This week, the Illinois Supreme Court enforced the exclusive remedy provisions of the Illinois Worker’s Compensation Act and the Worker’s Occupational Disease Act (“the Statutes”) for latent diseases, including asbestos-related diseases that fall outside the 25-year limit of the statute of repose. The Court’s 4-2 decision in Folta v. Ferro Engineering, No. 118070 (Ill. Sup. Ct.) means plaintiffs can no longer successfully argue that the long latency period for mesothelioma renders their asbestos claims “non-compensable” as to their employers. Thus, their claims no longer meet that exception of the Statutes’ exclusive remedy bar.
The Illinois Supreme Court has repeatedly held that a plaintiff can escape the bar of the strict exclusivity provision of the Statutes by proving the injury (1) was not accidental, i.e., there was an intent to injure the employee, (2) did not arise from his or her employment, (3) was not received during the course of the employment or (4) was non-compensable under the Act. Collier v. Wagner Castings Co., 408 N.E.2d 198 (Ill. 1980); Fregeau v. Gillespie, 451 N.E.2d 870 (Ill. 1983); Meerbrey v. Marshall Field and Co., 564 N.E.2d 1222 (Ill. 1990). This decision removes the non-compensable argument.
At the trial court, the employer, Ferro Engineering, had successfully argued that the exclusivity provisions of the Statutes barred the plaintiff’s tort suit. However, the appellate court reversed, holding that the plaintiff’s injury was “quite literally not compensable” under the Worker’s Compensation Act because all possibility of recovery was foreclosed under the Statutes.
The Illinois Supreme Court held differently, noting that allowing the claim against Mr. Folta’s employer would prevent the Statutes’ limitations periods from serving their purpose. The Court found that the disease at issue fell within the Statutes as it was “precipitated by occupational exposures to asbestos.” The Court then reviewed provisions of the Statutes that limit employers’ liability and creates a 25-year statute of repose that extinguishes the action after this period of time.
The Court relied upon the plain language of the Statutes and the fact that these provisions have remained unchanged for the last 79 years to find that “it would be a radical departure to suggest that the exclusivity provisions apply only for certain occupational diseases in which the disability manifests within the time limitation.” The Illinois Supreme Court noted that the reversal may be a harsh outcome, since it cuts off the plaintiff’s claim against the employer “through no fault of the employee’s own.” However, the harsh result in this case “is the providence of the legislature.” The Court further stated, “It is not our role to inject compromise but, rather, to interpret the acts as written.”
This is an extremely helpful decision for Illinois employers. Going forward, Plaintiffs’ counsel may still try to argue that the injury either was not accidental or did not arise out of the plaintiff’s employment. Defendants will argue that the Supreme Court’s decision finally and fully forecloses this avenue of recovery.