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Chicago Wrongful Death and Workers’ Compensation Claims
Losing a family member in a workplace accident is one of the most devastating events a family can face. When that loss happens on a Chicago job site, in a factory along the Calumet River, or on a highway like the I-290, the people left behind deserve answers and real financial protection. Two separate legal systems can apply in these situations: Illinois workers’ compensation and a wrongful death civil lawsuit. Understanding how both work, and how they interact, is essential for any family trying to protect their rights. Briskman Briskman & Greenberg is a Chicago personal injury lawyer firm that represents injured workers and grieving families across the Chicago area.
Table of Contents
- What the Illinois Wrongful Death Act Covers After a Fatal Workplace Accident
- How Illinois Workers’ Compensation Death Benefits Work for Surviving Families
- When a Wrongful Death Claim and a Workers’ Compensation Claim Can Both Apply
- Filing Deadlines That Chicago Families Cannot Afford to Miss
- What Damages Are Available and Who Receives Them
- Why Chicago Families Choose Briskman Briskman & Greenberg
- FAQs About Chicago Wrongful Death and Workers’ Compensation Claims
What the Illinois Wrongful Death Act Covers After a Fatal Workplace Accident
The Illinois Wrongful Death Act (740 ILCS 180) gives families the legal right to seek compensation when someone dies because of another party’s wrongful act, neglect, or default. The law is clear: if the deceased person could have filed a personal injury lawsuit had they survived, the family can now file a wrongful death claim.
Under Section 2 of the Illinois Wrongful Death Act (740 ILCS 180/2), the lawsuit must be brought by the personal representative of the deceased person’s estate. The compensation recovered goes to the surviving spouse and next of kin. A jury may award damages it finds to be fair and just compensation, including amounts for grief, sorrow, and mental suffering, along with pecuniary losses like lost income and financial support.
Punitive damages are also available in certain wrongful death cases under 740 ILCS 180/1, as amended by Public Act 103-514, effective August 11, 2023. These apply when the defendant’s conduct was especially reckless or egregious. Punitive damages are not available in healing art malpractice or legal malpractice cases, or against the State or units of local government.
Workplace wrongful death claims often involve third parties, not just employers. Think of a construction worker killed on a site near Wacker Drive because a subcontractor failed to secure scaffolding. The employer’s workers’ compensation carrier pays death benefits. But the subcontractor, a property owner, or an equipment manufacturer could also face a separate wrongful death lawsuit. These are not mutually exclusive claims. Families can pursue both paths at the same time, which is a critical distinction that many people miss in the early days of grief.
The Illinois Wrongful Death Act also works alongside the Illinois Survival Act (755 ILCS 5/27-6), which preserves the deceased worker’s own legal claims. A survival action allows the estate to recover damages the worker personally suffered before death, such as pain, suffering, and medical expenses. Together, these two statutes give families a fuller picture of what financial recovery is possible.
How Illinois Workers’ Compensation Death Benefits Work for Surviving Families
The Chicago workers’ compensation lawyer team at Briskman Briskman & Greenberg regularly handles death benefit claims under the Illinois Workers’ Compensation Act (820 ILCS 305). When a worker dies from a job-related injury or illness, the law provides structured financial benefits to eligible dependents, regardless of fault.
Under Section 7 of the Illinois Workers’ Compensation Act (820 ILCS 305/7), a surviving spouse is entitled to weekly payments equal to two-thirds of the deceased worker’s gross average weekly wage during the 52 weeks before the injury. These payments continue for the life of the surviving spouse, or until the youngest child reaches age 18, whichever is later. If a surviving child is enrolled full-time in an accredited school, payments continue until that child turns 25. Children who are physically or mentally incapacitated receive payments for the duration of that incapacity.
The term “child” under 820 ILCS 305/7 includes biological children, legally adopted children, posthumous children, children the worker was legally obligated to support, and children to whom the worker stood in loco parentis.
Recipients of death and permanent total disability benefits may also be entitled to cost-of-living adjustments through the Rate Adjustment Fund, and death benefits are paid for 25 years or $500,000, whichever is greater.
Illinois workers’ compensation also covers burial expenses. The system operates on a no-fault basis, meaning families do not need to prove the employer was negligent. The key question is simply whether the death arose out of and in the course of employment. Workers in industries ranging from steel mills on the South Side to construction sites in the West Loop all fall under this protection, as long as their employer carried the required coverage.
If an employer does not carry workers’ compensation insurance, the family can still file a claim with the Illinois Workers’ Compensation Commission. Under 820 ILCS 305, the Commission has authority to hear claims against uninsured employers, and the Injured Workers’ Benefit Fund may provide a source of recovery in those situations.
When a Wrongful Death Claim and a Workers’ Compensation Claim Can Both Apply
Many families in Chicago do not realize they can pursue both a workers’ compensation death benefit claim and a civil wrongful death lawsuit at the same time. The two systems serve different purposes, and the law does not force families to choose between them.
