The opinion of the court was delivered by: Justice Heiple
Plaintiff brought a declaratory judgment action in Franklin County circuit court seeking a declaration that section 9 of the Workers' Occupational Diseases Act (820 ILCS 310/9 (West 1998)) does not bar her claim for death benefits under the Act, or if it does, that section 9 is unconstitutional. The circuit court granted defendant Old Ben Coal Company's motion for summary judgment. Plaintiff appealed, and the appellate court reversed, holding section 9 does not bar plaintiff's claim for death benefits under the Act. 304 Ill. App. 3d 1060. We granted Old Ben's petition for leave to appeal and now reverse the appellate court and affirm the circuit court's order granting Old Ben's motion for summary judgment.
Elmer Segers was employed by Old Ben Coal Company as a coal miner. Elmer retired in 1979. In 1984, Elmer filed a disability claim in the Industrial Commission against Old Ben alleging injuries associated with the inhalation of coal and rock dust. Elmer and Old Ben agreed to settle Elmer's claim. The settlement agreement provided that Old Ben would pay Elmer $25,664 "in a lump sum" for
"full and final settlement of any and all claims under the Workers' Compensation Act and the Occupational Diseases Act, for any alleged accident, exposure or occupational disease arising out of Petitioner's coal mine employment with Respondent, including any and all lung conditions or injuries, and any related conditions or injuries incurred, known or unknown, alleged to have been caused by the conditions and hazards of the Petitioner's employment, and more specifically caused by Petitioner's exposure to coal dust throughout his entire tenure as a coal miner."
The settlement agreement further states that it
"resolves issues which exist as to the existence of any occupational disease, the extent of the Petitioner's injuries and conditions, including questions of temporary total disability and permanent disability, and whether such injuries and conditions are compensable. A further issue exists as to whether the Petitioner may require or be entitled to medical, surgical, and hospital services under Section 8(a) of the Workers' Compensation Act or Section 7 of the Occupational Diseases Act. The Petitioner hereby waives any such rights to future services under these sections and understands that this settlement includes any liability on behalf of Respondent for past medical expenses."
Elmer died on June 4, 1995. On July 25, 1995, Elmer's widow, Eva, filed a claim with the Industrial Commission for death benefits under the Workers' Occupational Diseases Act. Old Ben filed a motion to dismiss, arguing that pursuant to section 9 of the Act, Elmer's lump sum settlement with Old Ben barred Eva from seeking death benefits under the Act. Before the Commission could rule on Old Ben's motion to dismiss, Eva filed a declaratory judgment action in Franklin County circuit court asking the court to find that section 9 of the Act does not bar her claim for death benefits, or, in the alternative, if section 9 does bar her claim for death benefits, that section 9 is unconstitutional.
The circuit court granted Old Ben's motion for summary judgment, holding section 9 bars Eva's death benefits claim and that section 9 is constitutional. Eva appealed, and the appellate court reversed, holding section 9 does not bar her claim for death benefits under the Act. This court granted Old Ben's petition for leave to appeal. On appeal to this court, the State defendants in the declaratory judgment action, the Industrial Commission and the Treasurer and ex-officio Custodian of the Rate Adjustment Fund, have limited their arguments to whether section 9 is constitutional.
Old Ben first argues that the circuit court lacked jurisdiction to hear plaintiff's declaratory judgment action. Old Ben argues that by filing her declaratory judgment action in circuit court, plaintiff improperly bypassed the Industrial Commission, which should have made the initial ruling regarding whether section 9 of the Act bars plaintiff's death benefits claim. Old Ben, however, emphasizes that it "is not asking the Supreme Court to remand this case back to the Circuit Court with instructions to let the claim proceed through arbitration and the Industrial Commission before reaching the Circuit Court again. This would only cause delay." Old Ben argues that this court should address the jurisdiction question, but only with respect to future cases.
Old Ben has waived its jurisdiction argument. It is axiomatic that the parties cannot waive an issue of subject matter jurisdiction. Currie v. Lao, 148 Ill. 2d 151, 157 (1992). The issue in this case, however, is one of primary jurisdiction, not subject matter jurisdiction, because Old Ben concedes, as it must, that the circuit court has concurrent jurisdiction to hear plaintiff's declaratory judgment action. See Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284, 287 (1994) (stating Illinois circuit courts have original jurisdiction over all justiciable matters). Rather, Old Ben argues that plaintiff's claim for death benefits must proceed first before the Industrial Commission.
The doctrine of primary jurisdiction provides that where "a court has jurisdiction over a matter, it should in some instances stay the judicial proceedings pending referral of a controversy, or some portion of it, to an administrative agency having expertise in the area." Skilling, 163 Ill. 2d at 288. Since primary jurisdiction only applies where a court has either original or concurrent jurisdiction (Skilling, 163 Ill. 2d at 288), primary jurisdiction involves a question of timing, not of judicial competence to hear a particular case (Kendra Oil & Gas, Inc. v. Homco, Ltd., 879 F.2d 240, 242 (7th Cir. 1989); Gross Common Carrier, Inc. v. Baxter Healthcare Corp., 51 F.3d 703, 706 (7th Cir. 1995); see also Peoples Energy Corp. v. Illinois Commerce Comm'n, 142 Ill. App. 3d 917 (1986) (noting doctrine of primary jurisdiction is not technically a question of jurisdiction at all but rather a question ...