Illinois Passes Legislation Seen as Threat to Exclusive Remedy

Nancy Grover

Springfield, IL ( – Legislation on its way to Illinois’ governor would allow some workers to sue their employers for occupational injuries. Supporters say it rights a wrong in the system that prevents workers with latent injuries from getting coverage. Opponents argue it sets a bad precedent and could potentially drive some companies out of business. As of late yesterday, some were urging the governor to veto the measure and allow stakeholders to address the workers’ compensation issues.

Senate Bill 1596 amends sections of the state’s Workers’ Compensation Act and the Workers’ Occupational Diseases Act limiting recovery to not apply to injuries and illnesses that result from occupational diseases due to exposure to toxic substances. Specifically, it applies to cases in which the statutes of limitations preclude recovery. The bill’s sponsor says it addresses workers exposed to asbestos, radiation or beryllium who develop symptoms after the statutes of limitations to file for benefits have passed.

“Currently, the WC/OD Acts have finite periods for filing a claim – 25 years pursuant to the WC Act and 3 years as it relates to disablement and 25 years pursuant to the OD Act. A claimant is barred from bringing a claim after these time frames,” according to Cari Miller, director and counsel for Government Affairs, for Gallagher Bassett. “This time-bar was upheld by the Illinois Supreme Court in 2015.”

In Folta v. Ferro Engineering, a worker was diagnosed with mesothelioma 41 years after his work exposure to asbestos. He subsequently brought a civil action in circuit court.

In its ruling, the higher court said the exclusive remedy applied in the case, but the statutes of limitations had run out. “We are cognizant of the harsh result in this case,” the court said. “Nevertheless, ultimately, whether a different balance should be struck under the acts given the nature of the injury and the current medical knowledge about asbestos exposure is a question more appropriately addressed to the legislature. It is the province of the legislature to draw the appropriate balance. It is not our role to inject a compromise, but, rather, to interpret the acts as written.”

But the measure passed by both chambers of the legislature this week is the wrong way to go, opponents say. “I don’t think our legislature thought enough about how it’ll impact the workers’ compensation system,” Miller said. “Right now, workers’ compensation policies exclude civil actions, and business policies exclude workers’ compensation because they are separate systems. So how are you supposed to marry the two systems that were never intended to be married?”

The number of claims that would be affected by the legislation is small. In fact, Miller says it is so rare there should be an easier way to address them. But a concern is that it could lead to expanded efforts to bypass the workers’ compensation system.

“Right now it’s very specific to certain types of claims,” Miller said. “But some might say, ‘why are we just stopping at these types of claims?’ I think it will be pushed that way and expand the type of claims a little bit.”

Another concern is that it might result in a flood of claims that may or may not be related. “There’s going to be a push [by some attorneys] to try to get those claims out there and identified,” she added.

Finally, a big concern is what claims would be impacted by the law. Closed cases, for example, might be reopened. It’s unclear whether the law would be retroactive.

Miller said after the bills had passed in both chambers yesterday, a democratic House member indicated:

  • The legislation only applies to individuals diagnosed after the 25 year statute of repose
  • There is no impact on the statute of limitations in the Workers’ Compensation and Occupational Diseases Acts and the civil action statute of limitations also applies
  • There will not be any double-recovery.

The Illinois Chamber of Commerce is “recommending the governor veto and convene stakeholders to work out the workers’ compensation issues,” she said.

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