2-8-25; John Campbell JD on Shocking New IL Law/Ruling; Tim O'Gorman JD on Important TPD Ruling and more
/Synopsis: Is it Christmas Again Already? The Illinois Supreme Court drops a giant gift into the stockings of the Plaintiff’s bar, allowing resurrection of a host of IL occupational exposure claims… against Illinois employers! Wait… What? It appears the exclusive remedy provision is now only exclusive until the IL plaintiff’s bar starts running out of people to sue.
Editor’s comment: Let’s take a deeper look at Martin v. Goodrich Corp., 2025 IL 13509.
Facts and Ruling: Rodney Martin was an employee of Goodrich Corp. allegedly working for a time with vinyl chloride monomer (VCM), a substance believed to cause angiosarcoma of the liver. Rodney stopped working at Goodrich in 1974 but was not diagnosed with the disease until 2019. Martin died in year 2020. In this case, after 1976, under section 1(f), Rodney or his family no longer had the ability to seek compensation under the IL Occupational Disease Act or ODA for his employment-related exposure. To our understanding, vinyl chloride is also contained in second-hand smoke.
His wife Candice filed a wrongful death case in 2021, asserting there was a relatively new exception to the exclusivity provisions of the IL Occupational Disease Act (ODA).
Remember, the exclusivity provisions of the IL ODA contain an employee’s sole remedy for work-related occupational disease through the IL Workers’ Compensation system and used to bar any civil negligence action against employers. The ODA has its own limitations under 1(f) and 6(c). If a disease manifests after the statutory time-frame, the claim for benefits under the IL OccDisease Act was supposedly barred.
However, the Illinois legislature amended the ODA in 2019 by adding section 1.1. This was in response to the IL Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 where there was strict adherence to the the 25-year limitation provision under section 6(c). This strict application led to a time-bar for the employee who developed mesothelioma from asbestos exposure over 40 years after departing the workplace. Thereafter, Section 1.1 of the ODA was enacted to allow employees (or heirs) to litigate against their current and former employers in circuit court if their claim was time barred under the ODA.
The first question asked the high court whether the period referenced in section 1(f) of the ODA is a “period of repose or repose provision” for purposes of the exception provided in section 1.1. The court found that by its plain language, section 1(f) is a statute of repose. Further the court found the legislative intent was to ensure that employees like the one in Folta were able to seek compensation even if they did not discover their alleged injury within the time limits provided under the ODA.
As of 2019, the new Section 1.1 of the IL Workers’ Occupational Diseases Act states the exclusivity provisions of the Act “do not apply to any injury or death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such occupational disease, the employee, the employee's heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers.” 820 ILCS 310/1.1 (West 2022).”
Our highest Court explained “under the plain language of this statute, when a statute of repose would operate to bar an employee from seeking compensation under the Workers’ Occupational Diseases Act based on an occupational disease, as it did in Folta, the employee would be allowed to seek compensation by filing a civil action.”
The High Court also found “application of section 1.1 must be prospective through section 4 of the Statute on Statutes” and further explained that “Applying section 1.1 prospectively means to apply it to cases where an employee's claims under the Workers’ Occupational Diseases Act were barred due to the discovery of an illness after section 1.1 was enacted.
The Court further found the section 1.1 exception did not run afoul of the Illinois Constitution’s guarantee of due process since the Plaintiff’s case was filed after the Exception became effective, it did not take away any existing legal rights or reopen claims that were previously blocked by the Act. This ruling allows Candice Martin to pursue civil action for the death of her husband Rodney Martin from angiosarcoma of the liver that allegedly developed from him being exposed to dangerous material(s) on his jobsite more than 40 years ago.
Please also note Plaintiff-friendly Illinois courts recently received another new law that allows punitive damages in claims involving wrongful death. You can be sure all Plaintiffs in claims such as this will allege punitive damages to scare higher settlements out of Illinois employers.
This new law in Martin v. Goodrich and the ruling will no doubt impact and “create” claims for asbestosis, angiosarcoma and a host of other diseases which often manifest long after exposures may occur. The plaintiff’s bar will line up to resurrect claims against Illinois employers, alleging exposures from 30 and 40 years earlier, as soon as symptoms from a disease manifest for the first time. It is our reasoned impression that many of these claims will be incredibly difficult to both prosecute and defend, as machinery, equipment, data, records, human resources, managers and co-workers will be long gone. The resurrection of insurance claims under policies long-thought dormant is another wildly challenging issue faced by IL employers and insurance carriers alike.
