You Thought You Were Covered - The New Wave of Civil Claims Against Illinois Employers For Latent Workplace Injuries

Articles & Publications

The American Bar Association Toxic Torts and Environmental Law Summer Newsletter
Summer 2019

Whether to account for eroded memories or the deterioration of evidence, plaintiffs in asbestos claims have long been given advantages not afforded to traditional plaintiffs. Governor Pritzker and the Illinois legislature have sought to further enhance the remedies available to these plaintiffs by carving out an exception to the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act for latent injuries. However, Senate Bill 1596, which Governor Pritzker signed into law on May 17, 2019[1], will lead to a wave of costly litigation extending well beyond asbestos cases.

Senate Bill 1596 & The Workers’ Compensation Act’s Statue of Repose

The Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act provide employees with the right to file for workers’ compensation benefits and mandates that this right is an employee’s exclusive remedy for work-related injuries and diseases [2][3]. Accordingly, such employees have been barred from brining civil lawsuits for work-related injuries. [4].

Until the passage of Senate Bill 1596, the combined acts included two separate statute of repose provisions that had been strictly applied by courts. [5] First, “[I]n cases of disability caused by exposure to . . . asbestos, unless application for compensation is filed with the Commission within 25 years after the employee was so exposed, the right to file such application shall be barred.” [6][7]. The second establishes that, “no compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” [8] These provisions are distinct but are applied together, as Section 1(f) requires that the disablement due to an occupational disease must occur within a specific time period after last exposure, while section 6(c) requires that a claim be filed within a time period after the last exposure. Plasters v. Industrial Comm’n, 615 N.E.2d 1145, 1149 (5th Dist. 1993).

American workplaces phased out the use of asbestos products beginning in the late 1960’s.  The disease asbestosis, caused by the inhalation of massive quantities of asbestos fiber, was common decades ago and early indications of the disease were quickly seen radiographically; but the incidence of this disease has tracked the use of asbestos down to almost zero.  By contrast, asbestos related cancers (including mesothelioma) continue to be seen in America; these diseases have lengthy, multi-decade latency periods before they manifest. Because of these facts, essentially zero employees will experience symptoms within 3 years of their last day of exposure and only a small minority will be diagnosed within 25 years of their last day of exposure. [9] With full appreciation of this reality, the Illinois Supreme Court has held that the exclusive remedy provision applies to occupational diseases barred by the statute of response. [10] The Court reasoned that “[t]he acts do not prevent an employee from seeking a remedy against other third parties for an injury or disease. Rather, in this case, the acts restrict the class of potential defendants from whom [Plaintiff] could seek a remedy.” [11]

In an attempt to overturn this judicial precedent, Illinois lawmakers passed Senate Bill 1596 to expand employees’ class of potential defendants to include their employer. Specifically, the new statute amends 820 ILCS 305/1.2 and states that the exclusive remedy provisions

“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.” [12]

Yet, this new exception will create new claims which have not been litigated previously and how it interacts with other provisions of the Workers’ Compensation and Workers’ Occupational Disease acts are far from clear and are certain to prompt litigation.

New Potential Plaintiffs

The amendments apply to claims barred by any repose provisions contained within the acts. Therefore, it applies regardless of whether a plaintiffs’ workers’ compensation claim was barred under 1(f) or 6(c).  Employees will now bring civil lawsuits for latent occupational diseases and other injuries against their employers for those injuries which employers were previously shielded from liability.

Looking solely at the sheer volume of claims filed, the largest new pool of plaintiffs’ is likely to be those suffering from asbestos related diseases.[13] Yet the broad language which encompasses the three year statute of repose period in 6(c) will allow former employees suffering from other conditions to file these new civil actions as well. Governor Pritzker’s statement on his signing of the bill explicitly references employees who were exposed to radiation and beryllium and [14] Illinois Courts have already barred employees’ claims under this repose provision for pneumoconiosis, benzene exposure, and even damage to hearing from loud noises. [15][16][17]  It is conceivable that former employees suffering from degenerative orthopedic injuries which manifest years after employment will now have access to the court room against their employer.