Workers’ compensation is the exclusive remedy against the employer in most cases. Section 5 of the Illinois Workers’ Compensation Act (820 ILCS 305/5) generally bars employees and their dependents from suing the employer directly in civil court. However, this exclusivity does not extend to third parties. If a worker dies because of a defective crane, a negligent trucking company on I-55, or a toxic chemical exposure caused by a product manufacturer, the family can file a wrongful death lawsuit against that third party while also collecting workers’ compensation death benefits from the employer’s insurer.
The Illinois Workers’ Occupational Diseases Act (820 ILCS 310) adds another layer. Under Section 1.1 of that Act, if a worker’s death results from an occupational disease and workers’ compensation recovery is barred by a repose period, the employee’s heirs retain a nonwaivable right to bring a civil action, including a wrongful death action. This provision protects families of workers who developed fatal illnesses like mesothelioma or occupational cancer after years of exposure.
Similarly, Section 1.2 of the Illinois Workers’ Compensation Act (820 ILCS 305/1.2) provides the same protection for injuries barred by a repose provision. These statutes reflect a legislative intent to ensure that no family is completely shut out of the courts simply because of timing.
One important practical issue: when a family receives both workers’ compensation death benefits and a third-party wrongful death recovery, the workers’ compensation insurer typically has a lien on the third-party settlement. Handling that lien correctly requires careful legal work. Getting it wrong can reduce the family’s net recovery significantly.
Filing Deadlines That Chicago Families Cannot Afford to Miss
Time limits apply to both types of claims, and missing either deadline can permanently end a family’s right to recover. Under the Illinois Wrongful Death Act (740 ILCS 180), a wrongful death lawsuit must generally be filed within two years of the date of death. This is separate from the personal injury statute of limitations. Even if the deceased person could have filed a personal injury claim with a different deadline, the wrongful death claim has its own two-year clock that begins running on the date of death, not the date of the negligent act.
In certain wrongful death cases, particularly those involving medical malpractice or toxic exposure, the cause of death may not be immediately apparent. Illinois recognizes a “discovery rule” that may delay the start of the limitations period until the date the family knew or should have known that the death was caused by a wrongful act.
Workers’ compensation death benefit claims have their own deadlines under 820 ILCS 305. Notice of the accident must be given to the employer as soon as practicable, but no later than 45 days after the accident under 820 ILCS 305/6(c). An application for adjustment of claim must generally be filed with the Illinois Workers’ Compensation Commission within three years of the date of the accident, or within two years of the last payment of compensation, whichever is later.
For families dealing with occupational diseases under 820 ILCS 310, the deadlines can be more complex. The disease may have developed over years of working in environments like chemical plants near the Calumet industrial corridor or facilities with asbestos insulation. The clock on these claims can run from the date of disablement or the date the worker knew or should have known the disease was work-related.
Do not wait to speak with an attorney. Evidence disappears, witnesses move, and records become harder to obtain. If your family lost a loved one in a Chicago workplace accident, call Briskman Briskman & Greenberg at (312) 222-0010 as soon as possible to protect your rights under both systems.
What Damages Are Available and Who Receives Them
The financial recovery available through a wrongful death claim is broader than what workers’ compensation alone provides. Workers’ compensation pays a percentage of the worker’s wage, covers burial expenses, and provides structured weekly payments. A wrongful death civil lawsuit can recover the full measure of the family’s losses.
Under the Illinois Wrongful Death Act (740 ILCS 180/2), a jury may award damages for pecuniary injuries, grief, sorrow, and mental suffering to the surviving spouse and next of kin. Pecuniary losses include the income the worker would have earned over a lifetime, the value of household services, and the financial support the family depended on. Non-economic damages include the loss of companionship, guidance, and emotional support that no paycheck can replace.
Consider a family on Chicago’s Northwest Side whose breadwinner worked in manufacturing. Workers’ compensation pays two-thirds of that worker’s average weekly wage for up to 25 years or $500,000, whichever is greater. A wrongful death lawsuit against a negligent equipment manufacturer could recover the full value of the worker’s projected lifetime earnings, the family’s grief and suffering, and potentially punitive damages if the manufacturer’s conduct was reckless.
Under Section 8(h) of the Illinois Workers’ Compensation Act (820 ILCS 305/8(h)), if a worker dies before all compensation has been paid, any remaining compensation passes to surviving dependents. This provision protects families where a worker was already receiving benefits for a serious injury and then died before the claim was fully resolved.
Who actually receives the money depends on the type of claim. Workers’ compensation death benefits flow to eligible dependents as defined by 820 ILCS 305/7. Wrongful death damages go to the surviving spouse and next of kin, distributed through the personal representative of the estate. A workers’ compensation lawyer who also handles wrongful death claims can coordinate both recovery streams so the family receives everything the law allows, without the two claims working against each other.
