Illinois Supreme Court Renders Admitedly “Harsh” Decision in Workers’ Compensation Exclusive Remedy Case

In Folta v. Ferro Engineering, 2015 IL 118070 the Illinois Supreme Court took up the issue of whether the exclusive remedy provisions of the Illinois Workers’ Compensation Act/Occupational Diseases Act applied to a person exposed to asbestos whose symptoms did not manifest until 40 years after exposure. The court ruled that the exclusive remedy was in fact the IWCA/ODA and that the claimant would be unable to pursue an action at common law for damages for asbestos exposure that ultimately caused death (his widow substituted in after his death). However, the court also ruled that the claimant could not file a claim under the exclusive remedy (the IWCA/ODA) since those acts clearly barred the claimant from filing a claim because the Statute of Limitations/Repose had expired.  The claimant was therefore left without any remedy against his employer. Fair?

The court resolved this case primarily pursuant to its previous ruling in Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (1990).  In that case, the court noted that the IWCA/ODA provides the exclusive means by which an employee can recover against an employer for a work related injury.  However, the Meerbrey court noted that an employee can escape the exclusivity provisions of the act if the employee establishes that the injury “was not compensable under the Act.” If the claimant in this case could get around the exclusive remedy, then he would be free to file a common law claim for damages.  It looked pretty good for our claimant since he clearly could not recover under the act as such a claim was barred by the Statutes of Limitation/Repose.  Therefore, the exclusive remedy provisions do not apply and he can pursue a common law claim for damages against the employer, correct? No, says the Illinois Supreme Court.

In a 4-2 decision (one justice took no part), the court debated what was meant in Meerbrey by an injury that was “not compensable under the Act.” The majority acknowledged that there has never been a case in Illinois that specifically addressed whether the exclusivity provisions would bar a cause of action for common law damages where there is no possibility of seeking compensation under the exclusive remedy (ILWCA/ODA) due to it being time-barred. Ultimately the court held that a claimant does not escape the exclusivity provision espoused in Meerbrey if it is of the type that could have been filed under the ILWCA/ODA. It did not matter the court that it was impossible to file such a claim at the time the exposure was discovered. The court stated “we are cognizant of the harsh result in this case.” The court did note that it was only barring a claim against the employer and that the claimant was still free to pursue damages against third parties such as the manufacturers of asbestos related products.

This blogger disagrees with the majority opinion. An injured worker should be able to pursue a claim against the employer for common law damages in such a situation.  Justice Freeman opined in his dissent that the claimant should be able to pursue a common law claim pursuant to Meerbrey because he, quite literally, had a claim that was “not compensable under the act.”  Through no fault of his own, the claimant in this case never had an opportunity to pursue any action against his employer under the ILWCA/ODA due to the 40 year latency of his symptoms.  Justice Freeman noted that the Majority interpretation of Meerbrey runs directly counter to the purpose of the ILWCA/ODA which is intended to be a humane law of remedial nature whose fundamental purpose is to provide employees and their dependents prompt, sure and definite compensation.