The Illinois Supreme Court has somewhat clarified an injured employee’s rights to pursue a third-party case by intervening into a third-party subrogation suit filed by the workers’ compensation carrier, even after the personal injury statute of limitations runs.

Gary L. Wickert

In A&R Janitorial v. Pepper Construction Co., an employee filed a third-party action after the Illinois personal injury SOL had run, and when that suit was dismissed, he tried to intervene into a third-party subrogation suit filed by his employer before the SOL had run.

The Supreme Court did not allow the intervention, indicating that the dismissal of the employee’s first third-party personal injury suit constituted res judicata as to her rights.

However, the court specifically did not rule on whether the employee would otherwise have a right to intervene in the employer’s subrogation action if res judicata were inapplicable or whether her petition for intervention was timely.

This leaves open the possibility that an employee can intervene into a carrier’s third-party suit, provided the carrier has pleaded for pain and suffering and other non-economic damages beyond the economic damages represented by the workers’ compensation lien.

Assuming the employee could have intervened into the carrier’s subrogation suit (even after the SOL had run) if she hadn’t brought her third-party suit late and gotten dismissed, this case would have allowed a subrogated workers’ compensation carrier to partner with unrepresented employees and get their cooperation in third-party suits we file on behalf of subrogated carriers.

The employee and the carrier can then enter into some sort of joint prosecution agreement that allows the case to move forward with the employee’s cooperation and agreed-upon participation in any third-party recovery.

Gary Wickert is a partner with the Matthiesen, Wickert & Lehrer law firm in Hartford, Wisconsin. This blog post is reprinted with permission.