Folta v. Ferro Engineering ( 2015 )

Illinois Official Reports
Supreme Court
Folta v. Ferro Engineering, 2015 IL 118070
Caption in Supreme ELLEN FOLTA, Indiv. and as Special Adm’r of the Estate of James
Court: Folta, Deceased, Appellee, v. FERRO ENGINEERING, a Division of
ON Marine Services Company, Appellant.
Docket No. 118070
Filed November 4, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
William D. Maddux and the Hon. James M. Varga, Judges, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Joshua G. Vincent, Craig T. Liljestrand, Kimberly A. Jansen, Paul M.
Appeal Markese, Jr., and Abigail M. Higgins, of Hinshaw & Culbertson LLP,
of Chicago, for appellant.
J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius &
Hollister LLP, and Nicholas J. Vogelzang, of Connelly & Vogelzang
LLC, both of Chicago, and Donald P. Blydenburgh and Jerome H.
Block, of Levy Phillips & Konigsberg LLP, of New York, New York,
for appellee.
Robert C. Johnson and Steven L. Merouse, of Dentons US LLP, of
Chicago, for amici curiae American Insurance Association et al.
Kirk C. Jenkins, of Sedgwick LLP, of Chicago, for amici curiae
Caterpillar Inc., et al.
Craig L. Unrath, Brad A. Elward and Melissa N. Schoenbein, of Heyl,
Royster, Voelker & Allen, of Peoria, and Patrick W. Stufflebeam,
Drew Kemp and Julie K. Brown, of HeplerBroom LLC, of
Edwardsville, for amicus curiae Illinois Defense Trial Counsel.
L. Elizabeth Coppoletti, of Nyhan, Bambrick, Kinzie & Lowry, P.C.,
and Larry Krause, both of Chicago, for amicus curiae Illinois
Self-Insurers’ Association.
Michael V. Oltmann, of Goldenberg Heller Antognoli & Rowland,
P.C., of Edwardsville, and Joel A. D’Alba, of Asher, Gittler &
D’Alba, Ltd., of Chicago, for amicus curiae Illinois AFL-CIO.
Kathy Byrne, of Cooney & Conway, of Chicago, for amicus curiae
Illinois Trial Lawyers Association.
John Simmons and Ted N. Gianaris, of Simmons Hanly Conroy, of
Alton, for amicus curiae Asbestos Disease Awareness Organization.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Karmeier and Burke concurred in
the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Kilbride.
Justice Thomas took no part in the decision.
OPINION
¶1 In this case we are asked to consider whether an employee can bring an action against an
employer outside of the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2010))
and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2010)), when the
employee’s injury or disease first manifests after the expiration of certain time limitations
under those acts. For the following reasons, we hold that under these circumstances, the
employee’s action is barred by the exclusive remedy provisions of those acts.
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¶2 BACKGROUND
¶3 For four years, from 1966 to 1970, James Folta was employed as a shipping clerk and
product tester for defendant Ferro Engineering. During that time period, as part of his job
duties, he was exposed to products containing asbestos. Forty-one years later, in May 2011,
James was diagnosed with mesothelioma, a disease associated with asbestos exposure. One
month later, he brought a civil action in the circuit court of Cook County against 15 defendants,
including Ferro Engineering, to recover damages for the disease he developed allegedly as a
consequence of his exposure to the asbestos-containing products while employed by Ferro
Engineering. James specifically sought relief against Ferro Engineering under several theories,
including, inter alia, negligence.
¶4 Thereafter, Ferro Engineering filed a motion to dismiss the complaint pursuant to section
2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)) arguing,
inter alia, that James’s claims against it were barred by the exclusive remedy provisions of the
Workers’ Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) and the Workers’
Occupational Diseases Act (820 ILCS 310/5(a), 11 (West 2010)). In response, James
maintained that his action fell outside the exclusive remedy provisions because his claims were
not “compensable” under the acts. He asserted that since the symptoms of his injury did not
manifest until more than 40 years after his last exposure to asbestos, and any potential
asbestos-related compensation claim was barred before he became aware of his injury under
the 25-year limitation provision in section 6(c) of the Workers’ Occupational Diseases Act
(820 ILCS 310/6(c) (West 2010)), his cause of action in the circuit court was not barred.
¶5 During the pendency of the litigation, James died, and his widow, Ellen Folta (Folta), was
substituted individually and as special administrator of James’s estate. The complaint was later
amended to assert a claim for wrongful death against Ferro Engineering and the other
defendants under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2010)).
¶6 The circuit court granted Ferro Engineering’s motion to dismiss, holding that the action
was barred by the exclusive remedy provisions. Specifically related to this appeal, the court
found that the running of the limitations period did not render the cause of action
noncompensable under the acts. Following the resolution of the claims against the remaining
defendants, which were dismissed after settlement or otherwise, Folta appealed from the
dismissal of the claims against Ferro Engineering.
¶7 The appellate court reversed and remanded. 2014 IL App (1st) 123219. Relying on this
court’s ruling in Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (1990), the appellate court
explained that an injured employee may bring a common-law action against his employer
where “the injury is not compensable under the Act.” (Internal quotation marks omitted.) 2014
IL App (1st) 123219, ¶ 27. The appellate court determined that the term “compensability”
must relate to the “ability to recover under the Act.” Id. ¶ 31. It found that Folta’s injury was
“quite literally not compensable” under the Workers’ Compensation Act because all
possibility of recovery was foreclosed due to the nature of his injury and the fact that his
disease did not manifest until after the statute of repose expired. Id. ¶ 36 (“Through no fault of
his own, [he] never had an opportunity to seek compensation under the Act.”). Accordingly,
the appellate court held that Folta’s suit against Ferro Engineering was not barred by the
exclusivity provisions of the Workers’ Compensation Act and the Workers’ Occupational
Diseases Act and remanded for further proceedings. Id. ¶ 44.
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¶8 We allowed Ferro Engineering’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
2013). We additionally allowed amici curiae briefs in support of both parties.1 Ill. S. Ct. R.
345 (eff. Sept. 20, 2010).
¶9 ANALYSIS
¶ 10 This case requires us to interpret the exclusive remedy provisions of the Workers’
Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) and the Workers’ Occupational
Diseases Act (820 ILCS 310/5(a), 11 (West 2010)). Specifically, we are asked to consider
whether these provisions bar an employee’s cause of action against an employer to recover
damages for a disease resulting from asbestos exposure which arose out of and in the course of
employment even though no compensation is available under those acts due to statutory time
limits on the employer’s liability. The question is one of law, which we review de novo.
Cassens Transport Co. v. Illinois Industrial Comm’n, 218 Ill. 2d 519, 524 (2006).
