Synopsis: Open up the Floodgates! And Now the Town is Gone… Illinois Legislature Proposes a Statutory Exception to the IL Workers Compensation Act With Uncapped Liability for “Latent Injuries.” Analysis by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D.
Editor's Comment: Please note our nutty State is in a very odd political situation—we are a “one-party State.” In short, there is literally nothing the Republicans in Springfield can do other than to let the voters know what is happening and then see if public opinion will sway the dominant Democratic party. IL Democrats have super-majorities in both the IL Senate and House and our Governor is also Democrat.
We learned both Houses of the Illinois legislature recently proposed two identical bills in the House and Senate: House Bill 2479 and Senate Bill 1596. This unprecedented and unneeded prospective legislation amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to directly sue their employers in civil proceedings for a latent injury. In effect, this shocking IL WC Act amendment subjects Illinois employers to unlimited liability in tort for their employees’ “latent injury” claims. It may also happen in a fashion that may render Illinois employers uninsured for potentially thousands of expensive and unpredictable claims. In Gene’s view, this legislation is being quietly driven by ITLA or the Illinois Trial Lawyers Ass’n who may make zillions in new fees while destroying jobs and the Illinois marketplace.
Yes, You Heard Us Right—There Will Be No Insurance for Billions of Dollars in Old and New Unprecedented IL Workplace Exposures
As veteran defense lawyers, we want our readers to know this legislation, if passed, almost certainly will unwittingly strip Illinois employers of any insurance coverage for these types of massive claims due to common CGL policy and workers’ compensation policy exclusions. One of the bills is being called to a Senate Judiciary Committee hearing tomorrow, Tuesday, March 5, 2019.
Why does this matter to all of our readers in the insurance, claims and other related industries? Well… This legislation, if it becomes law, could effectively bankrupt your business quickly or over time. In our view, it makes absolutely no sense to push this legislative agenda in Illinois, unless the goal is removing all manufacturing and other businesses from the state—we hope that cannot be the goal of Illinois Democrats. Foresight is like hindsight, but proper foresight matters in pushing individual legislative agendas against IL employers. That’s because ultimately there needs to be money to defend, manage and pay these types of claims. That money either comes from IL employers or from their insurance carriers. If the employer goes broke in paying likely expensive “latent injuries,” then there will be no money left for Claimants.
The Proposed Amendment Ignores and Strips Away the Logic of the Exclusive Remedy Provision of the Illinois Work Comp Act and the Workers OccDisease Act.
As currently written, these WC/OD Acts impose liability without fault upon employers and, in return, prohibit expensive and explosive common law suits by employees against their employers. The exclusive remedy provision was part of both Acts’ “grand bargain” of the sacrifices and gains of employees and employers. In effect, employers assumed no fault liability to their employees, while being relieved of the prospect of large and unpredictable damage verdicts.
Perhaps the Illinois legislature and the newly minted Governor believe that where there’s a will, there’s a way. In other words, they may believe insurance companies will adjust and provide endorsements for these types of claims. However, those types of endorsements will be enormously cost prohibitive—if insurance companies will even offer them. The reason is that such claims likely will result in severe injuries and deaths, especially in asbestos exposure (and ultimately the development of mesothelioma) or other similar types of “latent injuries.”
Additionally, these types of claims can be difficult to defend given the timing of them—they present symptoms and damages decades after exposures. And then there’s difficulty of locating the particular culprit that might have caused the disease or deleterious condition. Years and years of experts have developed theories, such as the “single exposure” theory. The theory means one single exposure to a “latent injury” pathogen or other mechanism can proximately cause the disease.
Make no mistake, these types of legislative exposures are an affront to keeping Illinois manufacturing, construction, health care and other types of major businesses in Illinois.
What’s a latent injury? ‘Latent’ is defined in Merriam-Webster’s as present and capable of emerging or developing but not now visible, obvious, active or symptomatic. Okay! It should be easy to determine what employers now face if this bill passes, right? Wrong! Some of the potential types of exposures and other injuries that are latent would be:
Electromagnetic Fields Antidepressant Drugs Ephedra and PPA;
Blood Products (HIV/Hepatitis) Diethylstilbestrom;
Muscoskelital (lower back pain);
Long term hearing loss from work noise-industrial deafness;
Lead paint exposure;
Acoustic shock; or
Repetitive trauma claims.
There are many other possibilities, but these are some of the major areas we would expect to be contemplated by the legislative acolytes at the Illinois Trial Lawyers Association.
