101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2479

 

Introduced , by Rep. Jay Hoffman

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 305/1.2 new
820 ILCS 305/5  from Ch. 48, par. 138.5
820 ILCS 305/11  from Ch. 48, par. 138.11
820 ILCS 310/1.1 new
820 ILCS 310/5  from Ch. 48, par. 172.40
820 ILCS 310/11  from Ch. 48, par. 172.46

    Amends the Worker's Compensation Act and the Workers' Occupational Diseases Act. Provides that specified Sections limiting recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. Provides that, as to any such injury occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action against any employer or employers. Effective immediately.


LRB101 07913 JLS 52968 b

 

 

A BILL FOR

 

HB2479LRB101 07913 JLS 52968 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Workers' Compensation Act is amended by
5changing Sections 5 and 11 and by adding Section 1.2 as
6follows:
 
7    (820 ILCS 305/1.2 new)
8    Sec. 1.2. Permitted civil actions. Subsection (a) of
9Section 5 and Section 11 do not apply to any injury or death
10sustained by an employee as to which the recovery of
11compensation benefits under this Act would be precluded due to
12the operation of any period of repose or repose provision. As
13to any such injury or death, the employee, the employee's
14heirs, and any person having standing under the law to bring a
15civil action at law, including an action for wrongful death and
16an action pursuant to Section 27-6 of the Probate Act of 1975,
17has the nonwaivable right to bring such an action against any
18employer or employers.
 
19    (820 ILCS 305/5)  (from Ch. 48, par. 138.5)
20    Sec. 5. Damages; minors; third-party liability.
21    (a) Except as provided in Section 1.2, no No common law or
22statutory right to recover damages from the employer, his

 

 

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1insurer, his broker, any service organization that is wholly
2owned by the employer, his insurer or his broker and that
3provides safety service, advice or recommendations for the
4employer or the agents or employees of any of them for injury
5or death sustained by any employee while engaged in the line of
6his duty as such employee, other than the compensation herein
7provided, is available to any employee who is covered by the
8provisions of this Act, to any one wholly or partially
9dependent upon him, the legal representatives of his estate, or
10any one otherwise entitled to recover damages for such injury.
11    However, in any action now pending or hereafter begun to
12enforce a common law or statutory right to recover damages for
13negligently causing the injury or death of any employee it is
14not necessary to allege in the complaint that either the
15employee or the employer or both were not governed by the
16provisions of this Act or of any similar Act in force in this
17or any other State.
18    Any illegally employed minor or his legal representatives
19shall, except as hereinafter provided, have the right within 6
20months after the time of injury or death, or within 6 months
21after the appointment of a legal representative, whichever
22shall be later, to file with the Commission a rejection of his
23right to the benefits under this Act, in which case such
24illegally employed minor or his legal representatives shall
25have the right to pursue his or their common law or statutory
26remedies to recover damages for such injury or death.

 

 

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1    No payment of compensation under this Act shall be made to
2an illegally employed minor, or his legal representatives,
3unless such payment and the waiver of his right to reject the
4benefits of this Act has first been approved by the Commission
5or any member thereof, and if such payment and the waiver of
6his right of rejection has been so approved such payment is a
7bar to a subsequent rejection of the provisions of this Act.
8    (b) Where the injury or death for which compensation is
9payable under this Act was caused under circumstances creating
10a legal liability for damages on the part of some person other
11than his employer to pay damages, then legal proceedings may be
12taken against such other person to recover damages
13notwithstanding such employer's payment of or liability to pay
14compensation under this Act. In such case, however, if the
15action against such other person is brought by the injured
16employee or his personal representative and judgment is
17obtained and paid, or settlement is made with such other
18person, either with or without suit, then from the amount
19received by such employee or personal representative there
20shall be paid to the employer the amount of compensation paid
21or to be paid by him to such employee or personal
22representative including amounts paid or to be paid pursuant to
23paragraph (a) of Section 8 of this Act.
24    Out of any reimbursement received by the employer pursuant
25to this Section the employer shall pay his pro rata share of
26all costs and reasonably necessary expenses in connection with

 

 

