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Illinois Employers Face Dramatic Changes To The Workers’ Compensation Act Related To Claims For Latent Injuries

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Authored by Todd M. Rowe, Partner at Tressler LLP

For many years, Illinois employers have relied on the fact that the Illinois Workers’ Compensation Act (“Workers’ Comp Act”) and Workers’ Occupational Diseases Act (“Diseases Act”) provides the “exclusive remedy” for workers to recover for workplace injuries.  Further, employers have been able to rely on a 25-year statute of repose that limits the time for a worker to bring a claim.  Illinois employers should begin bracing for changes in the Workers’ Comp Act and the Diseases Act. 

Recently, the Illinois legislature has taken steps to lift longstanding limitations to key provisions in the Workers’ Comp Act and the Diseases Act. Specifically, once it is passed, Senate Bill 1596 would lift all time bars for employees claiming to suffer from latent illnesses caused by exposure to toxic substances (including asbestos, radiation, beryllium or similar substances) to file suit against their employers.

The current draft of SB 1596 sitting on Governor J.B. Pritzker’s desk carves out exceptions to the Workers’ Comp Act for cases of exposure to toxic substances with the following provision:

Sec. 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 nonwaivable right to bring such an action against any employer or employers.

If Governor Pritzker signs the SB 1596 (which he is expected to do) it will take effect immediately.

Once enacted this provision will overturn well-settled law last addressed by the Illinois Supreme Court in Folta v. Ferro Engineering, 43 N.E.3d 108, 2015 IL 118070 (Nov. 4, 2015).  In Folta, the Supreme Court considered whether an employee can bring an action against an employer outside of the Worker’s Comp Act and the Diseases Act, when the employee’s injury or disease first manifests after the expiration of the time limits provided under these acts. Ultimately, the Supreme Court held hold the employee’s action was barred by the exclusive remedy provisions of the acts.

State Senator Elgie R. Sims, Jr. (D-Chicago) originally sponsored the bill with the stated intention to protect workers by expanding the timeframe within which workers can bring a lawsuit against their employers.  State Senator Sims provided the following in support of SB 1596: “The law as it stands is inhumane and often a death sentence for people diagnosed with serious illnesses who aren’t given the proper time to take care of their poor health.” 

On the other hand, both employers and employees have been able to rely on the fact that the Workers’ Comp Act and the Diseases Act precluded the cost and uncertainty of employees filing lawsuits outside this statutory framework.  In light of these developments, Illinois employers should consider the following if this major shift in the law takes place:

  • SB 1596 may directly impact the defense of workers’ compensation claims.  Claims for damages based on latent injuries are difficult to defend when the symptoms and damages are not apparent until years or decades after exposure.  Further, during these years of exposure or incubation, the employee could be exposed to other toxins that are completely unrelated to their work.  There are also questions as to whether SB 1596 would revive claims that have already been time-barred. 
  • SB 1596 may directly impact the insurance coverage needed by employers.  Opening up the Workers’ Comp Act and the Diseases Act may present a number of new claims that employers may not have considered when purchasing their insurance.  Employers and their insurance brokers should review whether purchasing endorsements that may provide coverage for these claims are worthwhile. 

Even though SB 1596 has not become law (yet), this development still presents a great opportunity for Illinois employers to work with their legal counsel and insurance professionals to determine if they and their employees are protected.

 
Of course, we will continue to provide updates on the development of SB 1596. 

 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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