¶ 11 To answer this question, we begin with a brief overview of the well-established purpose of
the acts. The Workers’ Occupational Diseases Act provides compensation for diseases arising
out of, and in the course of, employment. 820 ILCS 310/1(d) (West 2010). That Act is modeled
after and designed to complement the Workers’ Compensation Act, which provides financial
protection for accidental injuries arising out of, and in the course of, employment. See 820
ILCS 305/1(d) (West 2012). In enacting these statutes, the General Assembly established a
new framework for recovery to replace the common-law rights and liabilities that previously
governed employee injuries. Sharp v. Gallagher, 95 Ill. 2d 322, 326 (1983); Zimmerman v.
Buchheit of Sparta, Inc., 164 Ill. 2d 29, 44 (1994) (“[t]he [Act] reflects the legislative
balancing of rights, remedies, and procedures that govern the disposition of employees’
work-related injuries”); Duley v. Caterpillar Tractor Co., 44 Ill. 2d 15, 18 (1969) (“ ‘The act
was designed as a substitute for previous rights of action of employees against employers and
to cover the whole ground of the liabilities of the master, and it has been so regarded by all
courts.’ ” (quoting Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 382
(1918))).
¶ 12 In exchange for a system of no-fault liability upon the employer, the employee is subject to
statutory limitations on recovery for injuries and occupational diseases arising out of and in the
course of employment. The acts further provide that the statutory remedies “ ‘shall serve as the
employee’s exclusive remedy if he sustains a compensable injury.’ ” Sharp, 95 Ill. 2d at
326-27 (quoting McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 356 (1981)).
Accordingly, both acts contain an exclusive remedy provision as part of the quid pro quo
which balances the sacrifices and gains of employees and employers. Meerbrey, 139 Ill. 2d at
462.
1
In support of Folta, we allowed briefs from the Illinois Trial Lawyers Association, the Asbestos
Disease Awareness Organization, and the Illinois AFL-CIO. In support of Ferro Engineering, we
allowed a joint brief from various businesses, including Caterpillar, Inc., Aurora Pump Company,
Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber
Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation; as well as
briefs from the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel; and a joint brief
from the American Insurance Association, Property Casualty Insurers Association of America, and the
Travelers Indemnity Company.
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¶ 13 The exclusive remedy provisions are embodied in two separate sections of the acts. Section
5(a) of the Workers’ Occupational Diseases Act provides, in pertinent part, as follows:
Ҥ 5. (a) There is no common law or statutory right to recover compensation or
damages from the employer *** for or on account of any injury to health, disease, or
death therefrom, other than for the compensation herein provided ***.” 820 ILCS
310/5(a) (West 2010).
Similarly, section 11 of the same Act provides:
Ҥ 11. The compensation herein provided for shall be the full, complete and only
measure of the liability of the employer bound by election under this Act and such
employer’s liability for compensation and medical benefits under this Act shall be
exclusive and in place of any and all other civil liability whatsoever, at common law or
otherwise, to any employee or his legal representative on account of damage, disability
or death caused or contributed to by any disease contracted or sustained in the course of
the employment.” 820 ILCS 310/11 (West 2010).
The corresponding exclusivity provisions in sections 5 and 11 of the Workers’ Compensation
Act (820 ILCS 305/5(a), 11 (West 2010)) have been viewed analogously for purposes of
judicial construction. See Dur-Ite Co. v. Industrial Comm’n, 394 Ill. 338, 344 (1946) (stating
that the acts are “homologous”); James v. Caterpillar Inc., 242 Ill. App. 3d 538, 549-50
(1993); Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 70 (1984). Thus, cases that
have construed the exclusivity provisions in the context of the Workers’ Compensation Act
would also apply in the context of the Workers’ Occupational Diseases Act.
¶ 14 In discussing the scope of the exclusivity provisions under the Workers’ Compensation
Act, this court has indicated that the Act generally provides the exclusive means by which an
employee can recover against an employer for a work-related injury. Meerbrey, 139 Ill. 2d at
462. However, an employee can escape the exclusivity 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.
Id. (citing Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980)).
¶ 15 With respect to the first three categories, we have explained that where an injury is
intentionally inflicted by an employer or does not arise out of and in the course of the
employment, it is outside the purview of the Act. Therefore, the exclusive remedy provisions
are not implicated and do not bar the action. See, e.g., Collier, 81 Ill. 2d at 239-40 (intentional
torts fall outside the scope of the Act as they are not accidental and do not arise from the
conditions of employment); Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 72 (1984)
(“we are not persuaded that this legislative balance was meant to permit an employer who
encourages, commands, or commits an intentional tort to use the act as a shield against liability
by raising the bar of the statute and then shifting liability throughout the system on other
innocent employers”).
¶ 16 Folta does not dispute that James’s asbestos exposure resulting in mesothelioma was
accidental and arose out of and during the course of his employment. To escape the exclusivity
provisions in this case, Folta relies on the fourth category, equating “compensable” with the
possibility to recover benefits. Folta contends that James’s injury is not compensable because
he never had an opportunity to recover any benefits under the Act. That is, through no fault of
his own, the claim was time-barred before his disease manifested. In contrast, Ferro
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Engineering maintains that whether an injury is compensable is defined by the scope of the
Act’s coverage and not on the particular employee’s ability to recover benefits.
¶ 17 With respect to the fourth category, 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.
¶ 18 In 1965, this court had previously explained that a “compensable” injury was one suffered
in the line of duty, which meant that the injury arose out of and in the course of employment.
Sjostrom v. Sproule, 33 Ill. 2d 40, 43 (1965); see also Unger v. Continental Assurance Co., 107
Ill. 2d 79, 85 (1985) (explaining that the “line of duty” test has been interpreted in the same
way as the test of compensability: that is, an injury will be found to be compensable if it arose
out of and in the course of employment).
¶ 19 Although this court equated “compensable” with “line of duty,” the sole question raised in
those cases was whether the plaintiff’s injuries arose out of or in the course of his employment.
In another line of cases we further refined our inquiry as to what is meant by compensable by
considering whether an employee was covered under the Act where the essence of the harm
was a psychological disability and not a traditional physical injury.
¶ 20 In Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556 (1976), an employee brought a
claim for disability benefits under the Act as a result of the severe emotional shock she suffered
after assisting a coemployee whose hand was severed in a machine. The court held that “a
psychological disability is not of itself noncompensable under the Workmen’s Compensation
Act.” Id. at 563. The court reasoned that this type of injury was within the concept of how we
defined an accidental injury. The court found that the term “accident” was defined broadly and
included anything that happened “without design or an event which is unforeseen by the
person to whom it happens.” Id. Therefore, the court concluded that an employee who suffered
a sudden, severe emotional shock after witnessing the injury of a coemployee had suffered an
accident within the meaning of the Act, even though the employee sustained no physical
trauma or injury. Id. Thus, the workers’ compensation claim could proceed.
