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The United States Appellate Court Has a Few Questions…and We Definitely Want Those Answers
Buddha is credited with having said, “The trouble is you think you have time.” A fundamental principle of law is there is only a certain amount of time to bring a case before a court before it is no longer allowed to be heard. This holds true for claims stemming from work accidents governed by the Workers’ Compensation Act (“WCA”), as well as workers who contract diseases or disablement due to industrial exposures.
In Illinois, when employees contract a disease arising out of and in the course of employment, they may be entitled to benefits pursuant to the Workers’ Occupational Diseases Act, 820 ILCS 310/1 et seq. (“ODA”). The ODA closely mirrors Illinois’ Workers’ Compensation Act, but with some critical distinctions. Entitlement to benefits under the ODA is not absolute, and a claim must be timely filed for the Illinois Workers’ Compensation Commission (“IWCC”) to hear it.
Generally speaking, the ODA permits claims for occupational exposure/disease claims that “occur” within two years of the last exposure to the hazards causing the disease (at work). A claim must be filed with the IWCC within the later of three years after disabled, or two years from the last payment of compensation. Narrow exceptions exist, such as for exposures to radiological material and asbestos, contained in Section 1(f).
Historically, the ODA provided the exclusive remedy for workers with diseases or medical conditions resulting from industrial exposures. This “exclusive remedy provision” prohibits employees from filing lawsuits for those conditions against their employers in the circuit courts. Keeping those claims within the IWCC’s jurisdiction delivers swifter results for employees and lowers employers’ liability by eliminating purely subjective remedies such as “pain and suffering.” As with the WCA, the ODA is the “full, complete and only measure of liability of the employer,” according to the statute. Four exceptions to the exclusive remedy’s application exist:
- The injury was not accidental (i.e. intentional, or negligence rising to that level);
- The injury did not arise from the employment;
- The injury did not occur within the course of employment; and
- The injury was not compensable under the Act.
Following the Illinois Supreme Court’s decision in Folta v. Ferro Eng’g in 2015, the Illinois General Assembly passed legislation creating an exception to the exclusivity provision in 2019. For background, the Folta case presented a situation where an employee was diagnosed with mesothelioma in 2011 due to alleged asbestos exposure. The claimant was exposed to asbestos at work in 1970, long after the 25-year time allowed to file a claim for compensation under the ODA.
The 25-year timeline within which to file an asbestos claim is perceived by many people as a statute of repose. A statute of repose extinguishes all liability after a fixed point in time, regardless of when the cause for the underlying claim accrues or a claimant’s diligence, conduct or even knowledge of a potential claim to pursue. As a consequence, the Illinois Supreme Court found the decedent’s widow in Folta was barred from pursuing a claim for the alleged work exposure due to the ODA’s 25-year statute of repose, and that the ODA was her exclusive remedy. Noting the result was “harsh,” the Illinois Supreme Court hinted that a legislative change might be warranted to address such situations where an employee isn’t even aware of a having a disease/condition until after the time to file a claim has already expired.
The Illinois legislature followed through four years later in 2019, creating an exception to the exclusivity provision in Section 1.1 of the ODA (“Exception 1.1”). The exception allows a lawsuit to be filed against the employer in the circuit courts when a claim is precluded “by a statute of repose or a repose provision.” This change unlocked a legal remedy when the ODA prohibited bringing a claim because of two items entirely outside the worker’s control or diligence. First, the worker didn’t even become aware of a work-related disabling condition until after the period to file a claim had lapsed. Secondly, not knowing about the disabling condition existence prevented filing a timely claim for it with the IWCC, essentially barring the claim.
Following the change in the law for Exception 1.1, Illinois businesses have worried about the ripple effect from this blow dealt to the exclusive remedy provision, and fear the extremely expensive circuit court outcomes. The potential for more exclusive remedy exceptions in the future would leave employers more vulnerable to civil lawsuits from their employees. Other concerns have also surfaced. For example, would there be any insurance coverage for a claim that accrued decades earlier? What if the carrier no longer exists? Is the employer directly liable, without limitation, if there had been coverage for the occurrence that can no longer be satisfied? How would spoliation concerns for missing or no longer available evidence be handled?
The United States Court of Appeals (7th Circuit) certified three questions for the Illinois Supreme Court to answer on the subject. The case, Martin v. Goodrich Corp., et. al, presented a similar factual scenario as Folta. An employee worked with a hazardous chemical (vinyl chloride monomer) from 1966-1976. After 1976, the use of the chemical was discontinued. The employee continued to work for Goodrich up until his retirement in 2012. In 2019, it was discovered that the employee had angiosarcoma of the liver, which proved fatal the following year. His widow brought a civil lawsuit in the circuit court against the employer and an acquiring company under Exception 1.1. Specifically, she claimed the applicable statute of repose expired, resulting in the need to file a lawsuit against decedent’s former employer in circuit court.
The defendants moved for dismissal on two grounds. First, they contend that the period allowed to file a claim under the ODA is a “temporal limitation” as discussed by the Illinois Supreme Court, and not a statute of repose. The widow in Martin relies upon the time allowed in the ODA being a statute of repose for Exception 1.1 to apply and allow her case to proceed at the circuit court. The United States Court of Appeals found the answer unclear. It noted that Illinois courts refer to the relevant portion of the statute as both operating “as a statute of repose,” but also “a condition precedent to recovery.”
Next, the defendants argued that the 2019 law cannot apply to conduct that occurred decades before its enactment. Again, the United States Court of Appeals could not distinguish whether or not Exception 1.1 has retroactive applicability.
The United States Court of Appeals certified both these questions for the Illinois Supreme Court. They also added a third (derivative of the second) about whether Exception 1.1 applying to past conduct violates due process protection by resuscitating a cause of action after it has been extinguished. The questions posed to the Illinois Supreme Court are as follows:
- Is 1(f) a “period of repose or repose provision” for the purpose of Exception 1.1?
- If 1(f) falls within Exception 1.1, what is the temporal reach – either by its own terms or through Section 4 (the statute of limitations)?
- Would the application of Exception 1.1 to past conduct offend Illinois’ due process guarantee?
The Court appropriately noted that the answers will impact “an untold number of claims,” each with high stakes, and since the impact is confined to Illinois, Illinois judges are best left to answer these questions. I, and I suspect many others, eagerly await those answers.
Preserving the exclusive remedy is paramount for Illinois employers, and my desire is that sanctity is maintained with the Illinois Supreme Court’s answers to the above questions.