Heyl Royster

 


Heyl Royster

 

Latent Diseases Which Give Rise to Claims Brought Under the Workers’ Occupational Diseases Act

By: Heidi Agustsson - Rockford Office

The Workers’ Occupational Diseases Act provides a remedy for an employee with a slowly developing disease or latent disease which arises out of and in the course of employment, or which has become aggravated and rendered disabling as a result of exposure of the employment. 820 ILCS 310/1(d). Common diseases alleged to have arisen out of employment include black lung disease (CWP), cancer from benzene exposure, lung cancer, asbestosis, mesothelioma, silicosis, tuberculosis, and hepatitis. The focus concerning these types of claims is on the “exposure” rather than an “accident.” So what constitutes an exposure? The Act defines it as when an employee for “…any length of time however short… is employed in an occupation or process in which the hazard of the disease exists…” and does not require the employee to provide proof of the amount, time or duration of the exposure. Id.

What Proof Is Needed?

The petitioner only has to demonstrate employment in an occupation in which the hazard exists. Layperson testimony can be used and often times, a co-worker or spouse testifies that the petitioner was covered in dust or other chemicals when he arrived home. This personal observation of the petitioner, as well as testimony concerning the labels on a chemical or materials used at the place of employment, can be sufficient to establish exposure. See Service Adhesive Co. v. Industrial Comm’n, 226 Ill. App. 3d 356, 589 N.E.2d 766 (1st Dist. 1992). (Claimant filed an application for adjustment of Claim under the Workers’ Occupational Diseases Act after developing leukemia which was found to be causally connected to his occupational exposure to benzene.)

The petitioner must also prove a causal connection between the disability/illness and the workplace exposure. It is not enough to argue the mere possibility that the petitioner may have contracted a disease in the course of his employment. Therefore, the causal connection should be proven with a medical expert’s opinion that the disease at issue could or might have been caused by the workplace exposure. Mason & Dixon Lines, Inc. v. Industrial Comm’n, 99 Ill. 2d 174, 457 N.E.2d 1222 (1983).

What Damages Are Recoverable?

One must keep in mind that an occupational disease is compensable if it is a causative factor in the petitioner’s disability. This is true even if there are other non-occupational factors which may contribute to the condition. For example, the petitioner will recover for the full extent of his disability based on a lung condition, such as pneumoconiosis, despite the fact he also smoked cigarettes for a number of years. The Workers’ Occupational Diseases Act limits a petitioner’s recovery for loss of earning capacity to compensation for a wage differential pursuant to section 8(d)1 or to a percentage of a person as a whole pursuant to section 8(d)2 of the Illinois Workers’ Compensation Act, which is incorporated into the Workers’ Occupational Diseases Act. If the petitioner has a pre-existing condition that is only temporarily aggravated by the workplace exposure, he is still entitled to a disability award, but only for the time the aggravation is present. However, if that aggravation causes his condition to permanently worsen, then he would be entitled to a permanent and total disability award.

What Notice Must Be Given?

Because the focus is on the exposure rather than an accident, notice of disablement from the disease is only required to be given to the respondent “as soon as practicable.” As such, there is no definite time set or prescribed form of notice to be given. Courts have held that the notice can be given orally or in writing. Even if it can be argued that the notice was untimely, the burden rests on the respondent to show it was substantially prejudiced from the delay. For example, a respondent may argue that it was prejudiced because it was unable to conduct an on-site inspection due to a delay in notice. However, even once a delay is demonstrated, the Illinois Workers’ Compensation Commission still has the discretion to allow the claim.

With that being said, petitioners who seek compensation under the Illinois Workers’ Occupational Diseases Act must file a claim within three (3) years from the date of disablement or death. However, if compensation has been paid, the disability claim must be filed within two (2) years from the date of the last payment. Death claims must be filed within three (3) years from the date of the last payment.

Exception To The Rule - Asbestos Exposure

Keep in mind that the exclusivity provided for by section 5(a) of the Illinois Workers’ Compensation Act does not apply when the latent injury is alleged to be caused by asbestos exposure. In 2019, Illinois adopted legislation that created an exception to the workers’ compensation exclusive remedy for latent injury cases. This legislation amended the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to sue their employer in civil tort actions, subjecting the Illinois employers to unlimited liability in tort. In effect it eliminated Illinois’ 25 year statute of repose prohibiting civil actions filed 25 years or more after a worker’s alleged exposure.

This 2019 legislation was recently challenged in a lawsuit filed in Madison County, Illinois in October of 2019. The defendant employer in that case moved to dismiss plaintiff’s lawsuit arguing the case was barred by the Illinois Workers’ Compensation Act. Plaintiff worked as a carpenter for the defendant from 1969 through 1973 and had been diagnosed with mesothelioma in the fall of 2019. In arguing it’s Motion to Dismiss, the defendant claimed that the Workers’ Compensation Act and Workers’ Occupational Diseases Act were unconstitutionally amended by 820 ILCS 305/1.2 and 820 ILCS 310/1.1. Likewise, it argued the Construction Statute of Repose was unconstitutionally amended by 735 ILCS 5/13- 214(f). The trial judge denied the defendant’s motion without further reasoning in June of 2020 and denied the defendant’s motion for an immediate appeal. We continue to monitor this case (Patton v. A.W. Chesterton, Madison Co., Case No. 2019 L 001460 to see if the defendant employer will take this matter to trial and further challenge the current legislation. If the current legislation continues to stand, when latent injuries in the workplace are caused by asbestos exposures, an employer cannot rely on workers’ compensation exclusivity protections and may be facing civil liability decades down the road.