House Bill 2479 and Senate Bill 1596 amend the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act. They provide specified current Sections 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. It also provides that, as to any such injury or occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action in Circuit Court against any employer or employers.
If the latent injury discussion remained in the workers’ compensation arena, then perhaps this would not be as big of a deal. This is where this type of claim against employers should properly be. Nonetheless, that is not what this new legislation mandates. Instead, it’s another attempt by the Illinois Trial Lawyers Association to circumvent the IL Workers’ Compensation Act to keep having Plaintiff lawyers get richer and richer. Ultimately, this will not protect individuals, because the money will dry up quickly. And if there’s no way to pay claims, then there’s no money for injured persons that truly need it.
This type of legislation not only would force Illinois businesses out but would eventually kill those businesses by whatever prior connection they had to Illinois from decades past. This will likely lead to business dissolutions and/or bankruptcies.
Perhaps an alternative the legislature could debate would be extending the twenty-five-year repose period under the Acts. Because not being insured is not good for employees either. And if this legislation is passed and signed by the Governor, then say bye to insurance for latent injuries to employees. Instead, employers will come to find they have no coverage for a latent injury suit by an employee, which could potentially rise to the level of a wrongful death claim—meaning multi-million-dollar judgments. Ultimately, these bills do not even aid in injured workers viable recoveries, which completely defeats their purpose.
We’ll continue to apprise our readers of the progress of these short-sighted bills.
The research and writing of this article was performed by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D. Bradley can be reached with any questions regarding employment law and commercial general liability defense at email@example.com.
Synopsis: Claimant Loses Claim for Wage Loss Due to Non-Cooperation with Voc and No Self-Directed Job Search. This Ruling is a “Must-Read” for IL WC Attorneys on Both Sides.
Editor’s comment: I feel this is a solid and fair Appellate Court decision clearly defining the evidence needed to support a claim for “maintenance” benefits and when Claimants can seek IL WC wage loss benefits.
In Euclid Beverage v. Illinois Workers' Compensation Comm'n, (Issued February 25, 2019), our IL WC Appellate Court denied wage loss benefits to an injured beverage distributor whom it ruled did not seek job rehabilitation services in light of diminished abilities following a back injury that aggravated his degenerative condition.
Claimant was working in the beverage distribution business for over 30 years and for Respondent Euclid Beverage LLC at the time he injured his back stocking a cooler at a grocery store in 2011. This injury that led to multiple doctors diagnosing and treating him for an injury aggravated a condition common with age. In 2011 Respondent initially terminated his employment because he could not be accommodated even with light duty. Three months later, a manager at Respondent offered him a position in the warehouse, managing people and not lifting anything. Claimant declined to interview for the job, which the hiring manager later testified did not rely on lifting or other physical work—it was purely management.
Two months later, in 2012, a doctor released Claimant to work with restrictions: not lifting more than 15 pounds and alternating between sitting and standing. Petitioner subsequently filed for WC benefits, which the employer accepted as compensable.
The Arbitrator heard the facts and found him eligible for temporary total disability from 2011 to 2012, “maintenance” benefits from 2012 to 2015, intending to help supplement his income while he arguably sought employment or training, and wage loss benefits of $434 per week from 2015 for “the duration of his disability.”
Respondent filed a review before IL Work Comp Commission, which adopted the Arbitrator’s award in part providing a temporary total disability credit of $713 per week for 22 weeks and then maintenance of $714 for 167 weeks but cut the wage loss award to a “percentage of person as a whole award,” limited to $643 per week for 200 weeks equaling 40% loss of the body as a whole.
In 2017, Euclid appealed to the DuPage County Circuit Court, which affirmed the TTD and PPD disability benefits ruling but overturned the award for 167 weeks of maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search” between 2012 and 2015. Claimant appealed.
The IL Appellate Court ruling generally followed the reasoning of the Circuit Court judge, ruling IL WC law mandates an employer must pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.
“The claimant never sought or gained employment following termination from Euclid,” the ruling states. “As such, rehabilitation would be neither mandatory nor appropriate because the claimant did not show an intention to return to work, although he was capable.”
The Appellate Court noted the Circuit Court properly set aside the IL WC Commission's decision to award maintenance benefits, finding the record did not show Claimant participated in a vocational rehabilitation program or self-directed job search over a 3-year period, and confirming the Commission's decision to award permanent partial disability (PPD) benefits as a percentage of the person as a whole. Claimant did not show an intention to return to work, although he was capable, and he did not enroll in a vocational rehabilitation program or engage in a job search after his termination. In short, Claimant did not prove a reduction in his earning capacity after his termination.
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