Work Comp Law is “Exclusive Remedy” for Asbestos Injuries

The Illinois Supreme Court recently resolved an outstanding question under Illinois law of whether the Illinois Workers Compensation Statute is the exclusive remedy against an employer by a former employee claiming damages for asbestos related injuries, including long developing cancers. In Folta v. Ferro Engineering, 2015 IL 118070 (Nov. 4, 2015), in a 4 to 2 opinion by Justice Theis, the Court specifically held that the Illinois Workers’ Compensation Act (820 ILCS 305/1) prohibits an employee from bringing an action for damages for an asbestos related cancer in circuit court against the employer, even if the employee’s injury or disease first manifests after the running of the time limitations provided under the Act.

James Folta was employed as a shipping clerk and product tester for Ferro Engineering from 1966 to 1970, where he was exposed to asbestos containing products. In May 2011, James Folta was diagnosed with mesothelioma, a cancer primarily associated with asbestos exposure. One month later he filed a civil action in Cook County Circuit Court against 15 defendants, including his former employer, Ferro Engineering, to recover damages. Folta sought relief against Ferro Engineering under several theories including negligence.

Ferro Engineering filed a motion to dismiss arguing that James Folta’s claims were barred by the “exclusive remedy” provisions of the Illinois Workers Compensation Act and the Illinois Workers’ Occupational Disease Act. James Folta’s attorneys opposed the motion arguing that his claims were not compensable under the Acts since his symptoms did not manifest until more than 40 years after his last exposure to asbestos, and any potential asbestos-related compensation claim would be time barred before he became aware of his injury because of the 25 year limitation provision in section 6(c) of the Workers Occupational Diseases Act (820 ILCS 310/6(c)). James Folta died and his wife was substituted as party plaintiff. The Circuit Court granted the motion to dismiss. The First District Appellate Court reversed in a 2014 decision, and then the Illinois Supreme Court allowed Ferro Engineering’s petition for leave to appeal.

In its opinion, the Illinois Supreme Court examined the purposes of the Workers’ Compensation Act, noting that it established a new framework for recovery to replace the common law rights and liabilities of employees and employers, and provided that the statutory remedies “shall serve as the employee’s exclusive remedy if he sustains a compensable injury.” The Court then noted that Illinois case law had developed allowing an employee to file a civil lawsuit to escape the provisions of the Act if the employee establishes that the injury: (1) was not accidental, (2) did not arise from his employment, (3) was not received during the course of employment, or (4) was not compensable under the act. The latter exception was argued by the claimant during the appeal.

The Illinois Supreme Court examined the prior cases on whether any injury was “compensable” under the Act and determined that the exceptions did not apply, even against the argument that the time limits imposed by the Act would mean the claimant’s Workers’ Compensation claim would be denied. The Court recognized the harshness of this result in denying the widow’s claims. However, the Court noted: “Nevertheless, ultimately, whether a different balance should be struck under the acts given the nature of the injury and the current medical knowledge about asbestos exposure is a question more appropriately addressed to the legislature.” The Court declined to follow a recent Pennsylvania Supreme Court opinion, Toohey v. AK SteelCorp., 81 A.3d 851 (Pa. 2013), on this same issue and also rejected the claimant’s equal protection constitutional argument.

Justice Freeman in a dissent/argued that the Court should interpret the Acts to avoid the harshness of the result and give workers the rights to benefits under all circumstances.

It can be anticipated that attempts will be made in the Illinois legislature to introduce bills to remove the existing time limitations for claims for asbestos-related injuries and to extend the time in which such claims can be made.

One other observation is noteworthy. In a footnote the Court’s majority noted that the claimant had not raised section 1(f) of the Act as a basis to defeat Ferro’s motion to dismiss in the trial court. On appeal, the claimant argued that because the decedent’s disease did not manifest until after the time limitation in Section 1(f) of the Act, and since the claimant and the decedent were both precluded from recovering any compensation benefits, the effect was to essentially exclude the latent cancer from coverage under the Act, so the claimant’s recourse against the employer must be at common law. The Illinois Supreme Court noted that Ferro had not addressed the impact of section 1(f) either in the appellate court or the Supreme Court, and that issues not raised in the trial court cannot be raised for the first time on appeal. Therefore, the Court chose not to even address this argument. However future plaintiffs may choose to use the argument in other similar cases filed against employers for asbestos related cancers in circuit court common law actions.

Until a new bill is passed and enacted in Illinois, the Workers Comp “exclusive remedy” against employers for asbestos related injuries remains in effect.