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The clock is ticking for Illinois Gov. J.B. Pritzker to sign legislation that some business owners said could open up companies in Illinois to worker injury lawsuits that are decades old and not covered by liability insurance.
Senate Bill 1596 was pushed through the General Assembly in less than a month and is now nearing its 60-day mark, where Pritzker must take action on it.
If the governor signs the legislation, it would allow an aggrieved party to go after a business for civil damages after the 25-year timely filing rule for workers' compensation claims expires.
The plaintiff would be able to sue an employer for a “latent injury” decades after the exposure took place. if signed, the law could face legal challenges.
Injuries that fit that description include cancer from asbestos exposure, lower back pain, acoustic shock and repetitive trauma claims.
The bill would also allow the employee’s heirs to file the claim in civil court.
“To open up the workers compensation structure and make these type of disputes subject to the tort laws of the state of Illinois is a trial lawyers full-employment act,” state Rep. Margo McDermed, R-Mokena, said of the bill in March.
House sponsor Jay Hoffman, D-Swansea, said the bill would allow people given a death sentence of mesothelioma, a lung cancer often caused by exposure to asbestos, a way to be compensated if their symptoms don’t show up until it’s too late.
“It provides equity. It provides justice to people who contract these terrible issues at no fault of their own,” he said.
The change represents a shift from the agreement between Illinois’ workers and employers in which employers would accept “strict responsibility” for remedy in workers' compensation cases in exchange for knowing that workers compensation claims would not be allowed to introduce the cases to the civil courts.
“This proposal threatens that system significantly,” said Sen. Jason Barickman, R-Bloomington when the bill was called in March.
The change could encourage insurance companies to drop latent injury coverage moving forward or offer it at rates that would be significantly higher considering the added exposure to a multi-million dollar civil suit from decades in the past, said Mark Selvaggio, president of Selvaggio Steel.
“Most workers' compensation insurance companies will probably double or triple their rates on every single company in order to get rid of liabilities in Illinois and leave the state,” he said. “This law, if allowed to proceed, will put insurance companies in a position where they will never be able to close any case they ever have because they’ll never know if there’s going to be a complication.”
Selvaggio, who has previous involvement in a company offering workers' compensation insurance, said his costs have fallen in recent years, but his insurance agent warned him that the costs will be adjusted should the law be enacted.
Springfield-based general contractor John Goetz said workers' compensation is the biggest expenditure that his company has, even though he says his costs have dropped in recent years. He said the change is likely so send his rates higher because an insurers would have to account for the additional exposure to lawsuits, if they cover it at all.
“They don’t know how to calculate their risk when they could be faces with claims from forty or fifty years ago,” he said.
Should the bill become law, businesses with workers facing any exposure to workers' compensation-related lawsuits should be ready for a potential suit, said Bradley J. Smith, partner at Keefe, Campbell, Biery and Associates.
"This new law, if used as its advocates intend it to be used, will revive claims in the civil suit arena that were already barred by the Worker’s Compensation Act and the corresponding Illinois Occupational Disease Act’s statute of repose," he said. "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."
The issue stems from an Illinois Supreme Court decision that disallowed a plaintiff whose husband showed signs of mesothelioma after the 25-year time limit from exposure had passed.
Smith said he was confident that the law would face legal challenges if it’s enacted as is.
John Cooney, partner at Cooney and Conway, disputed the thought that insurance companies would deny coverage. He said insurers "would live up to their obligations" in the same manner companies have in Pennsylvania where a similar case was decided by their supreme court but ruled that the plaintiff was able to sue in civil court.
A recent study from the Workers Compensation Research Institute found workers' compensation costs in Illinois are still higher than most states, largely due to litigation.