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1such third-party claim, action or suit and where the services
2of an attorney at law of the employee or dependents have
3resulted in or substantially contributed to the procurement by
4suit, settlement or otherwise of the proceeds out of which the
5employer is reimbursed, then, in the absence of other
6agreement, the employer shall pay such attorney 25% of the
7gross amount of such reimbursement.
8    If the injured employee or his personal representative
9agrees to receive compensation from the employer or accept from
10the employer any payment on account of such compensation, or to
11institute proceedings to recover the same, the employer may
12have or claim a lien upon any award, judgment or fund out of
13which such employee might be compensated from such third party.
14    In such actions brought by the employee or his personal
15representative, he shall forthwith notify his employer by
16personal service or registered mail, of such fact and of the
17name of the court in which the suit is brought, filing proof
18thereof in the action. The employer may, at any time thereafter
19join in the action upon his motion so that all orders of court
20after hearing and judgment shall be made for his protection. No
21release or settlement of claim for damages by reason of such
22injury or death, and no satisfaction of judgment in such
23proceedings shall be valid without the written consent of both
24employer and employee or his personal representative, except in
25the case of the employers, such consent is not required where
26the employer has been fully indemnified or protected by Court

 

 

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1order.
2    In the event the employee or his personal representative
3fails to institute a proceeding against such third person at
4any time prior to 3 months before such action would be barred,
5the employer may in his own name or in the name of the
6employee, or his personal representative, commence a
7proceeding against such other person for the recovery of
8damages on account of such injury or death to the employee, and
9out of any amount recovered the employer shall pay over to the
10injured employee or his personal representatives all sums
11collected from such other person by judgment or otherwise in
12excess of the amount of such compensation paid or to be paid
13under this Act, including amounts paid or to be paid pursuant
14to paragraph (a) of Section 8 of this Act, and costs,
15attorney's fees and reasonable expenses as may be incurred by
16such employer in making such collection or in enforcing such
17liability.
18(Source: P.A. 98-633, eff. 6-5-14.)
 
19    (820 ILCS 305/11)  (from Ch. 48, par. 138.11)
20    Sec. 11. Measure of responsibility. Except as provided in
21Section 1.2, the The compensation herein provided, together
22with the provisions of this Act, shall be the measure of the
23responsibility of any employer engaged in any of the
24enterprises or businesses enumerated in Section 3 of this Act,
25or of any employer who is not engaged in any such enterprises

 

 

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1or businesses, but who has elected to provide and pay
2compensation for accidental injuries sustained by any employee
3arising out of and in the course of the employment according to
4the provisions of this Act, and whose election to continue
5under this Act, has not been nullified by any action of his
6employees as provided for in this Act.
7    Accidental injuries incurred while participating in
8voluntary recreational programs including but not limited to
9athletic events, parties and picnics do not arise out of and in
10the course of the employment even though the employer pays some
11or all of the cost thereof. This exclusion shall not apply in
12the event that the injured employee was ordered or assigned by
13his employer to participate in the program.
14    Notwithstanding any other defense, accidental injuries
15incurred while the employee is engaged in the active commission
16of and as a proximate result of the active commission of (a) a
17forcible felony, (b) aggravated driving under the influence of
18alcohol, other drug or drugs, or intoxicating compound or
19compounds, or any combination thereof, or (c) reckless homicide
20and for which the employee was convicted do not arise out of
21and in the course of employment if the commission of that
22forcible felony, aggravated driving under the influence, or
23reckless homicide caused an accident resulting in the death or
24severe injury of another person. If an employee is acquitted of
25a forcible felony, aggravated driving under the influence, or
26reckless homicide that caused an accident resulting in the

 

 

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1death or severe injury of another person or if these charges
2are dismissed, there shall be no presumption that the employee
3is eligible for benefits under this Act. No employee shall be
4entitled to additional compensation under Sections 19(k) or
519(l) of this Act or attorney's fees under Section 16 of this
6Act when the employee has been charged with a forcible felony,
7aggravated driving under the influence, or reckless homicide
8that caused an accident resulting in the death or severe injury
9of another person and the employer terminates benefits or
10refuses to pay benefits to the employee until the termination
11of any pending criminal proceedings.
12    Accidental injuries incurred while participating as a
13patient in a drug or alcohol rehabilitation program do not
14arise out of and in the course of employment even though the
15employer pays some or all of the costs thereof.
16    Any injury to or disease or death of an employee arising
17from the administration of a vaccine, including without
18limitation smallpox vaccine, to prepare for, or as a response
19to, a threatened or potential bioterrorist incident to the
20employee as part of a voluntary inoculation program in
21connection with the person's employment or in connection with
22any governmental program or recommendation for the inoculation
23of workers in the employee's occupation, geographical area, or
24other category that includes the employee is deemed to arise
25out of and in the course of the employment for all purposes
26under this Act. This paragraph added by this amendatory Act of

