5-27-2019; Now What Do We Do With SB 1596--Are Latent Injuries Truly in the Mix?; Brad Smith, J.D. on Your Legal Liability for Open and Obvious Conditions; Happy Memorial Day to All and More

Synopsis: OK, IL WC Bar—Now What Do We Do With SB 1596?? Are “Latent Injuries” Truly In The Mix?

Editor’s comment: As I reported a week ago, ITLA got its wish and obtained the enactment of SB 1596 that is nutty, confusing and perplexing legislation which, for the first time, allows IL workers to sue their employers in Circuit Court for negligently causing whatever the heck “latent injuries” might be. As you will read, I don’t agree the term “latent injuries” should actually be used but seek my readers and industry comment about that irritating and somewhat “crazy-making” term.

The pertinent part is in the IL WC Act now. This new law states:

Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee 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 injury or death, 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.

If you read the law, there are two issues of enormous importance. First we are left to figure out what a “Statute of Repose” might be in the IL WC Act because those injuries/deaths are now the subject of civil litigation because Sections 5 and 11 may no longer apply to them. I do know Section 5 is the “exclusive remedy” limit on any injury/death occurring at work. So, if you have a “statute of repose” that covers an injury/death, the worker can either bring either a WC claim, a civil claim or both!

What is a Statute of Repose?

A statute of repose is basically a cut-off date whether a law suit is filed or not. Such legislation is hated by Claimant attorneys because it can cut off a Plaintiff’s right to recovery if they had something building inside them that doesn’t come out for months, years or decades.

Section 6 of the IL WC Act has a single statute of repose that says (in pertinent part):

In any case of injury caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos, the right to file such application shall be barred.

If an accidental injury caused by exposure to radiological material or equipment or asbestos results in death within 25 years after the last day that the employee was so exposed application for compensation for death may be filed with the Commission within 3 years after the date of death, where no compensation has been paid, or within 2 years after the date of the last payment of compensation where any has been paid, whichever shall be later, but not thereafter.

After lots and lots of research, this seems fairly clear to me—these is a limitation of 25 years on claims of exposure to radiological activity or asbestos. Ergo, claims involving radiological and asbestos exposures are now the subject of SB 1596 and can potentially cause the right to civil litigation. I have seen mention of “beryllium” as being part of this new legislative concept. You may note beryllium doesn’t appear at all in the IL WC Act. It is a rare mineral that may or may not be radioactive. I assume you and all my readers don’t need to concern yourselves with non-radioactive beryllium but, I feel if you have people working with radioactive beryllium (or any other radioactive substance), the new law may apply to them.

Where/How Did “Latent Injuries” Come Into the Mix?

Again, I have done exhaustive research. I don’t know and would ask you and/or anyone you know why legal, insurance and other risk managers are now mentioning and voicing concerns about “latent injuries.” There is no statute of repose in the IL WC Act for “latent injuries,” just exposure to radiological materials and asbestos—the IL WC Act is very clear about it. If I am wrong about this—please, please tell me why! I will admit any mistake on my part to my many readers but I clearly think I am right—latent injuries is a very broad term that shouldn’t be used in the context of SB 1596.

In at least one source, the PR folks at ITLA are telling everyone who will listen that “latent injuries” are defined as medical conditions resulting from workplace exposures to things like asbestos and beryllium. At least one industry publication from a national insurance brokerage indicated “latent injuries” include, and I quote (by cutting and pasting):

lead poisoning, black lung (pneumoconiosis), mesothelioma and asbestosis, silicosis, skin cancer, lung cancer, occupational asthma, byssinosis, carpal tunnel syndrome, repetitive strain injuries, hearing loss, and traumatic brain injury.

First, I have no idea how all those claims might fall under SB 1596 that appears limited to radiological materials and asbestos, per the terms (new and old) of the IL WC Act. Second, if that quote is accurate, thousands of pending and potential IL workers’ comp claims could possibly be brought by wealthy Plaintiff lawyers in Circuit Court under the aegis of this new law and the IL WC Commission may be suddenly otiose and might be unworthy of continued funding at some point.