Constitutionality: Ex Post Facto Lawmaking

One of the most important questions created by Senate Bill 1596 is if this newly created exception will be applied retroactively. Nothing in the statute makes it explicitly retroactive. “Basic statutory interpretation principles dictate that the law in force at the time the employee was working for the employer and suffered the allegedly harmful exposures will apply.” [18] The question will turn in part on whether the statute is deemed to be procedural or legal. “Those [laws] that are procedural in nature may be applied retroactively, while those that are substantive may not.” [19] “Even a procedural law may not be applied retroactively if it: “(1) impairs rights that a party possessed when it acted, (2) increases a party’s liability for past conduct or (3) imposes new duties with respect to transactions already completed.” [20]. Because this class of plaintiffs had no cause of action against their employers prior to these amendments it seems clear that the judicial factors stopping retroactive application are met.  The rights bestowed on the employer by legislation are impaired if not eliminated.  Employers face new liabilities against a new class of plaintiffs for actions that occurred potentially decades in the past.  Moreover, the amendments alter employers’ bargained employment and insurance transactions of the past and the considerations on which those contracts were made. However, contrary arguments will certainly be made, the issue will be left to the discretion of the trial court judges and will almost certainly need to be litigated through the appellate system. For a more in-depth assessment the statute’s constitutionality, see “Ill. Workers' Comp Bill Should Not Apply Retroactively,” published through Law360 and sited herein.

Other Workers’ Compensation Bars: Last Exposure

Since Senate Bill 1596 only targets the “period of repose or repose provisions” of the Illinois Workers’ Compensation and Illinois Occupational Disease Act, it does not impact 820 ILCS 310/1(d).  This section of the act provides: “The employer liable for the compensation in this Act shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed upon regardless of the length of time of such last exposure, except, in cases of silicosis or asbestosis, the only employer liable shall be the last employer in whose employment the employee was last exposed during a period of 60 days or more after the effective date of this Act, to the hazards of such occupational disease, and, in such cases, an exposure during a period of less than 60 days, after the effective date of this Act, shall not be deemed exposure.” [21] The Illinois Supreme Court upheld this section in 2003, holding that only the last employer could be held liable for damages the Plaintiff suffered as a result of exposure to loud noises. [22] This section of the Act remains unchanged by the amendments and should continue to protect all employers except for an employee’s final employer from the impact of these amendments.  However, attorneys litigating in this area should take note of this language contained in the amendment, “the nonwaivable right to bring such an action against any employer or employers.” [23]. This language suggests an employee could have the right to bring a cause of action against multiple employers. The use of the plural in the statute can be reconciled with 310/1(d) because the diseases asbestosis and silicosis are specifically exempted from the last employer rule. Thus, only in claims for these two diseases would an employee have a right to bring this new civil claim against more than his final employer.

Contribution: Statutory Liens

Potentially the largest impact on employers is the likely loss of their ability to file a statutory lien against plaintiffs’ monetary awards obtained from third parties. Since Senate Bill 1596 attacks the exclusive remedy provisions rather than the repose provision, the legislature has chosen to provide this new class of plaintiffs with a civil remedy apart from workers’ compensation. Under 820 ILCS 305/5(b). “An employer is entitled to a workers’ compensation lien on any recovery that its injured employee might get from a third party that caused or contributed to the injury.” [24][25] This provision of the Act enabled employers to recover dollars paid to employees who received workers’ compensation payments when those employees pursued claims against third parties who contributed to the injury and prevailed.  [24][25] In practice, many plaintiffs chose not to file workers’ compensation claims and only pursued the more lucrative lawsuits against third parties. Plaintiffs’ attorneys will claim that because these lawsuits are proceeding under wrongful death and Section 27-6 of the Probate Act of 1975, [26] they are completely divorced of the practices and procedures of workers’ compensation claims. Employers will counter that this interpretation forfeits a significant number of the bargained for protections of the workers’ compensation system, on which they relied in making employment, insurance, and other decisions. The courts will decide; but it is conceivable that employers no longer have the right to a lien against third party recoveries and will not be able to recover via lien the amounts paid to resolve lawsuits filed by the new class of plaintiffs.

