Legislation Expanding Employees Right to Sue Safety Consultants Awaits Vote in Springfield

May 2014

By Francis M. Brady

In 2012, the Illinois Appellate Court ruled that a worker cannot sue a consultant (styled "service organizations" by the Court to conform with language of the Illinois Workers' Compensation Act) based on negligent safety advice or service the consultant provides to the worker's employer. Mockbee v. Humphrey Manlift Co., Inc., et al., 973 N.E. 2d 376, 362 Ill. Dec. 276 (May 18, 2012).

Now, in a vote of 35-19, the Illinois Senate has passed a measure aimed at overruling the Appellate Court. Senate Bill 3287 seeks to amend the Illinois Workers' Compensation Act so that only service organizations "wholly owned" by the employer, its insurer or broker, are, like the employer itself, immunized from civil suit under the exclusive remedy provisions of the Illinois Workers' Compensation Act.

Opponents of Senate Bill 3287, including numerous business and insurance associations, argue that "erosion of the exclusive remedy provision will create more litigation and higher costs for employers, both public and private." The economic impact will be most keenly felt by small employers that typically cannot afford to employ full-time safety professionals and must hire outside consultants. Obviously, these outside consultants will have to pay more for insurance costs which will be passed along to small employers. There may be fewer inspections done and the end result will be that the workplace will be "exposing more workers to injury."

Proponents emphasize that by permitting lawsuits against the service companies, the legislation affords employers the opportunity to recover pursuant to Section 5(b) liens. Further, the specter of civil exposure will help to ensure competent safety advice.

After its Senate passage, SB 3287 was taken up by the House where it was voted out of the Judiciary Committee on May 7, 2014. The legislation is currently on the floor of the House where it awaits a third reading, debate and a vote. The measure could be called for a vote at any time.

This legislation was a topic of conversation at the Firm's recent Spring Seminar. We hope that the industry takes note of how decisions rendered even by the higher reviewing courts can be compromised by legislative action. The outlook of the people we elect to serve in government, their backgrounds, and values, do make a difference. Voting for representatives, and keeping in contact with them thereafter, is critical to a process like Illinois Workers' Compensation as a statutory remedy.

If you would like to identify your elected representative, please visit the link below for more information.

http://www.elections.illinois.gov/districtlocator/districtofficialsearchbyaddress.aspx