Illinois recently saw a major change to the longstanding exclusive remedy provision of the State’s workers’ compensation system.Under Public Act 101-0006, claims forinjury or death resulting from occupational diseases are now excluded from the statutes of repose provisions of the Illinois Worker’s Compensation Act and the Workers’ Occupational Diseases Act.Furthermore, this new legislation specifies that anyone who has standing to bring a civil action on the basis of occupational disease has a non-waivable right to bring such an action against any employer(s) for tort liability – in other words, the exclusive remedy of workers’ compensation is no longer exclusive. Many are concerned this significant change to the framework will damage the delicate balance of rights, remedies, and liabilities necessary for an effective no-fault compensation system.
Recovery under Illinois’ workers compensation system has generally been the exclusive remedy available to an employee or employee’s estate against an employer for an injury or death that occurred during the course of the employment. Unlike in civil courts, a claimant in workers’ compensation is not required to prove the employer was at fault for his or her injury.On balance, an employee or employee’s representative seeking compensation from an employer has been required, for the most part, to do so outside of the circuit court system and within a prescribed period of time.
In 2015, the Illinois Supreme Courtrecognized the importance, and reinforced the strength, of the exclusive remedy provisions in holding a plaintiff’s claims were barred from a circuit court action, even though, through no fault of the worker, the statutes of repose prevented his claims under the Act. In Folta v. Ferro Engineering, 2015 IL 118070, an employee sought relief in civil court one month after he developed mesothelioma. The employee, and later his widow after his death, claimed the defendant-employer was responsible for his exposure to asbestos, which in turn caused his injury, and ultimately his death.The employee attempted to apply an exception to the exclusive remedy provision to keep his claim in civil court.He argued because he last worked for defendant-employer forty-one years prior to his injury, and thus was barred from seeking recovery under the Worker’s Compensation and Occupational Disease Acts by their limitations periods, that his injury was not compensable under the Acts. The Supreme Court disagreed and relied on the plain language of the exclusivity provision, stating “the General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from asbestos exposure must be brought.” Id. at para 34. To accept the employee’s argument “would mean that the statute of repose would cease to serve its intended function, to extinguish the employer’s liability for a work-related injury at some definite time.” Id. at para 35.
By passing and signing SB 1596 into law, Illinois has invalidated that holding and created an environment of unpredictability and uncertainty for employers. With the statutory limitations on recovery considerably weakened, employers can no longer rely upon the finality that came with the passage of time.Furthermore, when subjected to tort liability for occupational disease claims of employees, employers face the potential for large verdicts and punitive damages in the civil court system. Meanwhile, employees are still able to impose liability upon employers without proving fault, but now without the same guidelines as to how or when those claims must be brought. Employers facing occupational disease claims in Illinois will need to immediately adapt to this consequential shift.