At least one other industry publication said this new legislation “expands the coverage of the Workers’ Compensation Act.” I want to make clear my view that statement is simply and unequivocally wrong—SB 1596 does nothing, no change at all, to the implementation of the IL WC Act. SB 1596 creates a new civil action unfettered by the “exclusive remedy” concept but has little to do with the other terms and benefits of the IL WC Act.

What Does a Humble WC Lawyer Do When Faced With An IL WC Claim That Might Involve Exposure to Asbestos or Radiological Materials?

From the perspective of the Plaintiff/Petitioner lawyer handling an IL WC claim that might involve the exposures above—I am fairly sure they would need to at least let your clients consider the possibility of either a simple WC claim or a much more complex and expensive civil claim—if you don’t have that capability, refer them to someone who does and keep a record of your referral. You may want to insure your client knows of the risks/rewards.

From the perspective of Defense lawyers across the State, you have to tell your clients precisely what happened in this nutty State. If you are contacted by and/or receive defense of a claim for either radiological or asbestos exposure (or both), you need to let them know there is a non-waivable right for the worker to bring both a WC claim and/or a civil claim. The WC claim would/should be covered by the WC coverage. An employer should not be able to block the civil claim by having WC benefits offered and accepted by the injured worker or his family—that is what I feel “non-waivable” means. I don’t feel “non-waivable” means you can’t settle the claim with a release in exchange for payment.

To settle, the employer should have to get both approved WC settlement contracts and a general release of the civil claim. I hope.

I would appreciate anyone’s thoughts and comments on this article. Please feel free to post them on our award winning blog.

Synopsis: The Federal Seventh Circuit Appellate Court Rejects Premises Liability Claim for Open and Obvious Condition Against Menards.  Analysis by KCB&A’s top GL ace, Bradley J. Smith, J.D.

Editor's Comment: In McCarty v. Menards, Inc., a business invitee sued Menards for tripping over a product display sign. During the proceedings in the federal District Court, the federal judge entered summary judgment for Menards and threw out the lawsuit. Then the Seventh Circuit Court of Appeals in an opinion written by Justice St. Eve affirmed that dismissal. She held that the sign was open and obvious and that the business invitee should have seen and appreciated it.

On February 13, 2017, the business invitee (accompanied by a colleague) went to the Menard’s store in Antioch, Illinois, to purchase materials for his company. He was purchasing sheets of plywood. The display sign at issue was knee high with protruding wooden legs.

The business invitee was looking around the Menards store for boards for a period of time. Then he moved a few boards from a middle stack. When he did that, he tripped over a piece of wood that was part of the display sign in front of the right-hand pile. The photograph submitted to the Appellate Court demonstrated a display sign protruding out a significant distance from the stacks of wood. It was a relatively large and certainly a noticeable sign.

In Illinois, landowners owe business invitees a duty of care to keep their premises reasonably safe. Illinois courts generally consider four factors when deciding if duty of care exits:

(1) the reasonable foreseeability of the harm;

(2) the likelihood of the injury;

(3) the magnitude of the burden of guarding against the injury; and

(4) the consequences of placing that burden on the premise’s owner.

The “open and obvious doctrine” implicates the first two factors of the duty of care analysis on this retailer.

When the open and obvious doctrine applies because the condition is open and obvious, the risk of harm is considered slight. Essentially, people are expected to appreciate and avoid open and obvious conditions.

Federal Judge St. Eve concluded in her opinion that:

“A reasonable person in [the business invitee’s] position, who saw that there were signs, chose the stack he wanted by looking at the signs, walked right up to the signs, was working within a few feet of the protruding sign, and either repeatedly stepped over it or turned toward it, would have notices the large sign and legs as a tripping hazard.”

Since there were no material disputes concerning the condition’s physical nature, then the trial court and subsequently the appellate court were able to find the condition an open and obvious one as a matter of law.

This opinion is a valuable interpretation of premises law for retail and restaurant business owners. It applies the duty analysis in a reasonable and fair manner. This allows businesses to have some predictability as to what they are responsible for. Sometimes people do need to observe their surroundings and use common sense to avoid open and obvious conditions. It is not always someone else’s fault.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.