¶ 21 Thereafter, in Collier, the court was asked to consider whether an employee could bring a
common-law action to recover for the emotional distress arising from an employer’s conduct
in failing to provide medical assistance after he suffered a heart attack. In addressing whether
the employee could escape the bar of the exclusivity provisions, the court set out four
categories, without citation, including consideration of whether the injury was “compensable”
under the Act. Collier, 81 Ill. 2d at 237. The court merely relied on the decision in Pathfinder
to find that emotional distress was “compensable” under the Act and, therefore, a claim for
emotional damages could not escape the bar of the exclusivity provisions. Id.
¶ 22 Lastly, in Meerbrey, the court considered whether emotional distress suffered as a
consequence of false imprisonment, false arrest, or malicious prosecution was “compensable”
under the Act. Although the court recognized that some jurisdictions had held that the type of
emotional injuries suffered as a result of being falsely imprisoned were not the type of
“personal injury” covered by workers’ compensation laws, the court found they were
compensable where the employee failed to differentiate the type of emotional injuries from
those suffered in Pathfinder and Collier. Meerbrey, 139 Ill. 2d at 467-68.
¶ 23 Thus, Pathfinder, Collier and Meerbrey stand for the proposition that whether an injury is
compensable is related to whether the type of injury categorically fits within the purview of the
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Act. These cases do not stand for the proposition that whether an injury is compensable is
defined by whether there is an ability to recover benefits for a particular injury sustained by an
employee. In all of these cases, the exclusivity provisions barred a common-law cause of
action.
¶ 24 Here, there is no question that based on the allegations in the complaint, James’s disease is
the type of disease intended to fall within the purview of the Act. An “occupational disease” is
defined as one “arising out of and in the course of the employment.” 820 ILCS 310/1(d) (West
2010). A disease arises out of the employment if there is a “causal connection between the
conditions under which the work is performed and the occupational disease.” Id. The disease
“must appear to have had its origin *** in a risk connected with the employment and to have
flowed from that source as a rational consequence.” Id. There is no dispute for purposes of this
appeal that James’s disease was precipitated by occupational exposure to asbestos.
¶ 25 Moreover, the Act specifically addresses diseases caused by asbestos exposure, and,
indeed, employees and spouses have recovered for disabilities or death arising from workplace
asbestos exposure, including mesothelioma. See, e.g., Kieffer & Co. v. Industrial Comm’n, 263
Ill. App. 3d 294 (1994) (employee, who had been exposed to asbestos in the workplace for 40
years, died after being diagnosed with mesothelioma, and his widow was entitled to recover
benefits); Owens Corning Fiberglas Corp. v. Industrial Comm’n, 198 Ill. App. 3d 605 (1990)
(widow had an independent claim for death benefits arising from her husband’s
mesothelioma); H&H Plumbing Co. v. Industrial Comm’n, 170 Ill. App. 3d 706 (1988)
(employee who was exposed to asbestos in the workplace as a pipefitter recovered under the
Workers’ Occupational Diseases Act for his lung disease); Zupan v. Industrial Comm’n, 142
Ill. App. 3d 127 (1986) (employee who was exposed to asbestos in the workplace for 22 years
as a bricklayer recovered under the Workers’ Occupational Diseases Act). Thus, it is evident
that 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. Accordingly,
under Pathfinder, Collier and Meerbrey, James’s injury is the type of injury compensable
under the Act.
¶ 26 Nevertheless, those cases never addressed specifically whether the exclusivity provisions
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 employer’s liability. In Moushon v.
National Garages, Inc., 9 Ill. 2d 407 (1956), and Duley v. Caterpillar Tractor Co., 44 Ill. 2d 15
(1969), however, this court had some opportunity to consider the interplay between certain
provisions under the Workers’ Compensation Act that limit the employer’s liability and the
exclusive remedy provisions.
¶ 27 In Moushon, an employee was injured while operating equipment at his workplace. The
employer provided medical, surgical and hospital services related to the injury under the Act,
but the employee brought an action to recover damages for his resulting permanent impotence.
Moushon, 9 Ill. 2d at 410-13. This court held that the exclusivity provisions of the Act barred
the employee’s cause of action even though no compensation for his permanent injury was
provided for under the Act. Id. at 410-12.
¶ 28 Notably, the Moushon court did not adopt the view articulated by the dissenting judge that
where “no compensation benefits are provided in the act for the particular injury, so that no
remedy is afforded the employee under the act for an injury caused by the employer’s
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negligence, then a common-law action for damages should be allowed.” Id. at 418 (Bristow, J.,
dissenting, joined by Davis, J.).
¶ 29 In Duley, the husband of a deceased employee who was fatally injured in a workplace
accident brought a wrongful death action against the employer. The employer had paid for the
burial expenses as a result of the death, but no other compensation benefits were payable to the
husband under the Workers’ Compensation Act because the Act limited compensation to those
who were dependents of the injured employee. Duley, 44 Ill. 2d at 16-18. This court held that
the exclusive remedy provisions of the Workers’ Compensation Act barred his action even
though the husband could not recover for his damages under the Act, other than the nominal
amount of funeral expenses. Id. at 18.
¶ 30 Thus, since 1956, this court has held that despite limitations on the amount and type of
recovery under the Act, the Act is the employee’s exclusive remedy for workplace injuries.
¶ 31 With this understanding, we now specifically address Folta’s arguments. Essentially, Folta
contends that the exclusive remedy provisions assume the possibility of a right to
compensation. In this case, Folta argues that because of the latency of James’s disease, various
sections, including 6(d) of the Workers’ Compensation Act (820 ILCS 305/6(d) (West 2010))
and sections 6(c) and 1(f) of the Workers’ Occupational Diseases Act (820 ILCS 310/6(c), 1(f)
(West 2010)), precluded her from recovering compensation benefits or even filing an
application for benefits because James’s injury fell outside those limitations periods of the acts
and, therefore, any possibility to even seek compensation benefits was foreclosed. Therefore,
Folta maintains that under these circumstances, the employer should not enjoy the benefit of
the exclusivity provisions.
¶ 32 We agree that section 6(c) of the Workers’ Occupational Diseases Act does bar Folta’s
right to file an application for compensation. That section provides that, “[i]n cases of
disability caused by exposure to *** asbestos, unless application for compensation is filed with
the Commission within 25 years after the employee was so exposed, the right to file such
application shall be barred.” 820 ILCS 310/6(c) (West 2010); see also 820 ILCS 305/6(d)
(West 2010) (analogous 25-year limitation period under the Workers’ Compensation Act).