Even if we assume it possible for a disease to arise from a workplace exposure decades after employment ended, we reckon the proper avenue to “correct” this statute of limitations/statute of repose concern would have been simply to extend the time frame for filing such claims under the IL Occupational Disease Act itself. Why shove the exclusive remedy aside entirely and create a new civil cause of action that literally begins 30-plus years after the last act of exposure? Are we soon to see claims filed for melanoma by a 60 year old man or woman who had a few sun burns while working as a lifeguard at the age of 17, who may or may not have been given proper sun screen or protection? Hold on tight, as the plaintiff’s bar sharpens their pens and gets creative with this one.
This article was researched and written by: John P. Campbell | A Founder and Managing Partner of Keefe, Campbell, Biery & Associates.
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Synopsis: KCB&A Veteran Defense Attorney Tim O’Gorman provides thoughts on the Illinois Appellate Court’s decision to affirm the IL WC Commission’s denial of TPD or temporary disability benefits finding Petitioner’s post-injury average weekly wage on which TPD benefits would have been calculated was too “speculative.”
Editor’s comment: In Menefee v. IWCC, 2025 IL App (4th) 240375WC-U, this latest opinion appears to follow a pure common-sense logic that you can’t make something out of nothing when TPD benefits were denied to a claimant that submitted so little evidence, the Arbitrator nicely described it as “scant.” Generally, in Illinois, TPD benefits are owed when a claimant obtains new employment, either with their employer or with another, that is within the restrictions suggested by an expert in the case (either a treating doctor or Section 12 examiner). Benefits are calculated with the formula 2/3 x (A-B) where A represents the pre-injury average weekly wage and B represents the post-injury average weekly wage.
What can our hearing officers do if B doesn’t exist? In Menefee v. IWCC, Petitioner was awarded medical and TTD benefits for a shoulder injury that was surgically repaired twice. Petitioner was, at one point in the claim, released to work with restrictions by his surgeon and Respondent was able to accommodate. For reasons not described in the decision, Petitioner was eventually terminated from this light duty position whereupon TTD benefits were issued.
Petitioner was issued (and awarded) TTD benefits until August 31, 2021 when Petitioner began working with a second employer. Petitioner testified he earned $5,200.00 from his post-injury employer between August 31, 2021 and February 13, 2022. That appears to be the last bit of evidence that suggests a calculation could be made. Petitioner testified he worked as a “fill-in” employee, not as a “regular” employee. Additionally, Petitioner testified he would “sometimes go 2 or 3 weeks and then [he] went a few months with nothing.”
Petitioner also testified he owned a business however that business did not supplement his lost income from Respondent. Petitioner was also captured on surveillance video working and operating a dump truck, apparently for a friend’s company. Petitioner explained he worked at that job for three hours before leaving for the day due to an increase in pain.
In the decision, the Arbitrator stated specifically “While an award of TPD might be available to Petitioner from August 31, 2021, through the time of arbitration, the amount of such benefits is too speculative to discern based upon the scant evidence provided about Petitioner’s current earnings.” Petitioner summarized his earning as $250 a week (attempting to average how much he made per week) however the IL WC Commission and Appellate Court, Workers’ Comp Division found this testimony to be contradictory to Petitioner’s prior testimony that he would go weeks or possibly months without working for his second employer.
Additionally, Petitioner did not submit any evidence of wages for his supposed owned business and the work for his friend involving operating a dump truck. Without evidence, even evidence in the form of consistent testimony about how much Petitioner was making, benefits are impossible to calculate and award. Without any coherent post-injury wages to use as a basis to calculate Petitioner’s TPD benefit, Petitioner was denied his request at trial.
We expect this opinion to reinforce our routine expectation that a claimant will testify to what they thought they were making at the time a case is tried. In some cases, this testimony may be taken at face value and be used as the basis of an award of TPD and/or wage differential benefits. The IL WC Commission and Appellate Court, WC Division in Menefee asks claimants to, at least, provide one of two corroborating pieces of evidence before TPD/wage differential benefits are awarded:
A coherent weekly or monthly summary of approximate hours worked at a rate of pay or;
Documentary evidence of wages to support a claimant’s testimony.
To clarify these situations, subpoena practice should be a necessary step in defending, reserving and understanding these types of claims. Should a post-injury employer comply with a subpoena, our ability to accurately predict potential trial exposure can vastly assist our decision-making processes and help answer questions about the appropriate next steps in handling a claim. Should a post-injury employer refuse to comply with a subpoena and if a claimant doesn’t provide this evidence himself, the Appellate Court has given a framework by which to argue unsubstantiated TPD/wage differential benefits should be denied.
This article was researched and written by: Timothy O’Gorman | A Veteran Defense Lawyer at Keefe, Campbell, Biery & Associates.
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