Conclusion

Employers litigating claims under Senate Bill 1596 will be subject to new liabilities and will also bear the increased cost of defending a civil action rather than a workers’ compensation claim.  The impact of Bill 1596 on employers’ abilities to obtain insurance and the increased cost of that insurance is not yet known.  With the large pool of potential plaintiffs created by this legislation, employers will need to aggressively defend these matters early in order to ensure a limited application of the 820 ILCS 305/1.2. Fighting for a purely prospective application of the law and the application of 820 ILCS 310/1(d) will be key to staving off the potential tidal wave of new claims by employees.

[1] Pritzker Signs Asbestos Tort-Claims Bill Into Law, Workers Compensation News (May 21, 2019), https://www.workcompcentral.com/news/article/id/51d497f88354ddd70815c242348a64be0ed97bcb.

[2] 820 Ill. Comp. Stat. Ann. 305/1.

[3] 820 ILCS 310/1.

[4] Folta v. Ferro Engineering, 43 N.E. 108, 114-15 (Ill. 2015).

[5] Plasters v. Indus. Comm'n, 246 Ill. App. 3d 1, 7–8, 615 N.E.2d 1145, 1149 (5th 1993).

[6] 820 ILCS 310/6(c).

[7] 820 ILCS 305/6(d).

[8] 820 ILCS 310/6(c).

[9] G. Frost, The Latency Period of Mesothelioma Among a Cohort of British Asbestos Workers, British Journal of Cancer (2013)(discussing the latency period for mesothelioma).

[10] Folta v. Ferro Engineering, 43 N.E. 108, 114-15 (Ill. 2015).

[11] Folta v. Ferro Engineering, 43 N.E. 108, 120 (Ill. 2015).

[12] 820 ILCS 305/1.2.

[13] Megan Shockley, Asbestos Litigation Trends: Midyear Update, KCIC (September 4, 2018), https://www.kcic.com/trending/feed/asbestos-litigation-trends-midyear-update/.

[14] Office of the Governor, Gov. Pritzker Signs Legislation Helping Workers Exposed to Toxic Substances (May 17, 2019), https://www2.illinois.gov/Pages/news-item.aspx?ReleaseID=20071.

[15] Hicks v. Indus. Comm'n, 251 Ill. App. 3d 320, 324, 621 N.E.2d 293, 295 (1993).

[16] Serv. Adhesive Co. v. Indus. Comm'n, 226 Ill. App. 3d 356, 366–67, 589 N.E.2d 766, 772 (1992).

[17] Hamilton v. Indus. Comm'n, 203 Ill. 2d 250, 256, 785 N.E.2d 839, 842 (2003).

[18] William Irwin, Ill. Workers' Comp Bill Should Not Apply Retroactively, Law 360 (May 8, 2019), https://www.law360.com/articles/1156925/ill-workers-comp-bill-should-not-apply-retroactively.

[19] William Irwin, Ill. Workers' Comp Bill Should Not Apply Retroactively, Law 360 (May 8, 2019), https://www.law360.com/articles/1156925/ill-workers-comp-bill-should-not-apply-retroactively.

[20] William Irwin, Ill. Workers' Comp Bill Should Not Apply Retroactively, Law 360 (May 8, 2019), https://www.law360.com/articles/1156925/ill-workers-comp-bill-should-not-apply-retroactively.

[21] 820 ILCS 310/1(d).

[22] Hamilton v. Indus. Comm’n, 203 Ill. 2d 250, 256, 785 N.E.2d 839, 842 (2003).

[23] 820 ILCS 305/1.2. (emphasis added)

[24] John Dwight Ingram, The Meaning of "Arising Out of" Employment in Illinois Workers' Compensation Law, 29 J. Marshall L. Rev. 153, 169 (1995).

[25] Cooley v. Power Constr. Co., LLC, 2018 IL App (1st) 171292, ¶ 15, 107 N.E.3d 435, 440. (1st 2018).

[26] 820 ILCS 305/1.2.