Section 6(c) further provides that “[i]n cases of death occurring within 25 years from the last
exposure to *** asbestos, application for compensation must be filed within 3 years of death
***.” 820 ILCS 310/6(c) (West 2010).
¶ 33 Based on the plain language of this section, this provision acts as a statute of repose and
creates an absolute bar on the right to bring a claim. In contrast to a statute of limitations, which
determines the time within which a lawsuit may be brought after a cause of action has accrued,
a statute of repose extinguishes the action after a defined period of time, regardless of when the
action accrued. DeLuna v. Burciaga, 223 Ill. 2d 49, 61 (2006) (citing Ferguson v. McKenzie,
202 Ill. 2d 304, 311 (2001)). It begins to run when a specific event occurs, “regardless of
whether an action has accrued or whether any injury has resulted.” Ferguson, 202 Ill. 2d at
311. Thus, the statute of repose limit is “ ‘not related to the accrual of any cause of action; the
injury need not have occurred, much less have been discovered.’ ” CTS Corp. v. Waldburger,
573 U.S. ___, ___, 134 S. Ct. 2175, 2182-83 (2014) (quoting 54 C.J.S. Limitations of Actions
§ 7, at 24 (2010)). The purpose of a repose period is to terminate the possibility of liability after
a defined period of time. After the expiration of the repose period, there is no longer a
recognized right of action. Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 16.
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¶ 34 Thus, the General Assembly intended to provide an absolute definitive time period within
which all occupational disease claims arising from asbestos exposure must be brought. Since
James’s last employment exposure to asbestos was in 1970, the 25-year period of repose has
long since expired. The fact that Folta was not at fault for failing to file a claim sooner due to
the nature of the disease 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.
¶ 35 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.” (Emphasis
added.) 820 ILCS 310/11 (West 2010).
¶ 36 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 then free to bring a wrongful death
action in 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.
¶ 37 We do not find that the provisions in section 1(f) of the Workers’ Occupational Diseases
Act would lead us to a different result. Generally, section 1(f) provides that “[n]o
compensation shall be payable for *** any occupational disease unless disablement *** occurs
within two years after the last day of the last exposure to the hazards of the disease.” 820 ILCS
310/1(f) (West 2010). Specifically, in cases of occupational disease caused by the inhalation of
asbestos dust, no compensation is payable unless disablement occurs “within [three] years
after the last day of the last exposure to the hazards of such disease.” Id.
¶ 38 Folta maintains that since James’s disease did not manifest until after the time limitation in
section 1(f), and since she and James were both precluded from recovering any compensation
benefits offered by the statute, the effect was to essentially exclude this latent disease from
coverage under the Act. Thus, Folta asserts that her recourse against the employer must be
found in the common law.2
¶ 39 In support of her contentions, Folta relies in part on the Pennsylvania Supreme Court’s
decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). There, the court construed the
Pennsylvania Workers’ Compensation Act, which defined “injury” to include “occupational
disease,” to provide that, if occupational disease was the basis for compensation, that Act only
2
We note that Folta never raised section 1(f) as a basis to defeat Ferro Engineering’s motion to
dismiss in the trial court and, thus, the trial court never ruled on its impact. Traditionally, we have held
that an issue not raised in the trial court is forfeited and cannot be raised for the first time on appeal. See
Daniels v. Anderson, 162 Ill. 2d 47, 58 (1994) (the theory upon which a case is tried in the lower court
cannot be changed on review, and an issue not presented or considered by the trial court cannot be
raised for the first time on review). Ferro Engineering did not address the impact of section 1(f) either in
the appellate court or before this court, but has failed to bring defendant’s forfeiture of the issue to the
attention of the appellate court or this court. Therefore, we choose to address the argument.
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applied to disability or death resulting from such disease and occurring within a 300-week time
window. The court held, over a dissent, that this time limitation “operate[d] as a de facto
exclusion of coverage under the Act for essentially all mesothelioma claims,” where the
average latency period for mesothelioma was found to be 30 to 50 years. Id. at 863. Therefore,
the court held that the common-law claims were not barred by the exclusivity provisions of the
Pennsylvania Act. Id. at 865.
¶ 40 We do not believe that Illinois’s statutory scheme operates as “a de facto” exclusion of
coverage for latent occupational disease claims. Rather, under our statute, whether
compensation benefits are awarded for an occupational disease depends upon the facts and
circumstances of each particular case based on proof presented to the Workers’ Compensation
Commission of when a disability manifested. See, e.g., Plasters v. Industrial Comm’n, 246 Ill.
App. 3d 1 (1993) (Commission determined that employee proved disablement within two
years of his last exposure based on testimony indicating that the claimant was impaired from
the disease at the time he retired from mining.).
¶ 41 Given the plain language of the exclusive remedy provisions, which state that there is no
right to recover damages from the employer for “any injury to health, disease, or death
therefrom, other than for the compensation herein provided” (emphasis added) (820 ILCS
310/5(a) (West 2010)), and that the Act is exclusive with respect to “any disease contracted or
sustained in the course of the employment” (emphasis added) (820 ILCS 310/11 (West 2010)),
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.
¶ 42 Furthermore, this limitation on the employer’s liability was originally enacted in 1936
(1935-36 Ill. Laws 40 (§ 5)). It has remained in the statute unchanged for the last 79 years
despite numerous amendments to other provisions of the Act. Since 1936, section 1(f) has
functioned as a temporal limitation on the availability of compensation benefits and not as a
basis to remove occupational diseases from the purview of the Act. Consistent with Collier and
Meerbrey, the litmus test is not whether there is an ability to recover benefits. Nothing in our
statute or the history of our jurisprudence suggests that a temporal limitation removes a
work-related injury from the purview of the Act.
¶ 43 We are cognizant of the harsh result in this case. 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. It is the province of the legislature to draw the appropriate balance. It is not our role
to inject a compromise, but, rather, to interpret the acts as written. See Roselle Police Pension
Board v. Village of Roselle, 232 Ill. 2d 546, 557 (2009) (this court does not “sit as a
superlegislature to weigh the wisdom of legislation [or] to decide whether the policy which it
expresses offends the public welfare” (internal quotation marks omitted)).
¶ 44 Finally, we reject Folta’s assertions that to hold that the exclusive remedy provisions bar
her cause of action would violate the Illinois Constitution’s guarantees of equal protection (Ill.
Const. 1970, art. I, § 2), prohibition against special legislation (Ill. Const. 1970, art. IV, § 13),
and the right to a certain remedy (Ill. Const. 1970, art. I, § 12). Statutes are presumed to be
constitutional, and the party challenging the constitutionality of a statute carries the burden of
proving that the statute is unconstitutional. People v. Hollins, 2012 IL 112754, ¶ 13.
