In what an Illinois Appellate Court described as a case of first impression in Illinois, the court reversed the Cook County asbestos judge’s dismissal of a direct claim by an employee against a former employer for a personal injury allegedly caused by inhalation of asbestos fibers during his employment. See Folta v. Ferro Eng'g, 2014 IL App (1st) 123219 (Ill. App. Ct. 1st Dist. June 27, 2014). James Folta allegedly inhaled asbestos fibers between 1966 and 1970 at Ferro Engineering, and was diagnosed with peritoneal mesothelioma 41 years later. The Illinois Workers Compensation Act has 25-year-since-exposure statute of repose (820 ILCS 305/6(d)), and the Worker’s Occupational Disease Act has a 3-year statute of repose for asbestos-related diseases (820 ILCS 310/1(f)) (a worker is entitled to compensation only if disablement occurs within three years of the worker’s last exposure).
The First District (Cook County, Chicago, Illinois) focused on one of the four recognized exceptions to the exclusive remedy provision of the Acts, namely that exclusivity does not extend to claims that are “not compensable under the Act.” See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990). The other three exceptions are: (1) the injury was not accidental; (2) the injury did not arise from his employment; and (3) the injury was not received during the course of employment. See id. The court rejected the defendant’s proposed interpretation of the term “non-compensable” as being “non-compensable only if it does not rise out of and in the course of employment” because such an interpretation would render the other recognized exceptions meaningless.
The court relied in part upon a 5th District (covering Madison County) case that held that the claimed injury was non-compensable and not barred, there, a claim for emotional suffering without medical or hospital bills, or lost work. See Toothman v. Hardee's Food Sys., 304 Ill. App. 3d 521 (5th Dist., 1999). In Toothman, as in Folta, the court rejected the defendant’s argument that compensability meant “arising out of or in the course of” one’s employment.
Folta also relied upon Schusse v. Pace Suburban Bus Div. of the Reg'l Transp. Auth., 334 Ill. App. 3d 960 (1st Dist., 2002), where an employee brought a negligent spoliation claim against his employer. That decision was based upon the distinction under Illinois law between damages for spoliation and damages for the underlying injury, where the spoliation damages were not recoverable under the Acts.
The Folta court’s definition of “compensability” focused solely on the issue of recoverability, which is evident in the court’s most succinct holding, that Plaintiff’s injury was “quite literally not compensable under the Act, and that all possibility of recovery is foreclosed because of the nature of Plaintiff’s injury.” Folta, 2014 IL App (1st) 123219, at 14. The court rejected the defendant’s claim that this decision would lead to obscure results where, e.g., employees could bring a direct action against an employer in every case in which the Industrial Commission denied the workers compensation claim, explaining that the decision was limited to circumstances in which a potential claim under the Act was time-barred before the claimant learned of the claim.
Missing from the court’s opinion is any differentiation of the types of injuries and damages that the Acts were originally meant to address. For example, in Toothman, the Court held that the claim was not compensable because it was not the kind of injury that the Act recognized i.e., it was not a claim for personal injury damages supported by medical and hospital bills or other concrete damages. The same was true in Schusse, where the court explained: “Generally, only medical bills and temporary or permanent, partial or total disability are compensable under the Act,” (citing 820 ILCS 305/8) and that spoliation damages were different in kind, and therefore, not “compensable.” See Schusse, 334 Ill.Ap.3d at 968 (explaining that “the spoilation of evidence alleged in this case did not generate medical bills, require plaintiff to take time off from work, or seek work-related medical treatment”). The Folta court also did not address the potential scenario where an employer elects to forego the affirmative defense of either statue of repose in any forthcoming or pending Workers Compensation claim, thus potentially making an otherwise non-compensable claim compensable.
The import of this decision, at least absent further appellate review, is manifest, and alters the legal landscape with respect to direct claims against one’s employer for asbestos-related injuries, which frequently do not manifest until all relevant statues of repose have elapsed. Such direct claims were consistently barred in both Cook County and Madison County Illinois by the judges presiding over the respective asbestos dockets. This dramatic change portends a massive influx of new case filings and significant motion practice by current Illinois plaintiffs to seek leave to amend their pleadings to add direct employers. This, in turn, may create a whole new subset of newly-invigorated legal and factual analyses related to each employer’s relative role in the causation of the claimed injury, which plaintiffs will now be obligated to address. As of this posting, the defendant in Folta has not moved for leave to appeal to the Illinois Supreme Court.