Shortly after the inauguration of Illinois Governor J.B. Pritzker, legislation was introduced in both the Illinois House and Senate to essentially override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015). In Folta, the Illinois Supreme Court held that the Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy to Illinois employees who suffered latent injuries such as mesothelioma.
While the recently introduced legislation, SB 1596, is a significant change in Illinois public policy, the Illinois Senate quickly passed the bill on a strict party line vote. SB 1596 was then sent to the House, where it was also quickly approved along party lines. The House never addressed any alternative to keep such claims in the workers’ compensation system. The bill is currently on the desk of the Governor and awaiting signature.
To better understand the meaning and effect of the proposed legislation, it is important to understand the law as it reads today. Currently, under the Workers’ Compensation Act, employees who are injured in the course of their employment do not have a civil tort cause of action against their employer. Rather, an employee’s exclusive remedy lies under either the Workers’ Compensation or Occupational Disease Acts. In return for the employer’s absolute liability for injuries that arise out of and in the course of employment, the employee gives up all statutory and common-law rights of action against the employer for unintentional injuries arising out of the course of employment. Another intended consequence of the Acts is to prevent the judicial system from bogging down with civil tort cases every time an employee is injured at work.
The Workers’ Compensation Act and Occupational Disease Act limits compensation specifically to what is included under the Acts. Thus, under the current law, damages for traditional tort principles such as pain and suffering and loss of consortium are not available under either of the Acts. It prevents employees from recovering from the Workers’ Compensation Commission and then suing their employer for traditional tort damages.
Section 6 of the Illinois Workers’ Compensation Act proscribes a repose period ending an employer’s liability after a set period of time regardless of the employee’s knowledge, or lack thereof, about their cause of action. As it currently stands, under the Workers’ Compensation Act:
“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 Ill. Comp. Stat. Ann. 305/6. The repose provision under the Occupational Diseases Act states:
“In cases of disability caused by exposure to radiological materials or equipment or 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.”
The new bill, SB 1596, creates two new statutes – 820 ILCS 305/1.2 and 820 ILCS 310/1.1, which will create limited exceptions to the rules providing limits of liability for unintentional work injuries, as discussed above. Under these two new statutes, some claims that were barred due to the expiration of the period of repose are able to be filed as civil claims, depending on how much time has passed since the plaintiff’s last exposure while working for his employer. SB 1596 will have a substantial effect on the Occupational Diseases Act, as it will essentially overturn the Folta decision and eliminate the workers’ compensation exclusivity protection that has been provided to employers under the Occupational Disease Act for toxic exposures.
Under the proposed legislation, a claimant suffering a disability due to asbestos exposure within 25 years of the claimant’s last exposure will still be limited to recovery under the Occupational Diseases Act. However, a claimant who suffers a disability due to exposure to asbestos more than 25 years after his last exposure not only will be able to file a civil action, but will no longer be confined to the limitations on compensation under the Occupational Diseases Act. The practical effect of this new law is that an employee can seek compensation under traditional tort theories for compensation for damages, such as pain and suffering or loss of consortium, and may soon be able to recover higher damages than what they could previously recover under Workers’ Compensation. However, the employee will have a different burden of proof that applies in the civil action and the employer will be permitted to engage in the normal discovery process permitted by the Illinois Rules of Civil Procedure (which is not currently available under the Workers’ Compensation Act). This situation should only arise when an employee’s “asbestos-related” occupational disease/exposure case is beyond the 25-year statute of repose period. Otherwise, the new legislation does not allow the employee to opt out of the Workers’ Compensation System if a claim could still be filed within the statutory period specified under either Act.
 At this time, it is not clear whether the SB 1596 will be applied retroactively or prospectively to asbestos cases. The four corners of the bill do not discuss this issue, and there are constitutionality concerns on whether a bill can apply to cases that were barred by statute when originally filed. While plaintiffs will certainly argue for retrospective application, it will likely take an appellate court to rule on this issue before it is clear whether the bill will apply retroactively to pending asbestos cases or prospectively to only new asbestos cases filed after the bill is signed into law by the Governor.