ Compensation Act.

In this case, the appellate court looked to the fourth exception to resolve the certified question, and relied on four cases to solve the riddle:

  1. Folta v. Ferro Engineering, 2015 IL 118070, ¶4
  2. Pathfinder, Co. v. Industrial Commission, 62 Ill.2d 556 (1976)
  3. Collier v. Wagner Castings, Co., 82 Ill.2d 229 (1980)
  4. Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990)

FOLTA V. FERRO ENGINEERING

The Plaintiff, James Folta, worked as a shipping clerk and product tester for Ferro Engineering from 1966 to 1970. Folta was exposed to asbestos in the course and scope of that employment. He was not diagnosed with mesothelioma until May of 2011. He brought a civil action against 15 defendants, including his employer, Ferro Engineering. During the course of litigation, Folta died and and his widow Ellen Folta was substituted individually and as a Special Administrator for the Estate. Ferro Engineering filed a motion to dismiss the complaint arguing that Folta’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act. Folta argued in response that his cause of action fell outside the exclusive remedy provisions because his claims were not compensable under the Acts. He also argued that since the symptoms of his injury did not manifest until more than 40 years after his last exposure to asbestos, and any potential asbestos claim was barred by the 25 year limitation periods in the Acts, his cause of action in circuit court was not barred.

The circuit court granted Ferro’s motion to dismiss. The appellate court reversed and remanded, reasoning that an injured employee may bring a common-law action against his employer where the injury is not compensable under the Act. The Supreme Court held that the General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from asbestos exposure must be brought, and that Folta’s right to seek recovery under the Acts was  extinguished. The Supreme Court ruled that this did not allow Folta to bring a wrongful death action in circuit court against his employer, as the employer’s liability was governed exclusively by the provisions in the Workers’ Compensation Act and the Workers’ Occupational Diseases Act.

***NOTE*** 

On May 17, 2019, Governor J.B. Pritzker signed Senate Bill 1596 into law as Public Act 101-0006. This amended both the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Disease Act. Now, any worker that is injured or killed by an exposure that was limited to the 25-year statute of limitations can bring a civil action at law, including an action for wrongful death against the employer.  

 The Illinois Workers’ Compensation Act was amended by adding Section 1.2: 

 Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the non-waivable right to bring such an action against any employer or employers. 

 The Workers’ Occupational Disease Act was amended by adding Section 1.1: 

 Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such occupational disease, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers. 

***

 PATHFINDER V. INDUSTRIAL COMMISSION

In Pathfinder, the Supreme Court found that an employee who suffered a sudden, severe, emotional shock after witnessing the injury of a co-employee suffered an accident within the meaning of the Act, even though the employee sustained no physical trauma or injury.

COLLIER V. WAGNER CASTINGS, CO.

In Collier, the Supreme Court relied on the decision in Pathfinder to find that emotional distress was compensable under the Workers’ Compensation Act and that a claim for emotional damages and therefore a claim for emotional damages could not escape the bar of the exclusivity provisions.

MEERBREY V. MARSHALL FIELD & CO.

In Meerbrey, the court considered whether emotional distress suffered as a consequence of false imprisonment, false arrest, or malicious prosecution was compensable under the Workers’ Compensation Act:

While our courts have not yet considered whether emotional distress which an employee allegedly suffers as a consequence of false imprisonment, false arrest, or malicious prosecution is compensable under the Act, our decisions have held that the Act covers injurers similar to those alleged here. In Pathfinder Co. v. Industrial Commission, our court held that an employee who suffered a sudden, severe emotional shock after witnessing the injury of a co-employee could recover under the Act, even though no physical trauma or injury was sustained. Similarly, in Collier v. Wagner Castings Co, our court held that emotional distress, including emotional distress intentionally inflicted by a co-employee is compensable under the Act. The plaintiff offers no principled basis for distinguishing between the emotional injuries which he allegedly suffered in the course of his employment and those deemed compensable in Pathfinder and Collier. 

Unfortunately, in Meerbrey, the Plaintiff waived his argument that that the exclusivity provisions of the Act did not bar his common law action against Marshall Field. This argument was never raised in the trial court, and Plaintiff failed to cite to any authority for his claim that the injuries he suffered were not compensable under the Workers’ Compensation Act. The Supreme Court affirmed the dismissal of Marshall Field based on the exclusivity provisions of the Workers’ Compensation Act.

THE ANSWER

As stated at the beginning of this post, the Appellate Court found that the exclusivity provisions of the Illinois Workers’ Compensation Act do not bar a claim for STATUTORY, LIQUIDATED DAMAGES under the Privacy Act. However, it is important to remember that the court did not discuss whether the exclusivity provisions of the Act barred a claim for ACTUAL DAMAGES that are also available under the Privacy Act, but were not sought by the Plaintiff in this case.

THE TAKEAWAY

Be careful when filing suit for any damages resulting from any incident or injury that occurs in the course and scope of an injured party’s employment. When you plead damages, make sure that you differentiate between statutory, liquidated damages and actual damages. If you intend to plead actual damages, it would behoove you to ensure that a claim is also filed with the Illinois Workers’ Compensation Commission in order to protect the rights of the injured party should the court decide that a claim for actual damages is barred by the exclusivity provisions of the Workers’ Compensation Act or the Workers’ Occupational Diseases’ Act.

If you have filed or are contemplating filing a civil case under the Illinois Biometric Privacy Act asking for actual damages related to an injury that might be available only via the Workers’ Compensation Act, feel free to contact me. I can make sure that an Application for Adjustment of Claim is filed at the Commission to protect your client’s rights if (or when) things go sideways on the civil side as to whether your client’s claim for actual damages is barred by the exclusivity provisions of the Illinois Workers’ Compensation Act. Remember that the statute of limitations clock is always ticking, so the sooner you reach out the better. I am available 7 days a week for a free consultation.