June 04, 2019

Employers Lose Protection of the WC/OD Acts

June 04, 2019

Governor J.B. Pritzker signed Senate Bill 1596 into law on May 17, 2019. The law amends the exclusivity provisions of the Illinois Workers’ Compensation Act and Occupational Diseases Act. Prior to May 17, 2019, the Acts served as the exclusive remedy for work-place injuries, and depending on the injury or exposure, mandated a time limit for an employee to file a claim. Prior to the amendment, the Acts imposed a time limit for filing (3 years after the accident or 2 years after last payment of compensation; or 25 years after the last day of employment in work with radiological or asbestos exposure). The amended law permits direct civil court actions against employers for injury and death claims after the time for filing has run under the Acts, with no stated time limit. The law’s impact will likely be seen in claims of asbestos exposure, cancer, and of workplace radiological exposure, where the discovery of the condition is made after the applicable time for filing under the Acts has run.

The law appears to be a response to a recent Illinois Supreme Court case, Folta v. Ferro Engineering, which left an injured plaintiff with work-related mesothelioma with no recovery, as the claim was barred by time limit provisions of the Acts. Specifically, the plaintiff’s condition was not diagnosed until 41 years after his last exposure, and the Act barred any claim filed 25 years after last exposure to asbestos, leaving the plaintiff without a remedy.

While the law does not comment on whether it can be applied to claims filed prior to May 17, 2019, there are questions as to the constitutionality of applying a law to cases that were barred by statute when originally filed. Fortunately, the law should have limited applicability. We believe this law may not provide any successful civil relief until 25 years from now (the year 2044), when employees would be barred from filing a workers’ compensation claim when the time between last exposure and discovery of the condition exceeds 25 years.

As a result of the new law, employers might need to consider additional coverage for this expansion in civil liability. If you have any questions, or would like to discuss the potential impact of this amendment or any recent legislation on your business, please contact any of our attorneys at 312-855-1105.