News & Articles

09 November 2015

ILLINOIS LAW UPDATE: Workers Compensation Exclusive Remedy Provision

The Illinois Supreme Court appears to have settled the issue of whether an asbestos claim can still be filed in civil court by an employee against his employer, notwithstanding the exclusive remedy provision of the Illinois Workers Compensation Act (the “Act”) icon Folta_v_Ferro_-_workers_comp_-_IL_SC_op_-11-4-15.p (102 KB). Mrs. Folta filed a claim on behalf of her deceased husband against his former employer, Ferro Engineering, for mesothelioma which he allegedly developed as a result of asbestos exposures he experienced during his employment. Ferro moved for a dismissal which the trial court granted pursuant to the exclusive remedy under the Act. The Appellate First District Court reversed that decision holding that an injured employee may bring a common-law action against his employer where “the injury is not compensable under the Act.” 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. The Appellate court therefore found that Mrs. Folta’s lawsuit against her husband’s employer was not barred by the exclusivity provision. The Illinois Supreme Court reversed stating that the clear language of the statute requires dismissal of plaintiff’s claim under the exclusive remedy provision referring to the statute of repose as an absolute bar. The court reasoned that Mr. Folta’s inability to file a claim, through no fault of his own but rather due to the nature of his disease, is not a consideration that is relevant to a statute of repose and that notwithstanding the harsh result, it is not up to the court but rather the legislature to change the statute.

Of note is the fact that an injury not being compensable under the Act is one of the four types of exceptions to the exclusive remedy provision set forth by the Illinois Supreme Court in Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990). The court took that case into consideration in analyzing this case but said that because the injury fell squarely within the types of injuries covered by the Act, the employer’s liability is governed by the Act and not by whether or not the claimant is able to file a claim.