Criticism, often biting, is following the signing into law of what is being described as a deeply flawed change that will allow workers to sue outside the workers' compensation system.
SB 1596, signed into law by Gov. JB Pritzker, will allow workers, whose claims would have otherwise been precluded by the state's workers' compensation system, to sue in civil courts.
It removes the 25- year statute of limitations on work-related injuries, removes the principle of exclusive remedy via workers' compensation, and expands the concept of latent injury under the system.
Eugene Keefe, a partner at Keefe, Campbell, Biery and Associates, in a recent post, criticized the passing of the bill.
Eugene Keefe Keefe, Campbell, Biery and Associates
"Now we have to wait and see what our wacky Illinois courts do with this new and shocking concept," said Keefe, one of the state's most experienced workers' compsensation defense laywers.
"Please also remember the terms in this legislation like 'latent injury' and 'statutes of repose' aren’t truly defined other than in the minds of the plaintiff bar," Keefe said, adding that "if the judiciary blindly accepts this legislation, without requiring clarity, they are going a very long way toward appearing to me to be the minions of their campaign benefactors."
SB 1596 is supposed to be legislation that helps workers who develop what are called “latent illnesses or injuries” after coming in contact with asbestos or other toxic, but supposedly hidden substances in the workplace.
In a statement following the signing of the bill, Gov. Pritzker said it will allow workers "who have been exposed to toxic substances to pursue justice in Illinois courts."
But Keefe and his colleague, Bradley Smith, said the legislation is likely to face constitutional challenges in court.
"Legal scholars feel this is impermissible special legislation that will eliminate strict liability of employers for only these injuries under the long-established work comp program and increase the threshold of proof required by a special class of injured workers in order to obtain recove," Keefe said.
Smith, an associate at Keefe, Campbell, Biery, warned the new law will revive civil suit claims "if used as its advocates intend it to be used."
The civil suits are barred by the Worker’s Compensation Act and the corresponding Illinois Occupational Disease Act’s statute of repose, Smith added.
"Employers should be ready to attack those potential claims aggressively from the onset. This is because the constitutional viability of applying this law retroactively is questionable at best," Smith said.
"Please note this law is being jammed down the throats of the (Illinois) State Chamber and other great advocates on the management side of (Illinois) business with no negotiations or counter-balance in costs being offered by (Illinois) labor.
"This is not an 'agreed bill,' which is the genteel way such things used to get done with give and take from both sides of the aisle. In the People’s Republic of Illinois, I can sadly forecast more gloomy news for our employers and business leaders, as the Plaintiff bar seeks to cash in," Smith said.
The bill attempts to do an end-run around a 2015 Illinois Supreme Court ruling. In Folta v Ferro Engineering, the court barred the plaintiff from suing in civil court and upheld the time bar on workers' compensation claims.
Certain asbestos and other occupational disease and injury claims are taken out of the workers' compensation system. It will allow certain individuals to sue in civil court.