 

 

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1the 93rd General Assembly is declarative of existing law and is
2not a new enactment.
3    No compensation shall be payable if (i) the employee's
4intoxication is the proximate cause of the employee's
5accidental injury or (ii) at the time the employee incurred the
6accidental injury, the employee was so intoxicated that the
7intoxication constituted a departure from the employment.
8Admissible evidence of the concentration of (1) alcohol, (2)
9cannabis as defined in the Cannabis Control Act, (3) a
10controlled substance listed in the Illinois Controlled
11Substances Act, or (4) an intoxicating compound listed in the
12Use of Intoxicating Compounds Act in the employee's blood,
13breath, or urine at the time the employee incurred the
14accidental injury shall be considered in any hearing under this
15Act to determine whether the employee was intoxicated at the
16time the employee incurred the accidental injuries. If at the
17time of the accidental injuries, there was 0.08% or more by
18weight of alcohol in the employee's blood, breath, or urine or
19if there is any evidence of impairment due to the unlawful or
20unauthorized use of (1) cannabis as defined in the Cannabis
21Control Act, (2) a controlled substance listed in the Illinois
22Controlled Substances Act, or (3) an intoxicating compound
23listed in the Use of Intoxicating Compounds Act or if the
24employee refuses to submit to testing of blood, breath, or
25urine, then there shall be a rebuttable presumption that the
26employee was intoxicated and that the intoxication was the

 

 

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1proximate cause of the employee's injury. The employee may
2overcome the rebuttable presumption by the preponderance of the
3admissible evidence that the intoxication was not the sole
4proximate cause or proximate cause of the accidental injuries.
5Percentage by weight of alcohol in the blood shall be based on
6grams of alcohol per 100 milliliters of blood. Percentage by
7weight of alcohol in the breath shall be based upon grams of
8alcohol per 210 liters of breath. Any testing that has not been
9performed by an accredited or certified testing laboratory
10shall not be admissible in any hearing under this Act to
11determine whether the employee was intoxicated at the time the
12employee incurred the accidental injury.
13    All sample collection and testing for alcohol and drugs
14under this Section shall be performed in accordance with rules
15to be adopted by the Commission. These rules shall ensure:
16        (1) compliance with the National Labor Relations Act
17    regarding collective bargaining agreements or regulations
18    promulgated by the United States Department of
19    Transportation;
20        (2) that samples are collected and tested in
21    conformance with national and State legal and regulatory
22    standards for the privacy of the individual being tested,
23    and in a manner reasonably calculated to prevent
24    substitutions or interference with the collection or
25    testing of reliable sample;
26        (3) that split testing procedures are utilized;

 

 

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1        (4) that sample collection is documented, and the
2    documentation procedures include:
3            (A) the labeling of samples in a manner so as to
4        reasonably preclude the probability of erroneous
5        identification of test result; and
6            (B) an opportunity for the employee to provide
7        notification of any information which he or she
8        considers relevant to the test, including
9        identification of currently or recently used
10        prescription or nonprescription drugs and other
11        relevant medical information;
12        (5) that sample collection, storage, and
13    transportation to the place of testing is performed in a
14    manner so as to reasonably preclude the probability of
15    sample contamination or adulteration; and
16        (6) that chemical analyses of blood, urine, breath, or
17    other bodily substance are performed according to
18    nationally scientifically accepted analytical methods and
19    procedures.
20    The changes to this Section made by Public Act 97-18 apply
21only to accidental injuries that occur on or after September 1,
222011.
23(Source: P.A. 97-18, eff. 6-28-11; 97-276, eff. 8-8-11; 97-813,
24eff. 7-13-12.)
 
25    Section 10. The Workers' Occupational Diseases Act is

 

 

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1amended by changing Sections 5 and 11 and by adding Section 1.1
2as follows:
 
3    (820 ILCS 310/1.1 new)
4    Sec. 1.1. Permitted civil actions. Subsection (a) of
5Section 5 and Section 11 do not apply to any injury or death
6resulting from an occupational disease as to which the recovery
7of compensation benefits under this Act would be precluded due
8to the operation of any period of repose or repose provision.
9As to any such occupational disease, the employee, the
10employee's heirs, and any person having standing under the law
11to bring a civil action at law, including an action for
12wrongful death and an action pursuant to Section 27-6 of the
13Probate Act of 1975, has the nonwaivable right to bring such an
14action against any employer or employers.
 