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¶ 45 Equal protection guarantees that similarly situated individuals will be treated similarly,
unless the government demonstrates an appropriate reason to do otherwise. People v.
Richardson, 2015 IL 118255, ¶ 9. Equal protection prohibits the state from according unequal
treatment to persons placed by a statute into different classes for reasons wholly unrelated to
the purpose of the legislation. People v. R.L., 158 Ill. 2d 432, 437 (1994). A special legislation
challenge is generally judged by the same standards that apply to equal protection challenges.
In re Petition of the Village of Vernon Hills, 168 Ill. 2d 117, 123 (1995).
¶ 46 In an underdeveloped argument, Folta contends that interpreting the exclusive remedy
provisions to deprive the family of a right to recovery against the employer would arbitrarily
create two classes of similarly situated injured workers who are treated unequally and without
any rational basis. Folta argues that those workers who suffer from occupational diseases with
short latency periods are eligible to receive compensation benefits, while those workers who
suffer from occupational diseases with long latency periods are “categorically” prohibited
from a right to recover compensation benefits and are additionally prohibited from seeking
common-law damages. Folta maintains that this distinction is not rationally related to any
apparent legitimate state interest.
¶ 47 We disagree. Under this court’s interpretation, these classes of injured workers are indeed
all treated equally in terms of the right to bring an action for damages. All of these workers are
precluded from seeking common-law damages. Therefore, Folta has not established any
disparate treatment in the application and scope of the exclusive remedy provisions.
¶ 48 Furthermore, Folta’s premise that all employees who suffer from occupational diseases
with long latency periods are “categorically” unable to recover benefits, is incorrect. For
example, in Stypula v. City of Chicago, Ill. Workers’ Compensation Comm’n No.
98-WC-062986 (Nov. 25, 2003), a city employee was exposed to asbestos from 1976 through
1998 as a garbage hauler. He then retired, and three years later, in 2001, he was diagnosed with
mesothelioma and died. Even though he had a long latency period, his widow was entitled to
compensation where she filed within three years of the death because the employee’s disability
arose within three years of the last day of exposure. See also Kieffer, 263 Ill. App. 3d 294
(claimant, who had been exposed to asbestos in the workplace for 40 years, filed a claim within
two years of his last exposure after being diagnosed with mesothelioma). Assuredly, there are
examples where the particular facts and circumstances are such that they do not allow for
recovery of benefits against the employer. But there is no “categorical” class without a right to
seek benefits against their employer. Thus, we find Folta’s equal protection and special
legislation arguments lack merit.
¶ 49 Additionally, we reject Folta’s argument that interpreting the scope of the exclusive
remedy provisions to bar the wrongful death action would violate the certain remedy clause of
the Illinois Constitution. As Folta acknowledges, this clause is “ ‘merely “an expression of a
philosophy and not a mandate that a certain remedy be provided in any specific form.” ’ ”
(Internal quotation marks omitted.) Cassens Transport Co., 218 Ill. 2d at 532 (quoting Segers
v. Industrial Comm’n, 191 Ill. 2d 421, 435 (2000)). Additionally, this court has explained that
the legislature “may restrict the class of potential defendants from whom a plaintiff may seek a
remedy” without violating the certain remedy clause. Bilyk v. Chicago Transit Authority, 125
Ill. 2d 230, 246 (1988).
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¶ 50 The acts do not prevent an employee from seeking a remedy against other third parties for
an injury or disease. Rather, in this case, the acts restrict the class of potential defendants from
whom Folta could seek a remedy, limiting Folta’s recourse for wrongful death claims to third
parties other than the employer. In this case, Folta named 14 defendant manufacturers of
asbestos-related products. Folta was not left without any remedy. Thus, we find no merit to the
constitutional claims raised by Folta.
¶ 51 CONCLUSION
¶ 52 For all of the foregoing reasons, 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.
¶ 53 Appellate court judgment reversed.
¶ 54 Circuit court judgment affirmed.
¶ 55 JUSTICE FREEMAN, dissenting:
¶ 56 The majority today holds that plaintiff’s common-law action against his former employer
is barred by the exclusive remedy provisions of the Workers’ Compensation Act and the
Workers’ Occupational Diseases Act. Plaintiff never had the right to file an application for
compensation under either of these acts, whose time limitations expired long before plaintiff’s
mesothelioma was manifest. Plaintiff sought relief through the instant common-law action.
However, in the majority’s view, the acts’ exclusive remedy provisions preclude any such
common-law claim. Plaintiff thus is completely barred from seeking any compensation from
his former employer for his asbestos-related disease. I strongly disagree with the majority’s
decision. Accordingly, I dissent.
¶ 57 Plaintiff James Folta was employed by defendant Ferro Engineering (Ferro) from 1966 to
1970. During that time, as part of his job duties, he worked with various asbestos-containing
products, allegedly on a daily basis. Forty-one years later he was diagnosed with
mesothelioma, a disease associated with asbestos exposure. He subsequently brought a civil
action in circuit court against 15 defendants, including Ferro, to recover damages for his
asbestos-related disease.3 Ferro filed a motion to dismiss the counts against it, arguing that
plaintiff’s claims were barred by the exclusive remedy provisions of the Workers’
Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) and the Workers’ Occupational
Diseases Act (820 ILCS 310/5(a), 11 (West 2010)). Plaintiff argued, in response, that his
action fell outside the exclusive remedy provisions under an exception for claims that are “not
compensable under the Act.” Plaintiff noted that any potential asbestos-related claim was
barred before he became aware of it under the 25-year limitation provision in section 6(c) of
3
During the pendency of the litigation, James died and his widow, Ellen Folta, was substituted as
plaintiff. The complaint was subsequently amended to assert a wrongful death claim against Ferro and
the other defendants.
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the Workers’ Occupational Diseases Act (820 ILCS 310/6(c) (West 2010)),4 and his action in
circuit court was not barred. The circuit court granted Ferro’s motion to dismiss, concluding
the action was barred by the exclusive remedy provisions. Following resolution of the claims
against the remaining defendants, plaintiff appealed from the dismissal of the claims against
Ferro.
¶ 58 In a unanimous opinion, the appellate court reversed and remanded. 2014 IL App (1st)
123219. Regarding the exclusivity provisions of the Workers’ Compensation Act and the
Workers’ Occupational Diseases Act, the court noted the scope of these provisions is not
absolute. The court pointed to Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990),
which listed four exceptions to the Workers’ Compensation Act’s exclusivity provisions.
