Illinois Compiled Statutes
820 ILCS 305/5 (2026)
Damages; minors; third-party liability
✓ current as of May 2026
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(820 ILCS 305/5)
(from Ch. 48, par. 138.5)
Sec. 5. Damages; minors; third-party liability. (a) Except as provided in Section 1.2, no common law or statutory right to recover damages from the
employer, his insurer, his broker, any service organization that is wholly owned by the
employer, his insurer or his broker and that provides 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.
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.
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
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.
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
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.
(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
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
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.
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.
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.
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
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.
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
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
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.
(Source: P.A. 101-6, eff. 5-17-19.)
Notes of Decisions
Cited in 406
cases (45 in the last 5 years), 1993–2026 · leading case: Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007).
Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007). “After plaintiffs settled their lawsuit against defendants, Rail Terminal sought to enforce its workers' compensation lien against the settlement proceeds allocated to Gallagher (820 ILCS 305/5(b) (West 2004)). The circuit court of Cook County found that Rail Terminal had waived…”
Ioerger v. Halverson Const. Co., Inc., 902 N.E.2d 645 (Ill. 2008). “OPINION Justice KARMEIER delivered the judgment of the court, with opinion: The issue in this case is whether the immunity afforded to an employer by the exclusive remedy provisions of the Workers' Compensation Act (the Act) (820 ILCS 305/5(a), 11 (West 2000)) extends to the…”
LaFever v. Kemlite Co., 706 N.E.2d 441 (Ill. 1998). “Banner filed a timely post-judgment motion seeking, among other things, leave to waive its lien of $222,267.”
Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (Ill. 2007). “Defendant is Clark Refining's parent company and sole shareholder. On March 13, 1995, decedents were on their lunch break when a fire broke out at the refinery, killing them both.”
Ramsey v. Morrison, 676 N.E.2d 1304 (Ill. 1997). “We are asked to determine: (1) whether a third party sued by an injured employee may recover contribution from a coemployee who is immune from a direct suit by the employee under section 5(a) of the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992)), and (2) how an…”
McNamee v. Federated Equip. & Supply Co., Inc., 692 N.E.2d 1157 (Ill. 1998). “" 820 ILCS 305/5(a) (West 1996). Section 11 of the Act further provides in pertinent part: "The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer * * * for accidental injuries sustained by any…”
Townsend v. Fassbinder, 866 N.E.2d 631 (Ill. App. Ct. 2007). “United claimed that Steve was its immediate employee, not an employee of Rainbow, that he was barred from suing United because of the exclusive remedy provision of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2000)) for receiving workers' compensation benefits,…”
Taylor v. Pekin Ins., 899 N.E.2d 251 (Ill. 2008). “OPINION This case involves the application of section 5(b) of the Workers’ Compensation Act (820 ILCS 305/5(b) (West 2006)), which grants an employer a lien on an employee’s recovery against a third-party tortfeasor, up to the amount of the workers’ compensation benefits paid to…”
Schrock v. Shoemaker, 640 N.E.2d 937 (Ill. 1994). “The employer's motion sought to establish a workers' compensation lien upon any judgment or settlement that the plaintiff obtained in her structural work action against the defendant.”
Unzicker v. Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002). “In Doyle , this court explained that the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2000)) is in the nature of an affirmative defense that is waived if not asserted.”
Eastman v. Messner, 721 N.E.2d 1154 (Ill. 1999). “JUSTICE McMORROW delivered the opinion of the court: The question presented in this appeal is whether, pursuant to section 5(b) of the Workers’ Compensation Act (820 ILCS 305/5(b) (West 1996)), an employer who has paid workers’ compensation benefits to an employee may assert a…”
Munoz v. Bulley & Andrews, LLC, 2022 IL 127067 (Ill. 2022). “OPINION ¶1 In this appeal, we address whether the exclusive remedy provisions under sections 5(a) and 11 of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a), 11 (West 2016)) extend to a general contractor who paid workers’ compensation insurance premiums and benefits for a…”
— 820 ILCS 305/5(a) — 225 cases
Ioerger v. Halverson Const. Co., Inc., 902 N.E.2d 645 (Ill. 2008). “OPINION Justice KARMEIER delivered the judgment of the court, with opinion: The issue in this case is whether the immunity afforded to an employer by the exclusive remedy provisions of the Workers' Compensation Act (the Act) (820 ILCS 305/5(a), 11 (West 2000)) extends to the…”
Townsend v. Fassbinder, 866 N.E.2d 631 (Ill. App. Ct. 2007). “United claimed that Steve was its immediate employee, not an employee of Rainbow, that he was barred from suing United because of the exclusive remedy provision of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2000)) for receiving workers' compensation benefits,…”
Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (Ill. 2007). “Defendant is Clark Refining's parent company and sole shareholder. On March 13, 1995, decedents were on their lunch break when a fire broke out at the refinery, killing them both.”
Unzicker v. Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002). “In Doyle , this court explained that the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2000)) is in the nature of an affirmative defense that is waived if not asserted.”
McNamee v. Federated Equip. & Supply Co., Inc., 692 N.E.2d 1157 (Ill. 1998). “" 820 ILCS 305/5(a) (West 1996). Section 11 of the Act further provides in pertinent part: "The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer * * * for accidental injuries sustained by any…”
— 820 ILCS 305/5(a)(2002) — 2 cases
Forsythe v. Clark USA, Inc., 836 N.E.2d 850 (Ill. App. Ct. 2005).
Forsythe v. Clark USA, Inc. (Ill. App. Ct. 2005).
— 820 ILCS 305/5(b) — 166 cases
Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007). “After plaintiffs settled their lawsuit against defendants, Rail Terminal sought to enforce its workers' compensation lien against the settlement proceeds allocated to Gallagher (820 ILCS 305/5(b) (West 2004)). The circuit court of Cook County found that Rail Terminal had waived…”
LaFever v. Kemlite Co., 706 N.E.2d 441 (Ill. 1998). “Banner filed a timely post-judgment motion seeking, among other things, leave to waive its lien of $222,267.”
Taylor v. Pekin Ins., 899 N.E.2d 251 (Ill. 2008). “OPINION This case involves the application of section 5(b) of the Workers’ Compensation Act (820 ILCS 305/5(b) (West 2006)), which grants an employer a lien on an employee’s recovery against a third-party tortfeasor, up to the amount of the workers’ compensation benefits paid to…”
Schrock v. Shoemaker, 640 N.E.2d 937 (Ill. 1994). “The employer's motion sought to establish a workers' compensation lien upon any judgment or settlement that the plaintiff obtained in her structural work action against the defendant.”
Eastman v. Messner, 721 N.E.2d 1154 (Ill. 1999). “JUSTICE McMORROW delivered the opinion of the court: The question presented in this appeal is whether, pursuant to section 5(b) of the Workers’ Compensation Act (820 ILCS 305/5(b) (West 1996)), an employer who has paid workers’ compensation benefits to an employee may assert a…”
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