Senate Bill 1596: Impact on Injuries Involving Asbestos and Radiological Material
The Illinois General Assembly recently passed new legislation amending the Illinois Workers’ Compensation Act (“WC Act”) and Occupational Diseases Act (“OD Act”). SB 1596 provides that provisions of the WC and OD Acts “limiting recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision.” A statue of repose time bars a cause of action after the passage of time or an event that does not give rise to a lawsuit. The amendment would effectively allow civil suits beyond the time-barred provisions of the WC and OD Acts.
The provisions affected by SB 1596 include the following:
Section 6(c) of the WC Act states:
“In any case of injury caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos, the right to file such application shall be barred.” 820 ILCS 305/6(d) (West 2012) (emphasis added to original).
Section 1(f) of the OD Act states:
“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.” 820 ILCS 310/1(f) (West 2012) (emphasis added to original).
Notably, the provisions in the WC and OD Acts apply to injuries related to exposure to “radiological materials or equipment or asbestos” and injuries caused by “berylliosis or by inhalation of silica dust or asbestos dust.” The provisions do not apply to every injury covered by the WC and OD Acts.
The General Assembly passed SB 1596 in response to the 2015 Illinois Supreme Court decision in Folta v. Ferro Engineering. In Folta, the employee sought recovery 41 years after his termination for injuries resulting from asbestos. As the WC Act provides for a 25-year Statute of Limitations and the OD Act provides for a 3-year Statute of Limitations, the employee filed a common law cause of action against the employer and 14 additional defendants. The Court held no recovery was available under the WC or OD Acts due to the statute of repose. The court reasoned the employee could instead recover against third parties for wrongful death claims through a civil cause of action. Therefore, the employee had other means of recovery.
SB 1596 overturns Folta and exposes employers to civil actions outside the jurisdiction and intent of the WC and OD Acts, including the exclusivity provision of the WC Act. The language of the SB 1596 on its face appears to be far reaching. The amendment allows an employee, or his heirs, or anyone having standing under the law, to bring a civil action against an employer or employers.
SB 1596 expands liability of employers, but only in the context of injuries enumerated in Section 6(d) of the WC Act and Section 1(f) of the OD Act. Specifically, injuries related to “radiological materials or equipment or asbestos” and injuries caused by “berylliosis or by inhalation of silica dust or asbestos dust.” We believe other injuries are not impacted by SB 1596.
For injuries involving asbestos and radiological materials, the amendment could have an adverse effect on the intent of the WC and OD Acts. Under a civil cause of action, the employer could be exposed to large judgments that do not limit recovery, including punitive damages. Further, an employers’ workers’ compensation insurance may not cover civil causes of action, putting some businesses in danger of financial ruin. Even if the employee succeeds in civil court, businesses without insurance coverage may not have the means to fulfill civil awards that include large monetary judgments.
There are other concerns for the business community with SB 1596. Businesses will bear the additional costs of defending civil actions, including the costs associated with discovery and appeals. The intent of the WC and OD Acts to limit legal costs is undermined by civil actions that may expose employers to years of discovery and appeals.
Overall, we find the amendment narrowly applies to injuries involving “radiological materials or equipment or asbestos” and injuries caused by “berylliosis or by inhalation of silica dust or asbestos dust.” The amendment would not impact all workers’ compensation cases, but we have not seen the new legislation applied. The amendment was sent to the Governor on March 20, 2019 and will be effective immediately. We expect Governor Pritzker to sign the bill.
In a separate bill that has not been passed by the General Assembly, the legislature moves to redefine who can be appointed a Commissioner for labor.
HB 2301 amends the Coal Mining Act, the Illinois Workers’ Compensation Act and Occupational Diseases Act. The proposed legislation modifies the “employee class” Commissioner appointment, stating it would now have to be a “representative of a labor organization recognized under the National Labor Relations Act.” The bill is expected to be presented to the House floor next week.
The bill’s modest change will have a big impact on Commissioner appointments moving forward. We expect future Commissioners to be more favorable to labor unions.