15    (820 ILCS 310/5)  (from Ch. 48, par. 172.40)
16    (Text of Section WITHOUT the changes made by P.A. 89-7,
17which has been held unconstitutional)
18    Sec. 5. Liability inclusive; third-party liability.
19    (a) Except as provided in Section 1.1, there There is no
20common law or statutory right to recover compensation or
21damages from the employer, his insurer, his broker, any service
22organization retained by the employer, his insurer or his
23broker to provide safety service, advice or recommendations for
24the employer or the agents or employees of any of them for or

 

 

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1on account of any injury to health, disease, or death
2therefrom, other than for the compensation herein provided or
3for damages as provided in Section 3 of this Act. This Section
4shall not affect any right to compensation under the "Workers'
5Compensation Act".
6    No compensation is payable under this Act for any condition
7of physical or mental ill-being, disability, disablement, or
8death for which compensation is recoverable on account of
9accidental injury under the "Workers' Compensation Act".
10    (b) Where the disablement or death for which compensation
11is payable under this Act was caused under circumstances
12creating a legal liability for damages on the part of some
13person other than his employer to pay damages, then legal
14proceedings may be taken against such other person to recover
15damages notwithstanding such employer's payment of or
16liability to pay compensation under this Act. In such case,
17however, if the action against such other person is brought by
18the employee with a disability or his personal representative
19and judgment is obtained and paid or settlement is made with
20such other person, either with or without suit, then from the
21amount received by such employee or personal representative
22there shall be paid to the employer the amount of compensation
23paid or to be paid by him to such employee or personal
24representative, including amounts paid or to be paid pursuant
25to paragraph (a) of Section 8 of this Act.
26    Out of any reimbursement received by the employer, pursuant

 

 

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1to this Section the employer shall pay his pro rata share of
2all costs and reasonably necessary expenses in connection with
3such third party claim, action or suit, and where the services
4of an attorney at law of the employee or dependents have
5resulted in or substantially contributed to the procurement by
6suit, settlement or otherwise of the proceeds out of which the
7employer is reimbursed, then, in the absence of other
8agreement, the employer shall pay such attorney 25% of the
9gross amount of such reimbursement.
10    If the employee with a disability or his personal
11representative agrees to receive compensation from the
12employer or accept from the employer any payment on account of
13such compensation, or to institute proceedings to recover the
14same, the employer may have or claim a lien upon any award,
15judgment or fund out of which such employee might be
16compensated from such third party.
17    In such actions brought by the employee or his personal
18representative, he shall forthwith notify his employer by
19personal service or registered mail, of such fact and of the
20name of the court in which the suit is brought, filing proof
21thereof in the action. The employer may, at any time thereafter
22join in the action upon his motion so that all orders of court
23after hearing and judgment shall be made for his protection. No
24release or settlement of claim for damages by reason of such
25disability or death, and no satisfaction of judgment in such
26proceedings, are valid without the written consent of both

 

 

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1employer and employee or his personal representative, except in
2the case of the employers, such consent is not required where
3the employer has been fully indemnified or protected by court
4order.
5    In the event the employee or his personal representative
6fails to institute a proceeding against such third person at
7any time prior to 3 months before such action would be barred
8at law the employer may in his own name, or in the name of the
9employee or his personal representative, commence a proceeding
10against such other person for the recovery of damages on
11account of such disability or death to the employee, and out of
12any amount recovered the employer shall pay over to the injured
13employee or his personal representative all sums collected from
14such other person by judgment or otherwise in excess of the
15amount of such compensation paid or to be paid under this Act,
16including amounts paid or to be paid pursuant to paragraph (a)
17of Section 8 of this Act, and costs, attorney's fees and
18reasonable expenses as may be incurred by such employer in
19making such collection or in enforcing such liability.
20(Source: P.A. 99-143, eff. 7-27-15.)
 
21    (820 ILCS 310/11)  (from Ch. 48, par. 172.46)
22    Sec. 11. Measure of liability. Except as provided in
23Section 1.1, the The compensation herein provided for shall be
24the full, complete and only measure of the liability of the
25employer bound by election under this Act and such employer's

 

 

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1liability for compensation and medical benefits under this Act
2shall be exclusive and in place of any and all other civil
3liability whatsoever, at common law or otherwise, to any
4employee or his legal representative on account of damage,
5disability or death caused or contributed to by any disease
6contracted or sustained in the course of the employment.
7(Source: Laws 1951, p. 1095.)
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.