Under those exceptions, an injured employee may still bring a common law action against his
employer if he can prove that: (1) the injury was not accidental; (2) the injury did not arise from
his employment; (3) the injury was not received during the course of his employment; or (4)
the injury is “ ‘not compensable under the Act.’ ” 2014 IL App (1st) 123219, ¶ 27 (quoting
Meerbrey, 139 Ill. 2d at 463); accord Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237
(1980). Plaintiff argued that the fourth exception, for injuries “not compensable under the
Act,” should apply to enable him to bring a common-law claim against his former employer,
where any potential claim for recovery under the Workers’ Compensation Act or the Workers’
Occupational Diseases Act was time-barred before he became aware of his injury. Ferro
argued, in response, that the appellate court should adopt a narrow reading of “not
compensable under the Act” and find that an injury is not compensable only if it does not arise
out of and in the course of employment. 2014 IL App (1st) 123219, ¶ 29. The court rejected
Ferro’s argument, correctly noting that Ferro’s proposed definition of compensability “would
render the fourth Meerbrey exception superfluous, since Meerbrey already contains explicit
exceptions for injuries that did not arise from a worker’s employment and injuries that were not
received during the course of employment.” Id. ¶ 30. The court held that the fourth Meerbrey
exception applied to allow plaintiff to bring a common law suit against Ferro. Id. ¶ 36. In the
court’s view, plaintiff’s injury was “quite literally not compensable under the Act, in that all
possibility of recovery is foreclosed because of the nature of plaintiff’s injury.” Id.
¶ 59 Here, the majority correctly notes that this case is about the interpretation of the exclusive
remedy provisions of the Workers’ Compensation Act and the Workers’ Occupational
Diseases Act. Those exclusivity provisions are set forth in sections 5 and 11 of each Act.
Section 5(a) of the Workers’ Occupational Diseases Act provides, in relevant part:
4
Section 6(c) of the Workers’ Occupational Diseases Act provides: “In cases of disability caused by
exposure to *** asbestos, unless application for compensation is filed with the Commission within 25
years after the employee was so exposed, the right to file such application shall be barred.” 820 ILCS
310/6(c)(West 2010). Section 1(f) of the same act provides: “[I]n cases of occupational disease caused
by *** the inhalation of *** asbestos dust [no compensation shall be payable unless disablement
occurs] *** within 3 years after the last day of the last exposure to the hazards of such disease ***.” 820
ILCS 310/1(f) (West 2010). Finally, section 6(d) of the Workers’ Compensation Act, which is similar
to section 6(c) of the Workers’ Occupational Diseases Act, provides: “In any case of injury caused by
exposure to *** asbestos, unless application for compensation is filed with the Commission within 25
years after the last day that the employee was employed in an environment of *** asbestos, the right to
file such application shall be barred.” 820 ILCS 305/6(d) (West 2010).
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Ҥ 5. (a)There is no common law or statutory right to recover compensation or
damages from the employer *** for or on account of any injury to health, disease, or
death therefrom, other than for the compensation herein provided ***.” 820 ILCS
310/5(a) (West 2010).
¶ 60 Similarly, section 11 of the same Act provides:
Ҥ 11. The compensation herein provided for shall be the full, complete and only
measure of the liability of the employer bound by election under this Act and such
employer’s liability for compensation and medical benefits under this Act shall be
exclusive and in place of any and all other civil liability whatsoever, at common law or
otherwise, to any employee or his legal representative on account of damage, disability
or death caused or contributed to by any disease contracted or sustained in the course of
the employment.” 820 ILCS 310/11 (West 2010).
The corresponding exclusivity provisions in sections 5(a) and 11 of the Workers’
Compensation Act (820 ILCS 305/5(a), 11 (West 2010)) are viewed analogously for purposes
of judicial construction. James v. Caterpillar Inc., 242 Ill. App. 3d 538, 549-50 (1993)
(exclusivity provisions of Workers’ Compensation Act and Workers’ Occupational Diseases
Act “are homologous for purposes of judicial construction”).
¶ 61 In interpreting these exclusivity provisions, the majority looks, as did the appellate court,
to the Meerbrey exceptions, particularly the fourth exception, under which an injured
employee may still bring a common law action against his employer if he can prove that “the
injury was not compensable under the Act.” Meerbrey, 139 Ill. 2d at 463. However, the
majority’s interpretation of the fourth exception is quite different from that of the appellate
court, which held that the exception applied here because plaintiff’s injury was “quite literally
not compensable under the Act, in that all possibility of recovery is foreclosed because of the
nature of plaintiff’s injury.” 2014 IL App (1st) 123219, ¶ 36. In contrast, the majority appears
to agree with Ferro that whether an injury is compensable is defined by the scope of the Act’s
coverage, and not on the particular employee’s ability to recover benefits. See supra ¶ 16.
After looking at several of this court’s decisions, including Moushon v. National Garages,
Inc., 9 Ill. 2d 407 (1956), the majority states: “[S]ince 1956, this court has held that despite
limitations on the amount and type of recovery under the Act, the Act is the employee’s
exclusive remedy for workplace injuries.” Supra ¶ 30.
¶ 62 In Moushon, the plaintiff alleged that during the course of his work, a safety device on the
man lift he was riding failed and he suffered internal injuries, including a ruptured urethra, and
was left impotent. The employer provided medical, surgical and hospital services related to the
injury under the Workers’ Compensation Act. The employer also paid, and the plaintiff
received, compensation for the period of his temporary disability, in accordance with the
Workers’ Compensation Act. Moushon, 9 Ill. 2d at 409. However, the plaintiff also filed a
common-law negligence suit against the employer seeking additional damages for his resulting
permanent impotence. This court held that the plaintiff’s suit for additional damages was
barred by the Workers’ Compensation Act’s exclusive remedy provision. The court further
concluded that even if it were assumed that the plaintiff could not recover statutory
compensation for every element of damages (i.e., his impotence), “[h]e still is covered by the
act and sustained an accidental injury for which he received compensation benefits.” Id. at
410-11.
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¶ 63 Moushon fits within the majority’s statement that “despite limitations on the amount and
type of recovery under the Act, the Act is the employee’s exclusive remedy for workplace
injuries.” Supra ¶ 30. In Moushon, the plaintiff’s injury was within the Workers’
Compensation Act’s “coverage formula” (id. at 411) and the plaintiff received compensation
for that injury. That the plaintiff might not have been able to recover statutory compensation
for a particular element said to arise from his injury does not entitle him to file a common-law
action against his employer for additional damages.