Why Chicago Families Choose Briskman Briskman & Greenberg
Briskman Briskman & Greenberg has represented injured workers and their families in Chicago and the surrounding communities for decades. The firm handles cases across Cook County, including claims that originate near O’Hare International Airport, along the lakefront, in Pilsen, and in industrial neighborhoods on the city’s South and West Sides.
When a family calls after a workplace fatality, the attorneys at Briskman Briskman & Greenberg examine every avenue of recovery. That means filing the workers’ compensation death benefit claim with the Illinois Workers’ Compensation Commission, investigating whether a third party caused or contributed to the death, and evaluating whether a wrongful death lawsuit under 740 ILCS 180 is warranted. The firm also looks at whether the Illinois Workers’ Occupational Diseases Act (820 ILCS 310) opens additional doors for families dealing with occupational illness deaths.
Families in Berwyn, Cicero, and throughout the Chicago metropolitan area can access a workers’ compensation lawyer at the firm who understands both the workers’ compensation system and civil litigation. That dual knowledge matters enormously in cases where both types of claims are in play at the same time.
The firm also serves clients in communities like Cicero, where industrial work is common and workplace fatalities do occur. A workers’ compensation lawyer from Briskman Briskman & Greenberg can meet with families to explain their rights under both the Illinois Workers’ Compensation Act and the Illinois Wrongful Death Act, without pressure and without obligation.
Losing someone you love is hard enough. You should not have to figure out the Illinois Workers’ Compensation Commission’s procedures, lien law, or the Cook County Circuit Court’s probate requirements on your own. Contact Briskman Briskman & Greenberg at (312) 222-0010. The firm is ready to help your family pursue every dollar the law allows.
FAQs About Chicago Wrongful Death and Workers’ Compensation Claims
Can a family file both a workers’ compensation death benefit claim and a wrongful death lawsuit in Illinois?
Yes. Workers’ compensation and a wrongful death lawsuit are separate legal actions that can run at the same time. Workers’ compensation is the exclusive remedy against the employer under the Illinois Workers’ Compensation Act (820 ILCS 305), but if a third party, such as an equipment manufacturer, a subcontractor, or a property owner, contributed to the worker’s death, the family can file a civil wrongful death lawsuit against that third party under the Illinois Wrongful Death Act (740 ILCS 180). Recovering both requires careful coordination because the workers’ compensation insurer typically holds a lien against any third-party settlement.
Who qualifies to receive workers’ compensation death benefits in Illinois?
Under Section 7 of the Illinois Workers’ Compensation Act (820 ILCS 305/7), eligible recipients include a surviving spouse, children under age 18, full-time students under age 25, children of any age who are physically or mentally incapacitated, and other dependents who relied on the worker for at least 50% of their financial support. Weekly payments equal two-thirds of the deceased worker’s gross average weekly wage, subject to minimum and maximum limits set by the Illinois Workers’ Compensation Commission. Benefits continue for 25 years or until $500,000 is paid, whichever is greater.
How long does a family have to file a wrongful death lawsuit in Illinois?
Under the Illinois Wrongful Death Act (740 ILCS 180/2), a wrongful death lawsuit must generally be filed within two years of the date of death. The clock starts on the date of death, not the date of the accident or injury. Some exceptions exist, including a discovery rule for cases where the cause of death was not immediately apparent, such as occupational disease deaths. Cases involving violent intentional conduct may have a five-year filing window. Missing the deadline almost always results in the court dismissing the case, so contact an attorney as soon as possible after a loved one’s death.
Can a family sue the employer directly if a worker dies on the job in Illinois?
In most situations, the Illinois Workers’ Compensation Act (820 ILCS 305/5) makes workers’ compensation the exclusive remedy against the employer. This means the family generally cannot file a civil lawsuit directly against the employer. However, there are exceptions. If the employer does not carry required workers’ compensation insurance, the family has additional legal options. Under Section 1.2 of the Illinois Workers’ Compensation Act (820 ILCS 305/1.2), if workers’ compensation recovery is barred by a repose provision, the family retains a nonwaivable right to bring a civil action, including a wrongful death lawsuit, against the employer.
What damages can a family recover through a wrongful death lawsuit that workers’ compensation does not provide?
Workers’ compensation death benefits cover a portion of the worker’s lost wages and burial expenses. A wrongful death lawsuit under the Illinois Wrongful Death Act (740 ILCS 180/2) can recover the full value of the worker’s projected lifetime earnings, compensation for the family’s grief, sorrow, and mental suffering, and the loss of companionship and guidance. In cases involving reckless or egregious conduct, punitive damages may also be available. These damages are not available through workers’ compensation, which is why pursuing both claims simultaneously, when possible, gives families the most complete financial recovery.
This page is attorney advertising. Briskman Briskman & Greenberg is responsible for this content. The firm’s office is located at 134 N. LaSalle Street, Suite 1515, Chicago, IL 60602. Past results do not guarantee similar outcomes in future cases. Viewing this page does not create an attorney-client relationship. Each case is unique and must be evaluated on its own facts.
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