Kreisman Law Offices Professional Corporation
James Folta was diagnosed with mesothelioma 41 years after he was alleged to have been exposed to asbestos fibers while working for Ferro Engineering.
Because Section 6(c) of the Illinois Workers’ Occupational Diseases Act bars asbestos claims unless they are filed with the workers’ compensation commission within 25 years of the last on-the-job exposure to asbestos, Folta’s only ground for recovering from Ferro was to argue that the exclusive-remedies provisions in the Workers’ Compensation Act and the occupational diseases statute do not apply on the grounds that his injury was “not compensable.”
The Illinois Supreme Court explained in Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990), that the exclusive-remedy section of the compensation statute does not bar a tort case against an employer if “the employee-plaintiff proves: (1) that the injury was not accidental; (2) that the injury did not arise from his or her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the act.” Meerbrey, 139 Ill.2d at 463, citing Collier v. Wagner Castings, 81 Ill.2d 229 (1980).
“With respect to the fourth category,” Justice Mary Jane Theis’ majority opinion for the Illinois Supreme Court said that in Folta v. Ferro Engineering, “this court has had limited opportunity to address what we originally meant in Collier when we used the phrase ‘not compensable’ to carve out a category of injuries for which the exclusive-remedy provision would not be applicable.”
Folta died after suing Ferro for negligence. His widow Ellen Folta replaced him as the plaintiff and added a wrongful-death count to the lawsuit.
A Cook County judge dismissed the case, however, and the Illinois Appellate Court reversed and the Illinois Supreme Court agreed to review the dispute. There were two justices who dissented. In conclusion, the Supreme Court concluded that:
1. “Whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the [compensation] act.”
2. “James’s injury is the type of injury compensable under the act.”
3. “Section 6(c) of the Workers’ Occupational Diseases Act does bar Folta’s right to file an application for compensation.”
4. “This provision acts as a statute of repose and creates an absolute bar on the right to bring a claim.”; and
5. “Folta’s action against Ferro Engineering for wrongful death is barred by the exclusive remedy provisions of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act.”
“We are cognizant of the harsh result in this case. Nevertheless, ultimately, whether a different balance should be struck under the act given the nature of the injury and the current medical knowledge about asbestos exposure is the question more appropriately addressed to the legislature.”
The issue in this case was whether an employee can bring an action against an employer outside of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act when the employee’s injury or disease first manifest after the expiration of time limitations under those acts.
The court stated there was no question that, based on the allegations in the complaint, Folta’s disease is the type of disease intended to fall within the purview of the act. The legislature intended that occupational diseases arising from workplace asbestos exposure are the type of injury contemplated to be within the scope of the act. The Supreme Court also stated that it had never been addressed specifically whether the exclusivity provisions of the two acts would bar a cause of action where there was no possibility of seeking compensation benefits under the act because of certain time limitations on the employers’ liability.
The court recognized that Folta was not at fault for failing to file a claim sooner due to the nature of the disease, but is not a consideration that is relevant to a statute of repose. Although the statute barred Folta’s claim before it had yet accrued, that is the purpose of such a provision. To construe the scope of the exclusive-remedy provisions to allow for a common law action under these circumstances would mean that the statute of repose would cease to serve its intended function, to extinguish the employer’s liability for a work-related injury at some definite time.
Further, this interpretation would directly contradict the plain language of the exclusive-remedy provision which provides that the employer’s liability is “exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.” 820 ILCS 310/11.
Thus, the fact that through no fault of the employee’s own, the right to seek recovery under the acts was extinguished before the claim accrued because of the statute of repose does not mean that the acts have no application or that Folta was not then free to bring a wrongful-death action in the circuit court. Rather, where the injury is the type of work-related injury within the purview of the acts, the employer’s liability is governed exclusively by the provisions of those acts. For the foregoing reasons, the claims brought by Mr. Folta’s family against Ferro Engineering for wrongful-death is barred by the exclusive remedy provisions of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act.
Folta v. Ferro Engineering, 2015 IL 118070 (Nov. 4, 2015).
Kreisman Law Offices has been handling occupational disease cases, mesothelioma cases, worker injury cases, construction site injury cases and catastrophic injury cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Calumet City, Chicago (Marquette Park, Brighton Park, Polish Village, Edgebrook, Sauganash, Albany Park, Irving Park, Roscoe Village, Clybourn Corridor, Wicker Park, Goose Island, Old Town, West Loop, Woodlawn, Avalon Park, Calumet Heights, Pill Hill, East Side, Lake Calumet, Riverdale, Washington Heights), Chicago Ridge, Crestwood, Forest Park and Harvey, Ill.
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