¶ 64 But that is not the situation in the case at bar, where plaintiff was barred from recovering
any compensation from his former employer for his injury. As the appellate court stated:
“[P]laintiff’s injury is quite literally not compensable under the Act, in that all possibility of
recovery is foreclosed because of the nature of plaintiff’s injury.” 2014 IL App (1st) 123219,
¶ 36. Plaintiff’s “injury” was mesothelioma, which has an average latency period of 30 to 50
years. Tooey v. AK Steel Corp., 81 A.3d 851, 863 (Pa. 2013). Plaintiff’s mesothelioma was not
manifest until 41 years after he left Ferro, far beyond the 25-year statutory limitation in effect.
“Through no fault of his own, plaintiff never had an opportunity to seek compensation under
the Act.” 2014 IL App (1st) 123219, ¶ 36.
¶ 65 At a minimum, Moushon, which formed a basis for the majority’s “exclusive remedy”
assertion (supra ¶¶ 26-28) is inapposite to the case at bar.
¶ 66 Another difficulty with the majority’s analysis is that, while acknowledging that this case
requires interpretation of the exclusive remedy provisions of the Workers’ Compensation Act
and the Workers’ Occupational Diseases Act, the majority’s interpretation of these provisions
includes, at most, only scant mention of the canons of statutory construction.
¶ 67 The construction of a statute is guided by familiar principles. The primary objective in
construing a statute is to ascertain and give effect to the intention of the legislature. Chicago
Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566,
¶ 15. The most reliable indicator of that intent is the statutory language, which must be given
its plain and ordinary meaning. Hubble v. Bi-State Development Agency of the
Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268 (2010). A statute is viewed as a
whole, with all relevant parts considered. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232
(2001). Each word, clause and sentence of a statute must be given a reasonable meaning, if
possible, and should not be rendered superfluous. Chicago Teachers Union, 2012 IL 112566,
¶ 15; Sylvester, 197 Ill. 2d at 232. The court may consider the reason for the law, the problems
sought to be remedied, the purposes to be achieved, and the consequences of construing the
statute one way or another. Hubble, 238 Ill. 2d at 268. In construing a statute, courts presume
that the General Assembly did not intend absurdity, inconvenience, or injustice. Michigan
Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000); Sylvester, 197 Ill. 2d at
232.
¶ 68 There is also a principle that expressly applies to the construction of the Workers’
Compensation Act. “In construing the provisions of the Workmen’s Compensation Act, all
portions thereof must be read as a whole and in such manner as to give to them the practical
and liberal interpretation intended by the legislature.” Vaught v. Industrial Comm’n, 52 Ill. 2d
158, 165 (1972); K. & R. Delivery, Inc. v. Industrial Comm’n, 11 Ill. 2d 441, 445 (1957).
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¶ 69 Of particular importance here is the rule that, in construing a statute, the court may consider
the reason for the law, the problems sought to be remedied, the purposes to be achieved, and
the consequences of construing the statute one way or another. Hubble, 238 Ill. 2d at 268.
¶ 70 This court has described the Workers’ Compensation Act as “a humane law of a remedial
nature whose fundamental purpose is to provide employees and their dependents prompt, sure
and definite compensation, together with a quick and efficient remedy, for injuries or death
suffered in the course of employment.” General American Life Insurance Co. v. Industrial
Comm’n, 97 Ill. 2d 359, 370 (1983); see also Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d
556, 563 (1976) (“The Act is remedial in nature in that it is intended to provide financial
protection for the injured worker.”); cf. Collier, 81 Ill. 2d at 241 (“[T]he basic purpose of
workmen’s compensation [is] to place the cost of industrial accidents upon the industry.”).
¶ 71 The benefits of the Workers’ Compensation Act are not limited to workers, however.
Advantages accrue to both sides. The Workers’ Compensation Act “imposes liability without
fault upon the employer and, in return, prohibits common law suits by employees against the
employer.” Meerbrey, 139 Ill. 2d at 462. The Workers’ Compensation Act’s exclusive remedy
provision thus “is part of the quid pro quo in which the sacrifices and gains of employees and
employers are to some extent put in balance, for, while the employer assumes a new liability
without fault, it is relieved of the prospect of large damage verdicts.” 9 Arthur Larson et al.,
Larson’s Workers’ Compensation Law § 100.01(1) (2015). This is naturally a two-way
proposition.
“[T]he employer should be spared damage liability only when compensation liability
has actually been provided in its place, or, to state the matter from the employee’s point
of view, rights of action for damages should not be deemed taken away except when
something of value has been put in their place.” Id. § 100.04.
¶ 72 It is instructive to look at the majority’s interpretation of the exclusive remedy provisions
in terms of the consequences of that interpretation. According to the majority, the acts are the
employee’s exclusive remedy for workplace injuries, even where, as here, plaintiff never had
an opportunity to seek such compensation because his occupational mesothelioma was not
manifest until long after the statutory time limitations had elapsed. As the appellate court
stated, “plaintiff’s injury is quite literally not compensable under the Act, in that all possibility
of recovery is foreclosed because of the nature of plaintiff’s injury.” 2014 IL App (1st) 123219,
¶ 36. “Through no fault of his own, plaintiff never had an opportunity to seek compensation
under the Act.” Id. Under the majority’s interpretation of the exclusivity provisions, plaintiff is
barred not only from recovering compensation benefits under the acts, but from recovering
against his former employer under the common law as well. The majority’s interpretation runs
directly counter to the acts’ purpose (see General American Life Insurance, 97 Ill. 2d at 370
(describing Workers’ Compensation Act as “a humane law of a remedial nature whose
fundamental purpose is to provide employees and their dependents prompt, sure and definite
compensation”)), as well as the assertion (regarding the quid pro quo) that “rights of action for
damages should not be deemed taken away except when something of value has been put in
their place” (9 Arthur Larson et al., Larson’s Workers’ Compensation Law § 100.04 (2015)).
In addition, the majority’s interpretation contradicts the principle that, in construing a statute,
courts presume that the General Assembly did not intend absurdity, inconvenience, or
injustice. Michigan Avenue National Bank, 191 Ill. 2d at 504; Sylvester, 197 Ill. 2d at 232.
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¶ 73 In my view, the majority’s interpretation cannot be the law. In elaborating on that
interpretation, the majority asserts that section 6(c) of the Workers’ Occupational Diseases
Act—which imposes a 25-year time limit on applications for compensation in asbestos
cases—“acts as a statute of repose and creates an absolute bar on the right to bring a claim.”
Supra ¶ 33. The majority explains that the purpose of a repose period is to terminate the
possibility of liability after a defined period of time. “After the expiration of the repose period,
there is no longer a recognized right of action.” Id. That is exactly the point. If there is no
longer a recognized right of action, then the employee’s injury is not compensable under the
Act, and the employee may bring (under the fourth Meerbrey exception) a common-law cause
of action against his employer. As the appellate court below noted: “[P]laintiff’s injury is quite
literally not compensable under the Act, in that all possibility of recovery is foreclosed because
of the nature of plaintiff’s injury.” 2014 IL App (1st) 123219, ¶ 36.
