A new Illinois law signed by Gov. J.B. Pritzker does not repeal or extend the limitation on when an employee can file a claim under the workers' compensation system, it creates "unprecedented new rights," a Chicago-based defense lawyer said.
Senate Bill 1596, the Workers' Compensation Repose Act, will allow those barred from making a claim under a 25-year statute of limitations laid down by the Illinois Workers' Compensation Act to instead sue for work related exposure to "latent" diseases in civil court.
The workers' compensation system is designed to make sure workers have prompt access to benefits and medical care, with the quid pro quo that any disputes remain away from the civil courts, otherwise known as exclusive remedy. The law removes the statute of repose, or limitation, language from the acts and allows individuals to sue for latent injuries.
"They didn’t actually repeal the statute of repose; they created unprecedented new rights," Eugene Keefe of Keefe, Campbell, Biery & Associates, one of the most experienced defense attorneys in the state, told the Record.
Keefe said that most workers' compensation policies do not mention or protect an employer from civil suits, and most general liability policies do not cover employers for "work-related exposures/diseases/injuries –because they are supposed to be covered under WC coverage."
"So a civil lawsuit against an employer for a work-related exposure/injury falls into uncharted and unprotected land in this nutty state," Keefe said. "Illinois has never had a law that allows for workers to sue their employers in circuit court for work-related exposures/injuries."
The bill attempts to do a side run around a 2015 Illinois Supreme Court ruling that barred the plaintiff from suing in civil court and upheld the time bar on workers' compensation claims.
Certain asbestos and other occupational disease and injury claims are taken out of the workers' compensation system. It will allow certain individuals to sue in civil court.
In a statement following the signing of the bill, Pritzker said it will allow workers "who have been exposed to toxic substances (to) pursue justice in Illinois courts."
"In some cases, the 25-year limit imposed by the Illinois Workers' Compensation Act and the Workers' Occupational Diseases Act is shorter than the medically-recognized time period in which some diseases generally manifest," the statement said.
"SB 1596 protects victims' access to justice beyond that time limit."
But the law could be the subject of a constitutional challenge while there are questions over the wording of the statute, particularly in relation to whether it can be applied retroactively and therefore "revive claims that were already time barred," Todd Rowe of the Tressler law firm wrote in a post. "Illinois courts will undoubtedly be called upon to interpret this law in order to provide Illinois employers with proper guidance."
Keefe posed a range of other questions and added, "Latent means: (of a quality or state) existing but not yet developed or manifest; hidden or concealed."
"Is that a sore shoulder/knee/foot? Is that an exposure to asbestos from 35 years ago that hasn’t yet developed into a disease?" Keefe said. "How about lung cancer from exposure to second-hand smoke 30 years ago? How about skin cancer from working outdoors without sunblock 26 years ago? "Does carpal tunnel and cubital tunnel from working on an assembly line in the '70s apply to latent? Is there a line to be drawn on 'latent'?”
The law does not expand the workers' comp system, Keefe said, adding that it "provides an all-new civil action unprecedented across our nation. ...They could have expanded the WC system but the asbestos plaintiff lawyers would then have had to watch WC lawyers get the benefit."
"It is reasonable to believe that some companies under the right circumstances may experience more exposure to premises asbestos claims," Andrew R. German of the Chicago-headquartered Husch Blackwell Law Firm said. "The new law proposes to strip these companies of some of the defenses and protections that the Illinois Workers’ Compensation Act once provided them."