¶ 74 I find support for this view in Larson’s Workers’ Compensation Law, which sharply
criticizes a case which, unlike Moushon, is almost exactly on point with the case at bar. In
Kane v. Durotest Corp., 182 A.2d 559 (N.J. 1962), the employee, Gloria Kane, worked for
defendant Durotest from May 1946 to June 1950, except for a short interval in November and
December 1947. During the course of her work, she was exposed to highly toxic beryllium
compounds, the fumes and dust of which are capable of producing a pulmonary disease known
as beryllium poisoning. The disease first manifested itself in her in January 1958, seven and a
half years after she left Durotest. Gloria died one year later, in January 1959, at the age of 34,
leaving surviving her husband and three children.
¶ 75 New Jersey’s Workmen’s Compensation Act provided, in pertinent part: “ ‘[A]ll claims for
compensation for compensable occupational disease hereunder shall be forever barred unless a
petition is filed ***, within five years after the date on which the employee ceased to be
exposed in the course of employment with the employer to such occupational disease; ***.’ ”
(Emphasis added.) Kane, 182 A.2d at 560. Since Gloria’s last employment exposure to
beryllium was in June 1950, and her occupational disease did not manifest until January 1958,
the five-year statutory time limitation elapsed long before she was aware of her illness.
¶ 76 Gloria’s husband brought a common-law action individually and as administrator of her
estate to recover damages against Durotest for its negligence in exposing her to beryllium
poisoning during the course of her employment. Defendant moved for judgment, arguing the
case was governed by the Workmen’s Compensation Act. The trial court granted the motion
and dismissed the case, and the Supreme Court of New Jersey affirmed, citing the exclusivity
of the Workmen’s Compensation Act. Id. at 560-62. The court stated:
“[W]hen compensation benefits for occupational diseases, including berylliosis, were
authorized and brought within the substantive and administrative scheme of the
Workmen’s Compensation Act, that remedy, with its advantages and its qualifications,
was exclusive and in lieu of the former common law right. The legislative action must
be considered as occupying and preempting the field; all other remedies were thereby
abrogated.” Id. at 561.
Professor Larson’s treatise scathingly censures this case:
“Other jurisdictions, including Illinois and Pennsylvania, have refused to follow the
twisted logic in Kane that would (1) bar the claim because it was unknown at the time
the statute of repose expired and (2) bar the civil action because of the exclusive
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remedy provisions of the state’s workers’ compensation law.” (Emphasis added.) 9
Larson’s Workers’ Compensation Law § 100.05(3)(b) (2015).
¶ 77 The treatise cites four Illinois cases and one Pennsylvania case that “refused to follow the
twisted logic of Kane.” The first Illinois case cited is the appellate court decision in the case at
bar, followed by Meerbrey and two additional appellate court decisions. The Pennsylvania
case is Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), which is briefly discussed in the
majority’s opinion, extensively discussed in plaintiff’s (appellee’s) brief, and mentioned in a
footnote in defendant Ferro’s (appellant’s) brief.
¶ 78 Tooey is a consolidation of two appeals. In the first case, John Tooey worked for Ferro
Engineering (apparently the same defendant as in the case at bar) as an industrial salesman of
asbestos products from 1964 until 1982, during which time he was exposed to asbestos dust. In
December 2007, Tooey developed mesothelioma and died less than one year later. In the other
case, Spurgeon Landis worked for Alloy Rods, Inc., from 1946 until 1982. He, too, was
exposed to asbestos throughout his employment and in July 2007 was diagnosed with
mesothelioma.
¶ 79 Section 301(c)(2) of the Pennsylvania Workers’ Compensation Act (Workers’
Compensation Act) provided that “ ‘whenever occupational disease is the basis for
compensation, for disability or death under this act, it shall apply only to disability or death
resulting from such disease and occurring within three hundred weeks after the last date of
employment in an occupation or industry to which [the employee] was exposed to hazards of
such disease.’ ” (Emphasis omitted.) Tooey, 81 A.3d at 857. Both Tooey’s and Landis’s
mesothelioma manifested some 25 years after their last date of employment where they were
exposed to asbestos, far beyond the 300-week limitation period in section 301(c)(2) of the
Workers’ Compensation Act.
¶ 80 In 2008, Tooey, Landis, and their spouses (appellants) filed separate tort actions against
multiple defendants, including their employers (collectively, employers). The employers filed
motions for summary judgment, alleging that appellants’ causes of action were barred by the
exclusivity provision of section 303(a) of the Workers’ Compensation Act. The appellants
responded that a tort action is permitted against an employer where, as here, a disease falls
outside the jurisdiction, scope, and coverage of the Workers’ Compensation Act. The trial
court agreed with the appellants and denied the employers’ motions for summary judgment.
On appeal, the Superior Court reversed the trial court’s decision. In the instant consolidated
appeal, the Pennsylvania Supreme Court reversed the decision of the Superior Court and
remanded.
¶ 81 The Supreme Court held that claims for occupational disease which manifested outside the
300-week period prescribed by the Workers’ Compensation Act did not fall within the purview
of the Workers’ Compensation Act, and, therefore, the Workers’ Compensation Act’s
exclusivity provision did not preclude injured employees from filing common-law claims
against their employers. In reaching this conclusion, the court stated:
“[T]he consequences of Employers’ proposed interpretation of the Act to prohibit an
employee from filing an action at common law, despite the fact that [the] employee has
no opportunity to seek redress under the Act, leaves the employee with no remedy
against his or her employer, a consequence that clearly contravenes the Act’s intended
purpose of benefitting the injured worker. It is inconceivable that the legislature, in
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enacting a statute specifically designed to benefit employees, intended to leave a
certain class of employees who have suffered the most serious of work-related injuries
without any redress under the Act or at common law.” (Emphasis in original.) Tooey,
81 A.3d at 864.
¶ 82 The Tooey decision is persuasive, as is the decision of the appellate court below which, in
the words of Professor Larson’s treatise, “refused to follow the twisted logic *** that would (1)
bar the claim because it was unknown at the time the statute of repose expired and (2) bar the
civil action because of the exclusive remedy provisions of the state’s workers’ compensation
law.” 9 Arthur Larson et al., Larson’s Workers’ Compensation Law § 100.05(3)(b) (2015).
¶ 83 For the reasons set forth above, I strongly disagree with the majority’s decision in this case,
and I therefore dissent. I would affirm the judgment of the appellate court.
¶ 84 JUSTICE KILBRIDE joins in this dissent.
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